Petrogram - Winter 2012 - (Page 20)
Ignorance Is Not Bliss
them. That belief is sound if the marketer has in place an antitrust compliance program and regularly reviews that program with its employees who deal with its customers and suppliers. If that is not the case, then the sense of security that a marketer feels is most likely a false one. A good example is the recent case that was reported in the March 26, 2012, edition of Oil Express. Three gasoline retailers pleaded guilty to price ﬁxing in Ontario, Canada, and the Court ﬁned them a total of more than $2 million. In addition, each of the companies is subject to court-ordered compliance reporting for 10 years and required to educate their employees about the Canadian antitrust laws. An example closer to home is the Florida marketer who is reported to have paid a high six-ﬁgure amount to settle price-ﬁxing claims brought by Florida’s Attorney General. If not for the settlement, the marketer faced a potential multi-million dollar judgment. On top of the civil penalties are thousands upon thousands of dollars in attorney’s fees the marketer had to pay. Government antitrust lawsuits are not the only risks facing the uninformed marketer. There are examples of suits brought on pretty shaky evidence by private plaintiffs within the past decade. Those suits have resulted in enormous legal fees over several years to the targeted marketer, as well as large dollar settlements to avoid the risk of a “little guy versus big guy” jury award. The name of that game is to ﬁnd a seemingly innocent but potentially damning act by one or more of the marketer’s employees and ﬁle an antitrust suit. Then the door opens to the pot of gold at the end of the rainbow – triple damages and attorney’s fees. Another kicker is that unlike most areas in the marketer’s business that are covered by insurance, antitrust suits are not. Even if the targeted defendant ultimately prevails or settles, insurance is not there to pay for the legal expenses of defending the claim or the
By Geoff Schwartz, Partner, Guilday, Tucker, Schwartz and Simpson, P.A.
rowing up I was an ardent fan of MAD magazine. The image of its anti-hero, the goofy-looking guy, still flashes before me from time to time causing a chuckle or two. Then there’s his motto for living – “What, Me Worry?” – printed boldly on the front page over his cartoonish picture. You might be asking yourself, what the heck does the goofy guy on the cover of MAD magazine have to do with the topic of this article? Plenty. When it comes to steering clear of the antitrust icebergs out there in the sea of commerce, the attitude of “What, Me Worry?” is not very smart. It may not cause your business to suffer the fate of the Titanic; but the chance that it might run aground like the Exxon Valdez is too high a risk for the prudent petroleum marketer to take. Antitrust compliance seems to have disappeared off the legal radar screen for many petroleum marketers. Perhaps the reasons for this are (1) a sense that a potential antitrust violation is only a risk that really big companies face (i.e., the majors or Microsoft), (2) there are a lot more immediate business and legal issues to wrestle with day to day, or (3) governmental enforcement agencies are directing their resources to ﬁnancial institution misconduct and other white collar crime. Whatever the reasons, many petroleum marketers seem secure in the belief that antitrust problems are for someone else – not
settlement. Plus, in only the rarest of circumstances is a defendant who wins allowed to recover attorney’s fees from the plaintiff. So back to the point of replacing that false sense of security with something that works. A thorough antitrust compliance program is the most recognized way to install an effective antitrust security system. Regardless of size, wellmanaged companies that are dedicated to risk prevention in all areas of their business include an antitrust compliance program. It does not have to be complicated or overly expensive. A compliance program should be tailored to the risk areas speciﬁc to each company. It’s not necessary to use an earthmover when a one-ton truck will get the job done. Most of us learned (or should have learned) at our mother’s or father’s knee that an ounce of prevention is worth a pound of cure. There are few better examples of the practical wisdom in that simple statement than an effective antitrust compliance program. ❍ Geoff Schwartz is a partner with Guilday, Tucker, Schwartz and Simpson, P.A. He has spent most of his 32-year legal career practicing in the areas of petroleum marketing, antitrust and other trade regulation laws. You can reach Geoff on the Petroleum Hotline® at 800-226-7091 or firstname.lastname@example.org.
20 | View past issues of Petrogram online at www.fpma.org.
Table of Contents for the Digital Edition of Petrogram - Winter 2012
2012 FPMA Patron Members
Advertisers’ Centerspread Marketplace
Congress Postpones Big Decisions in 2012
Annual Golf Tournament a Success!
Out and About the Industry
Antitrust Compliance: Ignorance Is Not Bliss
FPMA 2013 Calendar of Events
Index of Advertisers/Advertiser.com
Petrogram - Winter 2012