Pandemic-driven remote working hindering antitrust investigations, survey finds

Evidence collection harder given greater volume of data sources, FTI Consulting report shows

A majority of senior in-house counsel and antitrust law firm attorneys say competition investigations have become increasingly challenging since the onset of the pandemic and the shift to remote working, according to a survey by FTI Consulting and Global Competition Review.

The report – Investigations, Data and Compliance – showed that 56% of respondents find evidence collection more difficult because of remote working, with a further 23% finding it significantly more difficult. Chief among those difficulties was data collection, with 70% saying the identification of data sources had been negatively impacted by remote working and 66% citing issues with the completeness of data collection. Roughly 40% of respondents also flagged complications with chain of custody, mobile device collections, data privacy and other technical issues.

Andrea Levine, a managing director in FTI Consulting’s technology segment, said: “The results of this survey were consistent with the trends we’re seeing among our clients, especially in terms of trepidation about the completeness of document collection and production in antitrust investigations.” 

More than half of respondents said the increased use of collaboration platforms and cloud-based tools has made it harder to preserve, process or review data. More than 70% of respondents agree that it has become increasingly important to monitor communications and data with external parties given the greater levels of collaboration.

Tim Anderson, also a managing director in FTI Consulting’s tech segment, said: “Given the clear challenges organisations are facing with managing emerging data sources, information governance has become imperative to antitrust investigation readiness. At a minimum, legal and compliance teams must develop an understanding of the systems used to communicate and collaborate, as well as the data collection and compliance functions enabled within those systems.”

Despite that more challenging compliance backdrop – including the Department of Justice antitrust division’s new compliance programme guidelines for criminal antitrust investigations – more than two-thirds of respondents have not increased their compliance budgets, citing a lack of resources and competing priorities. 

A third of respondents also say they still respond to antitrust investigations reactively rather than proactively in anticipation of an investigation. 

Levine added: “Change – on the regulatory front and across the data landscape – is happening quickly, which can be overwhelming for legal and compliance teams. In the coming year, we’d like to see more companies allocate adequate resources toward assessing their data infrastructure and leveraging existing data to inform and enhance their antitrust compliance programme.”

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