The US Department of Justice Antitrust Division (DOJ or Division) recently released a revised Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (Guidance). The Guidance reflects how the Division assesses the effectiveness and adequateness of a company’s antitrust compliance program. The Guidance offers insight into the Division’s evaluations of antitrust compliance programs at the charging and the sentencing stages of a criminal prosecution but is equally applicable to civil compliance. Adherence to the Guidance improves the chances a company can receive leniency and reduces the risk of prosecution should a violation occur.

Nearly all companies should revisit their antitrust compliance program to ensure their employees are receiving up-to-date antitrust guidance, especially those employees who interact or collaborate with competitors, bid on government contracts, manage pricing, negotiate distribution contracts, or set wages.

Overview of the Guidance

The Guidance changes the 2019 version in four key areas. First, the Guidance is aligned with the September 2024 DOJ Criminal Division’s Evaluation of Corporate Compliance Programs (ECCP). Second, the Guidance underscores the importance of company leadership and management in creating a culture of compliance within the organization. Third, the Guidance emphasizes that antitrust compliance programs must be tailored to the company’s industry, business, and risk profile. Fourth, the Guidance reminds companies to evaluate employee communication methods and to educate employees on document preservation requirements.

The Guidance also expands the DOJ’s evaluation of compliance programs to include “wage fixing and conspiracies to suppress other terms of price competition” and “monopolization, as well as obstructive acts that imperil the integrity of antitrust investigations.”

Key Changes

Evaluating the Company’s Commitment to Compliance

Considerable revisions are designed to confirm a company’s compliance program works in practice and is supported and encouraged by company leaders and managers. For example, additions include questioning whether a program is adequately resourced and empowered; what emphasis is placed on antitrust compliance; whether the company’s board, senior leadership, and managers at all levels are endorsing compliance and conducting themselves in accordance with the policies; and whether those with hiring and incentive responsibilities reinforce ethics. The Guidance also suggests that the company’s board have compliance expertise, visibility, and control. The Guidance’s emphasis on “Culture of Compliance” heavily borrows from the 2024 ECCP Guidance.

Tailoring the Compliance Program

The Guidance recommends companies tailor their antitrust compliance programs to their industry, products, and risks. In other words, the Division will consider whether a company is using a cookie-cutter approach in evaluating the effectiveness of the company’s antitrust compliance program. If a company is operating within an industry that has a history of antitrust violations, the company should incorporate that history into its compliance program, which an out-of-the-box compliance solution will not do. Every company should evaluate the risk of antitrust violations within its industry—by its competitors, suppliers, or customers—and incorporate those findings into its antitrust compliance program, including educating employees responsible for competitor collaborations, pricing, and government contract bidding/negotiations.

In addition to industry risk, companies should assess their use of technology. The Guidance identifies artificial intelligence and algorithmic revenue management as tools that could increase the risk of an antitrust violation. The Division is skeptical of technology-driven pricing and is pursuing alleged antitrust violations deriving from algorithmic pricing and information sharing.

Preserving Electronic Communications

Consistent with ECCP and the Division’s public statements on ephemeral messages, the Guidance clarifies that compliance programs should include mechanisms to preserve electronic information, including communications. The Division highlights that compliance policies should address the preservation of ephemeral messaging and noncompany methods of communications (i.e., employee communications on personal devices). The Division is monitoring document preservation and pursuing remedies when auto-delete functionality is not turned off.

Next Steps

Given the emphasis on practical commitments to antitrust compliance and to tailoring antitrust compliance programs, companies should revisit their compliance programs to ensure alignment with the Guidance and ECCP.

For a discussion of these and additional changes to the Guidance and to evaluate your antitrust compliance program, contact Robin Crauthers, Franklin Turner, or Alexander Major.