DOJ Updates Antitrust Compliance Guidance to Tackle Modern Challenges

The Department of Justice’s (DOJ) Antitrust Division recently updated its Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations, a guidance that serves as a benchmark for companies to assess and improve their compliance programs. This revision builds on the 2019 guidelines and highlights emerging trends, especially the growing importance of technology, communication tools, and management culture in maintaining robust antitrust compliance.

The most significant updates reflect how businesses can better address modern challenges such as the use of artificial intelligence (AI), new communication tools, and ensuring that compliance isn't just a top-down priority but ingrained throughout all levels of management. Let’s break down the key changes and what they mean for businesses.

With the rise of remote work and digital collaboration, the Antitrust Division is increasingly concerned with the preservation of non-email communications. This includes ephemeral messaging apps (e.g., Signal) and internal communication platforms like Slack and Microsoft Teams. These tools are now commonly used to conduct business, but their transient nature creates challenges for antitrust investigations, where the preservation of evidence is critical.

In response, the DOJ is making it clear that companies must take proactive steps to manage and preserve messages sent through these platforms. This includes implementing retention policies that ensure messages are saved when necessary and establishing guidelines on when employees are required to preserve communications. Companies will now be evaluated on the effectiveness of their electronic communication protocols and how well they balance collaboration with the need for compliance.

Addressing the Antitrust Risks of AI & Pricing Algorithms

Another crucial update in the revised guidance is the inclusion of AI and pricing tools. As companies increasingly turn to AI and algorithmic models to manage pricing, the Antitrust Division is concerned with how these technologies might facilitate anti-competitive behavior, such as price-fixing. The guidance now asks whether a company’s compliance program adequately addresses the risks associated with AI and algorithmic pricing.

This update emphasizes that businesses should not only be aware of the potential for antitrust violations when implementing such tools but must also ensure that their compliance programs are updated to address these risks. The DOJ will expect companies to review their antitrust risk assessments to ensure they include AI-related considerations.

The DOJ’s guidance has also expanded its focus on reporting mechanisms and anti-retaliation policies. In addition to the previously established requirement for companies to create clear pathways for employees to report antitrust violations, the new guidance specifically asks whether companies take steps to ensure investigations are conducted independently, objectively, and are well-documented. This broader inquiry reflects the DOJ's commitment to ensuring that antitrust investigations are both transparent and fair.

Moreover, the guidance puts a stronger emphasis on anti-retaliation protections. It asks whether companies have structures in place to protect employees who report potential violations, including ensuring that non-disclosure agreements (NDAs) don’t prevent employees from speaking out. It also notes that managers at all levels should be trained to understand and uphold these protections, particularly as they relate to the Criminal Antitrust Anti-Retaliation Act.

Culture of Compliance Across All Management Levels

While the previous version of the guidance emphasized the importance of top management’s support for antitrust compliance, the updated guidance takes it a step further by stressing that compliance must be embedded at all levels of management. The DOJ is now focusing on whether managers—beyond just senior leadership—demonstrate and actively promote the company’s commitment to compliance.

This shift highlights that a company’s compliance culture should be consistently reinforced throughout all levels of management. Prosecutors will now assess how well management at all levels communicates and upholds the company’s antitrust principles, ensuring that compliance is not just a top-down directive but a company-wide effort.

For the first time, the Antitrust Compliance Guidance explicitly addresses the role of compliance programs in civil investigations. While the previous guidance was primarily focused on criminal investigations, the updated version acknowledges that a well-established compliance program can significantly influence the outcomes of civil investigations as well. In fact, civil teams are now expected to consider many of the same factors as criminal teams when evaluating whether a company has a sufficient compliance program.

This is an important shift for businesses, as it underscores that strong compliance programs are not just a defense in criminal cases but also a proactive measure in civil investigations, potentially reducing the risk of more severe penalties and the need for external monitors.

Takeaways for Strengthening Antitrust Compliance Programs

The DOJ’s updated Antitrust Compliance Guidance marks a significant evolution in how compliance programs are assessed. It reflects the challenges posed by new technologies and the changing workplace dynamics, particularly around communication and AI. Companies now face more scrutiny on their ability to manage digital communication, address AI-related risks, ensure robust reporting mechanisms, and foster a culture of compliance at all levels of management.

For businesses looking to stay ahead of potential antitrust risks, these updates serve as a clear call to action to adapt their compliance programs to the digital age, strengthen reporting and anti-retaliation protections, and embed compliance throughout the organization. By doing so, companies can better navigate the complex landscape of antitrust law and reduce their exposure to both civil and criminal violations.

The GRC Report is your premier destination for the latest in governance, risk, and compliance news. As your reliable source for comprehensive coverage, we ensure you stay informed and ready to navigate the dynamic landscape of GRC. Beyond being a news source, the GRC Report represents a thriving community of professionals who, like you, are dedicated to GRC excellence. Explore our insightful articles and breaking news, and actively participate in the conversation to enhance your GRC journey.