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In November 2024, the Department of Justice Antitrust Division (“DOJ”) published an updated version of its guidance on the Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (“Guidance”). This Guidance, which assists the DOJ when making charging decisions and sentencing recommendations, describes how the DOJ assesses a compliance program’s effectiveness in curbing violations of the Sherman Act, including price fixing, bid rigging, market allocation, and monopolization.
In its updated Guidance, which spans nineteen pages, the DOJ has broadened the scope of the guidance to include civil matters and added guidance focusing on policies applicable to ephemeral messages, new emphasis on the risks associated with AI and other emerging technologies, and information about whistleblowing and anti-retaliation policies. Unsurprisingly, many of these changes align with recent updates to the DOJ Criminal Division’s related guidance, which was updated in September 2024.
Companies operating in the U.S. would be well advised to take this opportunity to evaluate their corporate compliance programs to ensure they reflect the DOJ’s updated priorities. We expect these policies will remain in place come January 2025, as the original version of these guidelines was published in 2019 under the first Trump Administration.
The first key update to the Guidance is that it now extends to civil antitrust matters, in addition to criminal. Going forward, the DOJ’s civil teams will consider “many of the same” factors as criminal prosecutors in assessing the effectiveness of a compliance program. The updated guidance also alerts companies that “a strong culture of compliance can allow a company to steer clear of civil antitrust violations and if violations do occur, to promptly self-disclose and remedy them and cooperate with a civil antitrust investigation.”
The Guidance now places new but unsurprising emphasis on company policies governing the use of electronic communication channels, as well as document retention practices. Specifically, the DOJ notes that it will consider the following questions when assessing a company’s corporate compliance program:
This update follows in the footsteps of a joint press release published by the DOJ and Federal Trade Commission in January of this year, reflecting a similar sentiment. The press release notes that “companies and individuals have a legal responsibility to preserve documents when involved in government investigations or litigation” and that “this preservation responsibility applies to new methods of collaboration and information sharing tools, even including tools that allow for messages to disappear via ephemeral messaging capabilities.”
In line with recent changes to the DOJ Criminal Division’s related guidance, the Guidance now addresses AI and other evolving technologies. The DOJ indicates that it will consider, among other things, which technologies are used, whether a company assesses the antitrust risk associated with such tools when they are deployed, what steps a company takes to mitigate the risk associated with its technology, whether compliance personnel are involved in the deployment of AI and other technologies to assess associated risks, and the extent to which employee training reflects these considerations.
As an example of such technologies, the DOJ explicitly references algorithmic revenue management software, technology which is at the heart of the DOJ’s enforcement action against RealPage.
Over the course of 2024, the DOJ’s Criminal Division has been expending significant resources creating incentives for whistleblowers to come forward, including introducing a new Whistleblower Rewards Program in August 2024. In this context, it is unsurprising to see that the Guidance features new language addressing whistleblowing and anti-retaliation policies.
The Guidance now indicates that an effective compliance program should allow employees to “report potential antitrust violations anonymously or confidentially and without fear of retaliation.” The Guidance asks a number of questions about how employees report violations, the implications of reporting a violation, how companies decide what violations to investigate, and whether companies that use non-disclosure agreements or other mechanisms still allow employees to report conduct without fear of retaliation.
The updated Guidance emphasizes several crucial elements that should feature in every company’s corporate compliance program, namely restrictions on the use of ephemeral messaging, document retention policies, controls associated with the use of new types of messaging platforms and technologies, including AI, and policies designed to encourage employees to report potential misconduct without fear of retaliation.
18 November 2024
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