DOJ’s updated antitrust compliance guidance focuses on AI, ephemeral messaging, and whistleblower protections

The US Department of Justice (DOJ)'s Antitrust Division recently updated its guidance on the evaluation of corporate compliance programs for criminal antitrust violations (the Antitrust ECCP), which federal prosecutors use to evaluate the compliance efforts of corporate subjects of the department’s criminal investigations.

The Antitrust ECCP, updated on November 12, 2024, provides companies a useful blueprint for the design of their antitrust compliance programs, is consistent with recent guidance from DOJ's Criminal Division, and should “allow[] companies to craft a coherent, holistic compliance program taking into account the company’s lines of business and risk profile.”

Designed around the same core principles as both the 2019 guidance that it replaces and the Criminal Division’s guidance, the updated Antitrust ECCP adds significant details regarding the Antitrust Division’s expectations of compliance in several important areas, including:

• Artificial intelligence (AI)- and algorithm-driven revenue management tools


• The use of ephemeral messaging and personal devices for business purposes


• Fostering a compliance culture that flows not just from the top but from managers at all levels


• Protections for and preservation of whistleblowers’ incentives to self-report, and


• Possible applicability beyond the criminal context.

Background

The Antitrust Division’s guidance updates its 2019 policy on corporate compliance.

Both the 2019 and 2024 Antitrust ECCPs direct prosecutors to center their inquiry on the design, application, and effectiveness of corporate compliance programs. In the context of the Antitrust ECCP, prosecutors are directed specifically to ask:

1. Did the program address and prohibit criminal antitrust violations (price-fixing, bid-rigging, and market allocation conspiracies)?


2. Did the program detect and facilitate prompt reporting of a violation?


3. To what extent was senior management involved in the violation?

Identical to the ECCP policy of DOJ's Criminal Division, the Antitrust ECCP directs prosecutors to consider eight factors in answering those questions, including the format and comprehensiveness of the program; culture of compliance; corporate risk assessment efforts; training, monitoring, and auditing; and systems for reporting and investigating potential violations.

For companies that wind up in DOJ’s crosshairs, the potential benefits of an earlier investment in an antitrust compliance program could be significant. Under the policy, prosecutors consider compliance both when deciding on criminal charges and recommending sentences for violations. Favorable charging decisions could include deferred prosecution agreements that create fewer collateral impacts in the event of a violation, and crediting good compliance at the sentencing phase could lead to governmental fine recommendations that could be tens of millions of dollars less in the Antitrust Division’s largest matters. In this way, a criminal antitrust compliance program can act as a valuable corporate insurance policy in the event of a violation.

The Antitrust ECCP recognizes that perfection is not required to find a compliance program effective, as even the best compliance programs will not prevent all criminal activity by employees. It also recognizes that corporate size will impact the resources available to corporations for antitrust compliance, and directs prosecutors to consider efforts by multinational corporations to meet standards across multiple jurisdictions and areas of law.

Substantive updates

The updated Antitrust ECCP addresses a number of key enforcement priorities and policies that have developed since the original 2019 guidance.

AI usage in focus

The Antitrust ECCP updates prominently feature DOJ’s specific focuses on the development and deployment of antitrust-compliant AI and algorithmic revenue-management tools, which reflect the concerns of competition enforcers around the world that these emerging technologies not be used to facilitate collusion between competing businesses by making it easier for them to coordinate prices or share competitively sensitive information.

The guidance stresses the need to address the antitrust risks of AI tools, which are defined expansively to include “machine learning …, reinforcement learning, transfer learning, and generative AI” of any complexity, with a cautionary note that “no system should be considered too simple to qualify as a covered AI system.”

DOJ expects that – from the moment AI systems are deployed – corporate compliance should ensure that company personnel understand their potential antitrust-specific risks and monitor or audit their use to more quickly “detect and correct decisions made by AI … that are not consistent with the company’s values.”

Ephemeral messaging and other communications channels

To prove a criminal antitrust conspiracy, prosecutors must establish an agreement between competitors to fix prices, rig bids, or allocate markets. This, in turn, leads them to focus on communications between and about competitors. It is therefore natural for the updated Antitrust ECCP to add clarity regarding, and place significant weight on, DOJ’s expectations of corporate responsibilities for employees’ use of modern channels of communication.

According to the guidance, a compliant company must be able to account for all “electronic communications channels that its employees use,” including “ephemeral messaging or other non-company methods of communication,” such as personal devices in businesses that have bring-your-own device (BYOD) policies. An effective antitrust compliance policy should establish guidelines on both the permissible use of these means of communications and employees’ obligations to preserve corporate communications that occur over them.

Tone from the middle

While “tone at the top” – ensuring that top executives and board members support compliance efforts – has been an abiding principle of corporate compliance, the Antitrust ECCP adds expectations of managers farther down the corporate hierarchy “to set the tone from the middle” with regard to criminal antitrust compliance, including “managers at all levels.”

The inclusion of this language echoes similar changes in the Criminal Division policy and reflects ample Antirust Division experience. Numerous criminal antitrust investigations have uncovered endemic organizational problems in which managers actively implemented criminal antitrust conspiracies, resulting in the individual prosecutions of numerous manager-level employees for their roles in the conduct.

Encouraging self-reporting and protecting whistleblowers

For over 30 years, the Antitrust Division has used its leniency policy and leveraged other incentives, such as potentially significant discounts to corporate fines, to encourage self-reporting and cooperation with prosecutors in criminal antitrust investigations.

Like its 2019 predecessor, the updated guidance suggests that the Antitrust Division’s determination of whether a compliance program worked in practice will be, in large part, determined by whether it led the company to act similarly to a leniency applicant: detecting, remediating, and self-reporting potential criminal antitrust violations.

The guidance also reflects DOJ’s growing concerns about protecting individual whistleblowers from corporate efforts that might dissuade coming forward with information about potential violations.

Under the updated policy, effective antitrust compliance should not chill reporting potential criminal antitrust violations – either internally or to government authorities – through the use of nondisclosure agreements (NDAs) or other restrictions on current or former employees. An effective program also should train employees on the company’s anti-retaliation policies, as well as their protections under 2020’s Criminal Antitrust Anti-Retaliation Act (CAARA).

Application beyond criminal matters

While the Antitrust ECCP is specific to criminal antitrust violations, it adds language noting that a well-designed antitrust compliance policy “should also minimize risk of civil antitrust violations.” This is a noticeable change from the 2019 guidance, and the updated policy signals potential benefits for corporations beyond the potential charging and sentencing relief that are available only in criminal cases.

Under Section 1 of the Sherman Act – the statute under which nearly all criminal antitrust violations are charged – the Antitrust Division may exercise its discretion whether to pursue matters criminally or civilly. Recently, the division has pursued some alleged Section 1 violations civilly, including some based on theories of unlawful information sharing.

The Antitrust ECCP suggests that, in seeking to resolve investigations into civil antitrust violations, the Antitrust Division’s prosecutors can consider and may reward exceptional corporate compliance in the relief they seek, such as by not seeking to impose onerous reporting requirements or even corporate monitors.

Is it a durable document?

The timing of the updated Antitrust ECCP’s release prompts questions about whether it will have a life beyond the Biden administration that issued it. A number of factors, however, suggest that it will remain viable into and through the second Trump administration and beyond:

• Criminal antitrust – which the Supreme Court has called the "supreme evil of antitrust" – historically has been treated as an apolitical enforcement priority, with the Antitrust Division’s top criminal enforcement official currently (and typically) a career official who is not politically appointed.


• Even though the 2024 updated Antitrust ECCP adds significant additional details to its 2019 predecessor, it is organized around the same principles as both that earlier document – which originated in the first Trump administration – and those promulgated by other DOJ components.


• Substantive focus areas added to the Antitrust ECCP reflect enforcement priorities that extend beyond just the US. Ensuring antitrust-compliant AI usage, for instance, is a priority of competition enforcers around the world that requires corporate attention, regardless of the current US enforcement environment.


• Because of the multitiered system of US antitrust enforcement – including state attorney general investigations and prosecutions and private class action suits that seek treble damages, which operate independently of federal enforcement – and the potential for criminal antitrust violations to have cross-border impacts, effective compliance can allow companies to get ahead of potential problems that carry serious and reverberating consequences beyond just DOJ prosecution.

Takeaways and practical guidance

The Antitrust ECCP suggests that revisiting corporate antitrust compliance programs now could pay dividends over the long run. Businesses can view the updated guidance as a roadmap for program design and improvement, and in the short term take steps to:

• Ensure the antitrust compliance of any AI- and algorithm-based tools they use. Especially as they develop or deploy AI revenue management and pricing tools, prudent businesses will understand their AI tools (including those that are outsourced from third parties), ensure that employees understand the competition risks associated with them, and regularly audit these tools for antitrust compliance.


• Establish clear and workable policies on the use of ephemeral messaging for business purposes – particularly by employees with responsibilities for core commercial functions like sales, pricing, and decisions related to competitive bidding – that educate employees using these channels on their obligations to preserve communications and allow the corporation to audit them if necessary.


• Stress the role of managers and others below the board and C-Suite in creating a culture of criminal antitrust compliance and consider the structural incentives – such as those around compensation and promotion – for them to amplify this message.


• Make clear in official compliance documents and emphasize in employee trainings corporate anti-retaliation policies, include notice of employee protections under CAARA, and review existing NDAs for provisions that could be construed as prohibiting voluntary reporting to the government.

For questions regarding these policy changes and their possible impact on business, please contact the author or your DLA relationship partner. Our team includes agency veterans who are familiar with the applications of these policies, a globally recognized AI practice, and nationally ranked compliance attorneys who can assist you in navigating the unique compliance challenges reflected in the updated Antitrust ECCP.