The US Department of Justice Antitrust Division has updated its guidelines for the Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (AT ECCP). The AT ECCP updates include several important areas of focus including artificial intelligence and emerging technologies, company culture, electronic communications, and discovering a violation and remediation.
The antitrust-specific guidance follows the Criminal Division’s September 2024 revision of its corporate compliance guidance.
The AT ECCP is intended to help Antitrust Division prosecutors assess the effectiveness of corporate compliance programs during a criminal investigation. In evaluating the design and efficacy of antitrust compliance programs, DOJ considers the following elements:
According to DOJ’s corporate compliance guidance, the effectiveness of a company’s antitrust compliance program can impact DOJ’s decision to prosecute or resolve antitrust investigations.
Artificial Intelligence and Emerging Technologies
The AT ECCP introduces guidelines for technological advancements, including AI, that have largely been the focus of the Antitrust Division over the past few years. Specifically, a party’s risk assessment should address its use of new technologies, including AI and algorithmic revenue management software. Companies should evaluate how newly deployed technologies impact their business and ensure that antitrust legal and compliance personnel understand the potential for these tools to enable price-fixing and other antitrust risks.
To mitigate risk, companies should ensure that their risk assessments include a discussion of whether the company has the ability to “detect and correct decisions made by AI or other new technologies that are not consistent with the company’s values” and, if not, should establish effective mechanisms to do so.
Company Culture
The AT ECCP acknowledges that compliance must come from “managers at all levels” of the company and that there is a need for all managers to “set the tone” and create a “culture of compliance.” Compliance programs must include confidential reporting mechanisms and avoid any policies that may discourage whistleblowers from reporting violations. A well-designed compliance program will train employees on antitrust compliance procedures and policies that are specifically tailored to the industries in which the organization operates and include any “emerging risks as the company’s business environment changes.”
To that end, compliance programs should include regular audits to determine whether the program itself should be amended to include new antitrust risks. Trainings must clearly be focused on “detecting and deterring antitrust violations” and not “making [antitrust violations] harder to detect.” Part of the evaluation of a compliance program will include whether a company has dedicated an “appropriate level of resources” to compliance compared to resources provided to other operations, including the business.
Electronic Communications
The AT ECCP also now includes questions about a company’s management of certain communication channels, including “ephemeral messaging” and “non-company methods of communications.” A robust compliance program must have clear guidelines surrounding usage, preservation, collection, production, and deletion of electronic communications, including discussion of the rationale for the company’s approach to what preservation or deletion settings are available to its employees.
Discovering a Violation and Remediation
The AT ECCP provides insight into how DOJ may evaluate a company’s compliance program during an investigation and at the time of charging or sentencing. For example, DOJ may look at the existing program at the time of the offense and whether the company implemented subsequent improvements to the program to prevent similar violations from reoccurring.
The AT ECCP offers valuable perspective on how DOJ evaluates antitrust compliance programs in criminal investigations but also notes that companies “should expect the civil team to consider many of the same factors when assessing the effectiveness of their compliance program.”
Ultimately, having an effective and robust antitrust compliance program in place not only assists with early detection to prevent potential violations, but also puts a company in a better position to consider participating in DOJ’s Leniency Program and/or to demonstrate its commitment to antitrust compliance in its defense. As new technologies emerge and businesses evolve, companies must evaluate their antitrust compliance programs to ensure that they account for the new ways in which they are operating.
Law clerk Amir Ali contributed to this LawFlash.
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