The updated guidance from the DOJ focused on fostering a culture of compliance and integrating emerging technologies into corporate practices.
In November 2023, the Antitrust Division of the Department of Justice (DOJ) released updated guidance for evaluating corporate compliance programmes in criminal antitrust investigations. This 2024 Compliance Guidance builds upon prior frameworks and underscores the DOJ’s dedication to fostering a culture of compliance across various levels of organisations.
The new guidance reflects a marked emphasis on how companies integrate emerging technologies within their compliance practices, signalling a shift in the DOJ’s evaluation criteria. Among other priorities, the guidance highlights the importance of effective compliance measures in deterring future violations and encourages organisations to actively cultivate a culture of compliance not only from top leadership but throughout all levels of management. This is encapsulated in the concept of a “tone from the middle”, ensuring that compliance responsibilities are not solely relegated to senior executives.
Prior to the 2024 update, the Antitrust Division published guidance in July 2019 designed to reward companies for their investments in developing robust compliance frameworks. The essence of the updated guidance remains consistent, reiterating three fundamental questions for assessing compliance programmes:
- Is the compliance programme well designed?
- Is the programme being applied earnestly and in good faith?
- Does the compliance programme work in practice?
Evaluations will also consider the comprehensiveness of the compliance programme, including risk assessment and monitoring techniques, as well as how these frameworks are tailored to address specific antitrust risks associated with a company’s business model.
A significant addition in the 2024 Compliance Guidance is its application to civil actions. While the 2019 guidance focused primarily on criminal violations, the new directives indicate a similar evaluation standard will be used for civil antitrust violations as well. In seeking to resolve civil investigations, companies can expect civil attorneys to consider the same factors that criminal prosecutors assess when determining the effectiveness of compliance programmes.
Notably, the updated guidance emphasises how organisations should address new and evolving technologies in their compliance frameworks. For example, it encourages companies to develop clear protocols regarding the use of ephemeral messaging and non-company communication methods, ensuring employees understand when such communications must be preserved. The DOJ has also called for a closer examination of how compliance programmes monitor and train employees on the appropriate and inappropriate uses of algorithms and artificial intelligence (AI) in business functions.
Past actions under former Assistant Attorney General Jonathan Kanter highlight this increased scrutiny. Notably, the DOJ has litigated cases involving pricing algorithms alleged to facilitate collusion among competitors. In a defining case earlier this year, RealPage, Inc. faced allegations that its AI-driven pricing tool violated antitrust laws by facilitating unfair competitive practices.
In addition to algorithmic behaviour, the DOJ has taken an assertive stance on ephemeral messaging applications. In recent months, the agency underscored its readiness to impose obstruction charges on counsels whose clients fail to preserve relevant messages, as seen in the case involving Amazon, where executives reportedly used Signal to discuss sensitive antitrust matters.
Looking ahead, the 2024 Compliance Guidance signifies the DOJ’s commitment to enhancing the oversight and enforcement of antitrust regulations, especially in light of advancing technologies. It suggests that companies should establish comprehensive compliance programmes that adapt to existing antitrust risks while fostering an environment of accountability and transparency across their operations.
The updated guidelines reflect not only a proactive approach in detecting and responding to antitrust violations but also an initiative to strengthen defenses against future infractions through robust compliance measures, thereby shaping the future landscape of antitrust enforcement in an increasingly technology-driven business environment.
Source: Noah Wire Services
- https://www.mayerbrown.com/en/insights/publications/2024/11/doj-antitrust-divisions-latest-compliance-guidance-now-covering-civil-implications-whistleblowing-ephemeral-messaging-and-ai – Corroborates the updated guidance on evaluating corporate compliance programs, including the emphasis on civil implications, whistleblowing, ephemeral messaging, and AI.
- https://www.davispolk.com/insights/client-update/doj-antitrust-division-updates-its-corporate-compliance-guidance – Provides details on the updated guidance, including the importance of a culture of compliance, involvement of senior and mid-level management, and the use of technological tools like AI and ephemeral messaging.
- https://www.clearyantitrustwatch.com/2024/11/doj-antitrust-creates-guidance-for-evaluating-antitrust-compliance-programs/ – Supports the guidance on evaluating corporate compliance programs, risk assessment, and the application to civil actions.
- https://www.mayerbrown.com/en/insights/publications/2024/11/doj-antitrust-divisions-latest-compliance-guidance-now-covering-civil-implications-whistleblowing-ephemeral-messaging-and-ai – Highlights the DOJ’s emphasis on companies integrating emerging technologies into their compliance practices and the importance of preserving ephemeral messages.
- https://www.davispolk.com/insights/client-update/doj-antitrust-division-updates-its-corporate-compliance-guidance – Explains the evaluation criteria for compliance programs, including the three fundamental questions and the comprehensiveness of risk assessment and monitoring techniques.
- https://www.clearyantitrustwatch.com/2024/11/doj-antitrust-creates-guidance-for-evaluating-antitrust-compliance-programs/ – Details the alignment of the new guidance with other DOJ guidance and the emphasis on tailoring compliance programs to specific antitrust risks.
- https://www.davispolk.com/insights/client-update/doj-antitrust-division-updates-its-corporate-compliance-guidance – Discusses the importance of a ‘tone from the middle’ in ensuring compliance responsibilities are not limited to senior executives.
- https://www.mayerbrown.com/en/insights/publications/2024/11/doj-antitrust-divisions-latest-compliance-guidance-now-covering-civil-implications-whistleblowing-ephemeral-messaging-and-ai – Mentions the DOJ’s increased scrutiny on the use of algorithms and AI in business functions and the preservation of ephemeral messages.
- https://www.clearyantitrustwatch.com/2024/11/doj-antitrust-creates-guidance-for-evaluating-antitrust-compliance-programs/ – Highlights the application of the new guidance to civil actions and the similar evaluation standards used for civil antitrust violations.
- https://www.davispolk.com/insights/client-update/doj-antitrust-division-updates-its-corporate-compliance-guidance – Details the DOJ’s stance on obstruction charges related to the failure to preserve relevant messages, such as in the case involving Amazon.
