DOJ Antitrust Division Adds to Guidance on the Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations

11/20/2024|6 minute read

Key Takeaways

• Under recent revisions to the DOJ Antitrust Division's guidelines on the Evaluation of Corporate Compliance Programs, prosecutors now consider additional criteria when making charging and sentencing decisions in criminal antitrust investigations.
• These additions are consistent with DOJ's broader guidance, including revised guidance issued by the DOJ Criminal Division in March 2023 and September 2024.
• Although the guidance is intended to be a resource for prosecutors' decision-making, it is also a tool that companies can use to consider the effectiveness of their existing antitrust compliance programs.

Background

On November 12, 2024, the DOJ Antitrust Division updated its Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (ECCP), which was initially issued in 2019. The ECCP provides guidance to prosecutors about how to evaluate corporate compliance programs during criminal antitrust investigations, including when deciding whether to charge a company and also when crafting sentencing recommendations. The Antitrust Division's additions to its ECCP notably track many of the recent changes made to the DOJ Criminal Division's guidelines on Evaluation of Corporate Compliance Programs, for example, by emphasizing the DOJ's continued focus on leadership oversight, emerging technologies and reporting procedures. However, there are several antitrust-focused items that are critical for companies to consider.

Key Additions to the Antitrust Division's Updated ECCP

Several additions to the Antitrust Division's updated ECCP guidance are worth highlighting:

• Civil Liability: A strong culture of compliance at a company can help prevent both civil and criminal antitrust violations and allow for prompt self-disclosure if a violation occurs. The ECCP notes that although the guidance is focused on assessing criminal risk, "a well-designed antitrust compliance program should also minimize risk of civil antitrust violations."[1] Importantly, the guidance instructs that civil teams at the DOJ will be considering the same factors when assessing the effectiveness of compliance programs relating to resolving civil conduct investigations.
• The Role of Antitrust Compliance Vis-à-vis a Company's Broader Compliance Program: The ECCP considers how a company's antitrust compliance program fits within the company's broader compliance program and also questions whether antitrust compliance has received appropriate emphasis in light of the practical antitrust-related risks that the company is facing.[2] This emphasizes that while companies may be moving toward a more holistic, enterprise-wide view of managing compliance risk rather than in silos, the DOJ is thinking about compliance risk in the same way.
• Antitrust Compliance Programs Should Address Electronic Communications: The ECCP adds guidance about electronic communications, noting that when considering the design and effectiveness of a company's antitrust compliance program, prosecutors should evaluate factors such as: how antitrust policies and procedures apply to corporate "electronic communications channels"; whether these policies and procedures "vary by jurisdiction and business function, and why"; the "mechanisms ... in place to manage and preserve" such communications; and whether there are "clear" corporate antitrust policies and procedures that apply to the use of ephemeral messaging or similar noncompany communication platforms.[3] The emphasis on the preservation of such business-related electronic data is also consistent with the focus of the DOJ Criminal Division, as highlighted in its March 2023 ECCP revision,[4] and a recent joint statement from the DOJ and Federal Trade Commission.[5]
• Risk Assessments Should Account for New and Developing Technology: In evaluating a company's antitrust compliance program, prosecutors should consider whether the design and breadth of the program accounts for new and developing technology. The updated Antitrust Division ECCP specifically guides prosecutors to ask questions about "artificial intelligence and algorithmic revenue management software," the "antitrust risks" associated with the use of these technologies, whether a company can take steps to mitigate these "antitrust risks," and how quickly the company can recognize emerging technology decisions "made by AI or other new technologies" that are inconsistent with the company's values.[6] The ECCP guidance also adds that prosecutors should consider whether a company trains its employees on the allowable uses of such emerging technologies.[7] Addressing AI and similar technologies has been a key focus area for the DOJ since March 2024, when Deputy Attorney General Lisa Monaco announced that federal prosecutors would seek harsher sentences for crimes utilizing AI and then instructing the Criminal Division to incorporate the risks of AI into the ECCP.[8] Monaco's instructions were implemented in the September 2024 revision to the Criminal Division's ECCP by including a series of guiding questions for prosecutors relating to AI and similar emerging technologies.[9]
• Culture of Compliance Analysis Should Focus on Individuals: The updated ECCP guides prosecutors to focus on the behavior and accountability of individuals, including managers at all levels, individuals on Boards of Directors, and/or other senior leadership, when weighing whether a company is committed to and has created a culture of antitrust compliance. The additions to the Antitrust Division's ECCP guidance state that prosecutors should consider questions such as whether and "[h]ow ... senior leadership and management model ethical behavior to employees," "tolerated antitrust violations in pursuit of new business," or demonstrated the importance of antitrust compliance throughout all levels of the company.[10]
• Incentives Should Promote Compliance: As with the Criminal Division's updated ECCP, the Antitrust Division's ECCP adds specific language emphasizing how prosecutors should consider whether a company's "hiring and incentive structure reinforce[s]" and promotes a culture of antitrust compliance and the commitment to ethical culture.[11]
• Antitrust Compliance Programs Should Be Appropriately Resourced: The Antitrust Division's ECCP guidance now highlights that prosecutors should consider whether a company allocates an appropriate level of resources to its antitrust compliance program. The additions also guide prosecutors to consider how a company's antitrust compliance program is resourced as compared to the resources that the company devotes to other functions, and whether compliance resource requests have been denied.
• Importance of Antitrust-Specific Training: The updated Antitrust Division ECCP guides prosecutors to consider whether a company provides specific antitrust compliance trainings to its employees and whether, among other things, that training teaches employees to recognize antitrust "red flags" and addresses lessons learned from prior antitrust compliance incidents.[12] The guidance states that prosecutors should also consider whether there is a process through which employees can ask questions about the antitrust trainings. Reinforcing the focus on artificial intelligence and emerging technologies, the ECCP guides prosecutors to also consider whether antitrust compliance "training address[es] [the] permissible and nonpermissible uses of new technology."[13]
• Compliance Monitoring and Auditing: When considering how compliance personnel utilize company data to audit and monitor employees, the Antitrust Division ECCP states that prosecutors should weigh whether a company's antitrust compliance program "us[es] data analytics tools" and whether it "monitor[s] and detect[s] decision-making by AI or other technology tools to ensure they are not violating antitrust laws."[14] The guidance also directs prosecutors to consider whether and how compliance personnel amend a company's antitrust compliance program (or not) to account for any prior antitrust violations.
• Reporting and Investigations: The additions to the Antitrust Division's ECCP guide prosecutors to consider how antitrust violations are reported at a company, including whether concerns can be confidentially reported; which facts, issues, or items merit further investigation; and whether a company has a non-retaliation policy in place to protect employee whistleblowers. The new guidance also addresses a company's use of non-disclosure agreements (NDAs), including whether they are "utilized or enforced in such a way that they act to deter whistleblowers."[15] The updated Antitrust Division ECCP makes "clear" that it expects company NDAs and/or similar restrictions on employees to not deter those same employees from being able to "report antitrust violations internally and to government authorities."[16] Of note, this aspect of the Antitrust Division ECCP seems to go beyond the Criminal Division's ECCP, which does not address NDAs as a possible vehicle for preventing whistleblower reporting to the government.

Should an antitrust issue arise, having an effective antitrust compliance program that conforms with DOJ expectations can greatly benefit a company by potentially reducing the monetary penalty that the DOJ might impose and allowing for resolution of the investigation short of prosecution. Companies should review their existing antitrust compliance policies and procedures, ensure that they address these key additions to the Antitrust Division's guidance, and consider updating their policies and procedures to align with this guidance, where appropriate.

The BakerHostetler Cartel and Government Antitrust Investigations Task Force is comprised of attorneys with extensive experience in proactive antitrust compliance counseling and regulatory investigations and litigation. The Task Force includes former DOJ prosecutors, as well as attorneys who are part of both the Antitrust and Competition and White Collar, Investigations and Securities Enforcement and Litigation teams. Please feel free to contact any of our experienced professionals if you have questions about this alert.

[1] U.S. Department of Justice Antitrust Division, Guidance on Evaluation of Corporate Compliance Programs (ECCP) in Criminal Antitrust Investigations (November 12, 2024), at 2, https://www.justice.gov/d9/2024-11/DOJ%20Antitrust%20Division%20ECCP%20-%20November%202024%20Updates%20-%20FINAL.pdf.

[2] Id. at 5.

[3] Id. at 5-6.

[4] U.S. Department of Justice Criminal Division, Guidance on Evaluation of Corporate Compliance Programs (ECCP) (March 2023), at 17, https://www.justice.gov/opa/speech/file/1571911/dl.

[5] Justice Department and the FTC Update Guidance that Reinforces Parties' Preservation Obligations for Collaboration Tools and Ephemeral Messaging (January 26, 2024) https://www.justice.gov/opa/pr/justice-department-and-ftc-update-guidance-reinforces-parties-preservation-obligations

[6] U.S. Department of Justice Antitrust Division, ECCP, at 10.

[7] Id.at 9-10.

[8] Deputy Attorney General Lisa Monaco Delivers Keynote Remarks at the American Bar Association's 39th National Institute on White Collar Crime (March 7, 2024) https://www.justice.gov/opa/speech/deputy-attorney-general-lisa-monaco-delivers-keynote-remarks-american-bar-associations; See DOJ to Corporations - "Knock on Our Door Before We Knock on Yours" (March 11, 2024) https://www.bakerlaw.com/insights/doj-to-corporations-knock-on-our-door-before-we-knock-on-yours/.

[9] U.S. Department of Justice Criminal Division, Guidance on Evaluation of Corporate Compliance Programs (ECCP) (September 2024), at 3-4, https://www.justice.gov/criminal/criminal-fraud/page/file/937501/dl.

[10] U.S. Department of Justice Antitrust Division, ECCP, at 7.

[11] Id.

[12] Id. at 11.

[13] Id. at 12.

[14] Id. at 13.

[15] Id. at 14.

[16] Id.

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