The US Department of Justice’s Antitrust Division has updated its guidance on the evaluation of corporate antitrust compliance programmes, a move aimed at further refining how companies should approach compliance in contexts increasingly influenced by advanced technologies and shifting legal standards. The revised document, titled “Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations,” was released in November 2024 and updates the prior version from 2019. The latest guidance reflects a growing focus on areas such as civil antitrust implications, whistleblower protections, and the integration of artificial intelligence (AI) in business processes.
Fundamental questions central to the evaluation of compliance programmes remain unchanged. The Antitrust Division will assess whether a corporation's compliance programme is well-designed, whether it is applied earnestly and in good faith, and whether the programme is effective in practice. As per the guidance, companies that aim to navigate the complexities of antitrust law must design compliance programmes that go beyond minimal training provisions—emphasising the necessity for ongoing, tailored, and effective education on antitrust matters.
The updated guidance outlines a thorough checklist for developing an effective antitrust compliance programme. This includes ensuring that the programme is comprehensive and integrated into everyday business practices, fostering a strong culture of compliance at all organisational levels, and establishing clear reporting structures for antitrust concerns. Furthermore, it highlights the importance of risk assessment procedures that are continually updated to reflect both changes in business and emerging technologies like AI and algorithmic pricing.
A prominent inclusion in the 2024 updates is the emphasis on civil antitrust implications, with the Antitrust Division acknowledging that a robust compliance programme could minimise the risk of civil violations. Companies are encouraged to promptly self-disclose any civil antitrust violations they may encounter, as this could assist in mitigating potential legal repercussions.
Moreover, the guidance now includes specific passages concerning the use and preservation of ephemeral messaging platforms. Companies must evaluate which electronic communication channels are employed for business communications and implement measures to manage and safeguard business-critical information. The Antitrust Division’s evolving interest in ephemeral messaging reflects broader trends in corporate governance and compliance practices.
AI and other rapidly developing technologies also feature significantly in the revised guidance. The Antitrust Division will now scrutinise how companies incorporate these technologies into their risk management frameworks. They will assess how organisations mitigate risks associated with AI and algorithmic systems, as well as whether compliance training adequately instructs employees on permissible and impermissible uses of such technology.
The updates to the guidance further address the importance of an effective whistleblowing process, highlighting the necessity for companies to ensure that antitrust complaints are thoroughly investigated and that confidential reporting structures are functional and protective of whistleblower anonymity. This focus on protentions for whistleblowers follows the Department of Justice’s introduction of a new corporate whistleblower awards programme earlier in August 2024, signalling an intensified commitment to support those who report violations.
In conclusion, businesses and compliance teams are urged to align their antitrust compliance initiatives with the latest guidelines established by the Antitrust Division. These updates reflect the DOJ's commitment to address contemporary challenges and the evolving landscape of corporate governance and compliance, specifically with respect to emerging technologies, communication practices, and ethical conduct within organisations. Understanding these adjustments will be critical for companies aiming to navigate the complexities of antitrust compliance effectively.
Source: Noah Wire Services