On November 12, 2024, the Antitrust Division of the United States Department of Justice (DOJ) published updated guidance for its Evaluation of Corporate Compliance Programs in Antitrust Investigations. First published in 2019, the DOJ has updated its guidance several times since.  The guidance is intended to educate the public and to guide prosecutors in making charging decisions and sentencing recommendations for criminal antitrust violations. 

The November 2024 guidance contains a number of important considerations for companies structuring their antitrust compliance and monitoring efforts.  Among the more significant inclusions in the November guidance are the following:

  • A continuing emphasis on clear, written antitrust training presented to the Board, management and lower-level employees, customized for the degree of antitrust risk presented.  For example, guidance and training is particularly important for “those with approval authority for pricing changes and participation in industry meetings, certification responsibility for bidding activity, or human resources/hiring authority.” [1] 
  • A new emphasis on the use and preservation of so-called “ephemeral” messages that are designed for automatic deletion, either immediately or after a period of time, and on non-company forms of communication. The guidance recommends a robust policy that provides clear direction for “the extent to which those communications are permitted and when employees must preserve those communications,” with an eye to what preservation settings are available and what approach to those settings are permitted. [2]
  • A new emphasis on monitoring the use of artificial intelligence and revenue management software to prevent antitrust violations, a focus of recent DOJ and state antitrust enforcement efforts. [3]
  • An emphasis on fostering a “culture of compliance” not only at the top, but with an eye to “set[ting] the tone from the middle,” with managers at all levels demonstrating the importance of compliance. [4]
  • An emphasis on signals that the company emphasizes compliance as a top priority, through indicators such as the presence of a senior compliance officer and adequate allocated resources to compliance efforts. [5]
  • A new application of the guidance principles not only to criminal charging decisions and sentencing recommendations, but to civil investigations as well—allowing companies to “steer clear of civil antitrust violations and, if violations do occur, to promptly self-disclose and remedy them and cooperate with a civil antitrust investigation,” and empowering the DOJ to “consider many of the same factors…as criminal prosecutors do.” [6]

As with previous iterations of the guidance, companies should structure their compliance programs to adhere to the policies and priorities outlined within it, as well as consult knowledgeable antitrust counsel for assistance in building and maintaining an effective program.

[1] United States Dep’t of Justice Antitrust Div., Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations 5 (Nov. 2024), available here.

[2] Id. at 6.

[3] Id. at 9-10.

[4] Id. at 7.

[5] Id. at 7-8.

[6] Id. at 2-3.