The Department of Justice Antitrust Division’s is playing catch up to the Criminal Division on compliance leadership.  DOJ’s Criminal Division has issued four separate revisions to its Evaluation of Corporate Compliance Programs.  This is the Antitrust Division’s first revision to its Evaluation of Corporate Compliance Programs. 

The Antitrust Division’s revisions mirror many of the Criminal Division’s recent revisions with a particular focus on emerging technologies, artificial intelligence and data analytics.  Here are some of the highlights:

Preservation of Electronic Communications: In recognition of the importance of electronic communications and the increasing use of ephemeral messaging applications, the Antitrust Division outlines its expectations concerning corporate policies governing the use of personal devices necessary controls to preserve business communications.  To this end, companies have to identify electronic communications channels used by employees, implement mechanisms to manage and preserve information on each channel, and adopt clear guidelines regarding the use of ephemeral messaging or noncompany methods of communication. 

AI and Pricing: To protect against price-fixing, the Antitrust Division has focused on the use of artificial intelligence in relation to pricing tools and revenue management software.  Companies have to update compliance policies for newly-developed technology, update their risk assessments to address use of technology, particularly new technologies such as artificial intelligence and revenue management software. Based on this risk assessment, companies have to employ risk mitigation strategies. The Antitrust Division expects that compliance personnel understand the use of AI and other technology tools and are involved in the deployment of AI and other technologies.

Corporate Culture and Tone in the Middle: The Antitrust Division recognizes the importance of a company’s culture of compliance.  As part of this focus, the Antitrust Division explicitly identifies the importance of a company’s middle management to preserving and promoting the company’s culture of compliance. 

Whistleblowers and Retaliation: The Antitrust Division identifies the importance of protecting whistleblowers from retaliation and avoiding any corporate policies that obstruct or prevent whistleblowers from raising concerns or reporting these concerns to the government.  Specifically, the Antitrust Division emphasizes policies to encourage reporting of antitrust violations and preventing retaliation. The Antitrust Division specifically calls out the use of non-disclosure agreements (NDAs) and other restrictions on current and former employee that may prevent or discourage reporting antitrust violations. 

Civil Enforcement Benefits:  For the first time, the Antitrust Division explained that a company’s decision to voluntarily disclose, cooperate with the investigation and remediate the violations, can result in benefits in a civil enforcement context.  Specifically, a company could earn benefits in government civil actions, a reduction in monetary penalties, and relaxation of court-mandated further compliance and reporting requirements or retention of and supervision by external monitors.