Part 1 described the trends: more individuals charged, public money at the center, proactive investigations, and two competing races to the Division’s door. This post turns those trends into reminders for compliance programs. None is new; what has changed is how costly it is to forget them.

Reminder 1: The Rule Has Not Changed

Price fixing, bid rigging, market allocation, and output restriction are per se illegal. Agreements to restrict output count: the recently indicted container-manufacturer case alleges that competitors limited production and monitored one another’s output. Wage fixing and no-poach agreements are treated the same way. The Sherman Act is a general intent crime: the government must prove that the conduct was intentional, not that the defendant knew it was illegal, and advice of counsel is not a defense (a point Daniel Glad made in May). “Legal signed off” is not a safe harbor if the underlying conduct was an agreement among competitors.

Reminder 2: Know Your Exposure Map

A company is at higher risk if it sells to governments or government-funded projects, bids in local or regional markets with a small group of competitors, operates in agriculture, healthcare, or labor markets, participates in trade associations, or uses pricing software that ingests competitor data. Map those touchpoints. Then assign owners and controls to each.

Reminder 3: Train the People Who Actually Face Competitors

Training should reach the people with actual contact: estimators, sales representatives, pricing analysts, procurement staff, account managers, and engineers who configure pricing and bidding tools. Use realistic examples:

• Rotating winners and “courtesy bids.”
• Agreeing not to bid or to submit a deliberately losing bid.
• Sharing current or future prices, capacity, or bid strategy with a competitor, including at an association meeting or a social event.
• Subcontracting arrangements among bidders that serve to allocate work.
• Unusual contact with a public buyer’s staff who have access to competing bids.

Train public-sector sellers on the fraud and false-statement counts that frequently accompany bid rigging.

Reminder 4: Watch the Data, Not Just the People

The Division uses data analytics on procurement and now has hundreds of terabytes of material to review. Companies can use the same tools to find problems first:

• Review win/loss patterns, bid spreads, identical pricing or errors across bidders, and unusual withdrawal patterns.
• Monitor communications with competitors, and flag meetings or messages outside approved channels.
• Audit trade association participation, and keep agendas and minutes.
• Test pricing and bidding tools for what data they ingest and what they return.

Reminder 5: Pricing and Bidding Software Is a Compliance Object

Glad’s message in both speeches is that software cannot launder collusion. Reviews of AI and algorithmic tools should ask the antitrust question: what competitor nonpublic data goes in, whether users know it is pooled, where outputs go, and how often recommendations are followed. The Division’s updated guidance on evaluating compliance programs asks specifically about AI and algorithmic risk assessments, whether antitrust risk is considered when new tools are deployed, and whether compliance staff are involved. An AI governance program that covers privacy and cybersecurity but not coordination with competitors is incomplete. “The model did it” is not an answer.

Reminder 6: Create a Fast Lane for Concerns

With a whistleblower program that can pay $1 million or more, and leniency that goes only to the first applicant, speed matters.

• Maintain a reporting channel that employees trust, and a firm non-retaliation rule.
• Define an escalation path for any report of competitor contact, with a clock for outside counsel involvement.
• Decide in advance who has authority to authorize a leniency marker, and how quickly. Glad’s guidance is that a company can seek a marker at the first sign of potential wrongdoing, before it knows for certain that a violation occurred.
• Understand the interplay with other regimes. The Division’s leniency policy covers Sherman Act violations, while the Department’s new Corporate Enforcement Policy for other crimes excludes antitrust; a scheme involving both bid rigging and fraud calls for coordinated analysis.

Reminder 7: Preserve and Investigate Properly

When a concern arises: issue a legal hold covering emails, chats, ephemeral messaging, and pricing-tool logs; secure personal devices where business communications may live; run the investigation under privilege through counsel; and consider separate counsel for individuals whose interests may diverge from the company’s. The first plea in an investigation is often the start, not the end, so assume that others are cooperating.

Reminder 8: Individuals Need Separate Thought

Because prison sentences are the main deterrent, employees deserve clear explanations of what is prohibited and what to do if a competitor raises prices or bids with them. Consider how indemnification, advancement, and insurance policies work for an employee facing a criminal antitrust charge, and make sure employees understand when they may need their own lawyer.

Reminder 9: Public Contractors Have Extra Obligations

Contractors should assume that antitrust, False Claims Act, fraud, and false-statement theories may be pursued together. Check bid certifications of independent price determination, maintain records of how bids were prepared, and train staff on the consequences of false statements to a government buyer. Grant and program funds at the state and local level are within the Procurement Collusion Strike Force’s mandate.

Reminder 10: The Board and the Compliance Evaluation

The Division’s published evaluation of compliance programs asks whether a program works in practice: whether it is well designed, adequately resourced and empowered, and tested. Boards should receive periodic reports on exposure mapping, training completion, audits, hotline reports, and government contacts. Document these reviews as they happen. As Glad put it in May, compliance cannot be an exhibit prepared for prosecutors after the fact. It must function before the misconduct occurs.

A Short Annual Checklist

1. Refresh the exposure map and name an owner for each touchpoint.
2. Retrain high-risk roles with current examples, and test comprehension.
3. Audit bids, pricing, and trade association participation using data.
4. Review pricing and bidding tools for competitor data use.
5. Test the hotline and the escalation path; rehearse a leniency decision.
6. Update legal hold and investigation protocols for modern messaging.
7. Brief the board and document its review.

The Bottom Line

The criminal docket may be smaller than in past decades, but its characteristics make it more dangerous for the individual employee: personal prison exposure, whistleblower incentives, proactive techniques, and a credible record of getting convictions. A company that treats antitrust compliance as a calendar item will find out when someone else gets to the Division first.