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Davis Polk Discusses DOJ Antitrust Updates on Corporate Compliance

The Antitrust Division of the Department of Justice has updated its 2019 Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations. The changes bring the guidance in line with recent changes to the DOJ Criminal Division’s compliance guidance, but also offer new guidance for civil antitrust cases.

On November 12, 2024, the Antitrust Division of the Department of Justice (DOJ) released an update to its 2019 Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (the Guidance).  The Guidance provides insight into how prosecutors will assess antitrust compliance programs at the charging and sentencing stage.  The Guidance is intended to be consistent with the DOJ Criminal Division’s Evaluation of Corporate Compliance Programs (ECCP), and reflects similar updates made to the ECCP in September 2024.  For the first time, the Guidance notes that companies should expect DOJ to consider many of the same factors when evaluating a company’s compliance program in civil antitrust investigations.

Notable areas of focus

Culture of compliance. The Guidance emphasizes the importance of companies fostering internal dynamics that promote antitrust compliance and incentivize reporting and self-policing of antitrust concerns.

Non-disclosure agreements. DOJ has added questions that flag the potential negative effects of non-disclosure agreements (NDAs) on antitrust compliance.

Technological risks.  As companies implement new technology, the Guidance asks how companies are assessing the antitrust risks presented by these tools.

Periodic refinement and improvement.  The Antitrust Division re-emphasizes that internal review and assessment of antitrust compliance is a critical part of an effective program.

Connection to civil enforcement.  While the Guidance relates to criminal antitrust violations, DOJ notes that a well-designed antitrust compliance program will also minimize the risk of civil violations.

Key takeaways

Linked here is a redline of the new Guidance against the prior version from 2019.

This post comes to us from Davis, Polk & Wardwell LLP. It is based on the firm’s memorandum, “DOJ Antitrust Division updates its corporate compliance guidance,” dated December 19, 2024, and available here. 

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