Checklist: Antitrust compliance (USA)

Introduction

This checklist sets out steps to assist in-house counsel who are responsible for ensuring their organization’s compliance with state and federal antitrust laws.

This checklist provides an overview of the key considerations for ensuring compliance, including the following:

1. Assess your organization’s risk of antitrust violations
2. Design a compliance program
3. Implement a reporting mechanism for antitrust violations
4. Implement a mechanism to remedy antitrust violations

The checklist is presented as a list of requirements that you can check off as they are addressed. At the end of the document, there are explanatory notes corresponding to each requirement in the checklist.

This checklist can be used in conjunction with the following How-to Guides: How to draft an antitrust–unfair trade practices compliance program and How to identify and manage antitrust and unfair trade practice risk and Checklists: Conducting an antitrust audit and Meeting with a competitor.

Step 1 – Assess your organization’s risk of antitrust violations

Step 2 – Design a compliance program

Step 3 – Implement a reporting mechanism for antitrust violations

Step 4 – Implement a mechanism to remedy antitrust violations

Explanatory notes

Legal framework

In the United States, state and federal antitrust laws protect consumers by promoting and protecting competition. The core activities prohibited under U.S. antitrust laws are:

• monopolies
• monopolistic market positions, in which one company exerts control over the market without necessarily being a monopoly
• price-fixing agreements
• group boycotts
• 'tying' arrangements and
• market allocation agreements.

At the federal level, antitrust laws are enforced by the Department of Justice (DOJ) and the Federal Trade Commission (FTC) Bureau of Competition through civil and administrative actions. Some violations, such as bid-rigging, price fixing, and market division agreements, are considered so anticompetitive that they have been deemed ‘per se’ violations. Therefore, in order to prove a violation, the federal agencies merely need to prove that the action occurred. They do not need to show that there was intent on the part of the company to restrict competition.

Sherman Act

The Sherman Act, 15 USC section 1, et seq., is the primary federal antitrust law. It prohibits unreasonable restraints of trade and monopolization. The Sherman Act allows for both civil and criminal penalties, including criminal fines of up to $100 million for corporations, and criminal fines of up to $1 million and up to 10 years’ imprisonment for individuals. Fines may be increased to twice the amount the companies gained from the illegal acts or twice the amount lost by the victims, if either amount is over $100 million.

Clayton Act

The Clayton Act, 15 USC section 12, et seq., is a civil statute that provides additional specific prohibitions on anticompetitive conduct. The Clayton Act prohibits anticompetitive mergers, predatory and discriminatory pricing, and other forms of unethical corporate behavior. The Clayton Act also notably provides a private right of action for violations of federal antitrust laws including the Clayton Act and the Sherman Act. Litigants can pursue treble damages under such causes of action.

Federal Trade Commission Act

The Federal Trade Commission Act (FTC Act), 15 USC section 41, et seq., is a civil statute that prohibits ‘unfair methods of competition’ and ‘unfair or deceptive acts or practices’. The United States Supreme Court has held that a violation of the Sherman Act is automatically a violation of the FTC Act. See FTC v. Motion Picture Advertising Service Company, Inc., 344 U.S. 392, 394-95 (1953). Only the FTC is permitted, however, to seek penalties under the FTC Act. As of 2025, it can seek up to $53,088 per violation as well as injunctive relief.

State antitrust laws

Many states also have antitrust protections which generally parallel those at the federal level. Often, concurrent state and federal antitrust actions are possible, resulting in high resource and financial expenditures by companies, even if they are ultimately found not liable or not guilty. The National Association of Attorneys General provides information on the coordination of antitrust efforts between federal and state programs. The Press Releases page gives an indication of how active the State Attorneys General have been in their enforcement actions. See, eg, United States v. Google LLC, No. 20-cv-3010 (APM), 2025 BL 33005 (D.D.C. Feb. 02, 2025) for an example of the coordination between federal authorities and virtually every state in an antitrust action.

The importance of antitrust compliance

An effective antitrust compliance program serves at least two important functions:

• Risk Identification and Avoidance: It helps identify potential or actual antitrust violations, so that the company can respond promptly and prevent or remedy any issues. Implementing and maintaining an effective compliance program is time and resource intensive, but this pales in comparison to the potentially business-ending costs and consequences of an adverse civil or criminal antitrust action.
• Mitigation of Potential Penalties: Antitrust compliance programs are considered by the DOJ when it makes decisions regarding prosecution and sentencing recommendations in Sherman Act criminal cases.

Key considerations

When developing an antitrust compliance program, key elements include:

• a risk assessment
• training tailored to employees
• ongoing testing and review
• incentives for compliance
• violation reporting systems and
• remediation processes

The risk assessment will help tailor the compliance program to the specific needs of the business.

The DOJ Guidance on Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations is instructive in designing a compliance program. While the guidance is technically formulated to focus on how antitrust compliance programs are evaluated in the context of criminal antitrust charges, it provides a great framework for developing a program that will help avoid or minimize both civil and criminal antitrust violations. The DOJ’s more recent Guidance on Evaluation of Corporate Compliance Programs does not focus specifically focused on antitrust, but still provides useful information.

Step 1 – Assess your organization’s risk of antitrust violations

1.1 Consider the characteristics of the industry or market in which your organization operates

It is important to consider all aspects of the market in which your organization operates as part of your antitrust risk assessment. These include the following elements.

1.1.1 Market concentration

Market concentration refers to the extent to which market shares are concentrated between a small number of firms. It is considered an indicator of the level of competition in an industry. A high level of market concentration is generally taken as an indication that the market is not competitive, because the market is dominated by only a few participants. The more concentrated the market, the higher the risk of an antitrust violation or of the imposition of a regulatory bar if two of the larger companies attempt a merger or acquisition. See Mr. Dee's Inc. v Inmar, Inc., No. 1:19CV141, 2022 Us Dist Lexis 148654, 2022 WL 3576962 (M.D.N.C. Aug. 19, 2022) (‘Expert testimony was required to demonstrate an alleged conspiracy between competing coupon processors to allocate markets and customers and fix shipping fees in violation of the Sherman Act. Here, the plaintiff was attempting to show the violation despite ‘the…industry, as relevant here, is fairly described as an oligopoly’ prior to actions by the defendant). 

1.1.2 Market share

Overall, industry market share, as well as market share for each product or service line, impacts the risk of antitrust action. In general, the larger a company’s market share, the higher the risk that it may – even inadvertently – violate antitrust laws. A single company that dominates a market could easily become a monopoly.

1.1.3 Geographic scope

A geographic market is the area in which customers would likely purchase a good or service. Geographic markets are determined on a case-by-case basis. A geographic market for a good or service may be as small as a town or as large as the entire world. In general, the smaller the market, the higher the likelihood of finding antitrust violations. There is less incentive for a competitor to enter a small market, and the companies already in that market may react to new competition by engaging in conduct prohibited by the antitrust laws. See Tampa Electric Co. v. Nashville Coal Co, 365 US 320, 333 (1961) (‘Even though a single contract between single traders may fall within the initial broad proscription of the section, it must also suffer the qualifying disability, tendency to work a substantial – not remote – lessening of competition in the relevant competitive market’).

1.1.4 Supply chain

Contracts with manufacturers and others in the supply chain should be evaluated for risks of vertical antitrust violations. Manufacturers typically have a fair amount of leeway in structuring the terms of their agreements, including terms that require exclusive dealing or impose ceilings. However, agreements that would make it difficult or impossible for new participants to enter the market may run afoul of antitrust laws. Most vertical-imposed price policies, including resale price maintenance, are reviewed under a rule of reason standard that balances procompetitive and anticompetitive effects, and are not considered per se violations. See State Oil Co. v. Khan, 522 U.S. 3 (1997); Leegin Creative Leather Products v. PSKS, 551 US 877 (2007). The rule of reason doctrine provides that practices that might be considered violations of the Sherman Act are not unlawful if they do not unreasonably restrain trade. See Chicago Board of Trade v. United States, 246 US 231, 238 (1918) (Brandeis, J.) (‘The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition’).

1.1.5 Joint ventures

If your organization is involved in joint ventures or if these are prevalent in your organization’s industry, additional antitrust risk is raised and the possibility of official scrutiny is increased. Joint ventures are very common and are often permissible; however, they do tend to attract scrutiny because of the strong possibility that a joint venture could operate as an agreement to restrain trade. Each joint venture should be carefully reviewed –ideally before it is entered into and on an ongoing basis – to assess its risk and ensure it is neutral or procompetitive in effect. For example, a joint venture between two companies may benefit consumers by allowing a product to be brought to market faster than could be done by one business acting alone, but it also may limit the ability of other companies to compete in the marketplace, resulting in higher prices for consumers.  

1.2 Consider who your competitors are and their activities

1.2.1 Level of competition

The level of competition in a market is highly relevant to antitrust analysis. The fewer competitors a business has, the higher the risk of antitrust violations. Market concentration is measured by the FTC according to the Herfindahl–Hirschman Index. While that Index provides a quantitative method for measuring one facet of competition, it does not take into account other, less tangible factors, such as the complexity of a market, or the ability of market participants to develop strategies for competitive or anti-competitive behavior. At a practical level, it is easier to engage in anticompetitive agreements when only a few market competitors need to reach agreement. The more competitors there are, the more difficult it is for competitors and market participants to reach a consensus that would have any real impact on the market.

1.2.2 Similarity of products/services

Analysis of the similarity between your organization’s product and service lines and those of competitors is important in a risk assessment. The more homogenous the offerings, the higher the risk. Since price is often the only differentiating factor for homogenous goods or services, there is a higher risk of antitrust issues, as any agreements between competitors related to pricing will likely have an anticompetitive impact and be regarded as per se violations.

1.3 Consider the likelihood of your organization expanding into other markets/industries

Expanding into new markets and industries increases the risk of an antitrust violation arising, either from the expansion itself by a larger company that can readily dominate a market, or from agreements that may be entered into as part of the expansion. However, not all expansions lead to antitrust violations. The state of the potential new market or industry should also be analyzed, as well as the anticipated impact of your company venturing into it. For example, antitrust risk is low if you are likely to enter into a market with robust competition where you anticipate holding a market share of 5%.

1.4 Consider the regulatory landscape

The regulatory landscape of the industry is an important part of risk analysis. Among other issues, you should consider:

• the innate level of antitrust activity in the industry, as shown by the level of enforcement actions or private lawsuits;
• how heavily regulated the industry is, as a heavily regulated industry will be under close scrutiny for all types of legal violations;
• current antitrust orders and decrees in the industry;
• recent newsworthy issues in the industry that are likely to bring regulatory oversight; and
• trends in state, federal, and international antitrust investigations and prosecutions

Significant information can be gleaned from the DOJ website that lists all antitrust case filings, with the potential to sort by: 

• case open date;
• incident date;
• case type;
• component;
• violation topic;
• industry code; and
• federal court

The complaint associated with each filing is also available, so that a search by any of the above listed characteristics provides an indication of the kinds of activities the DOJ is actively pursuing.

1.5 Consider the likelihood of your organization engaging in mergers/acquisitions

Mergers and acquisitions by their nature raise antitrust risks and often attract the scrutiny of regulatory agencies. When evaluating risk, consider the likelihood of your organization entering into a future merger or acquisition, and what the potential impact of any planned merger or acquisition may be.

1.5.1 Horizontal merger

Horizontal mergers are mergers between companies at the same level of the supply chain – that is, competitors. These carry some of the highest risks of antitrust violations due to the risk of market monopolization to the detriment of consumers. The DOJ’s and FTC’s Merger Guidelines, issued in December 2023, are useful in assessing risk and avoiding liability if such a merger does take place. (They also provide useful information regarding vertical and non-horizontal (conglomerate) mergers.)

1.5.2 Hart-Scott-Rodino notification

The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR), 15 USC section 18a, is a provision within the Clayton Act that requires that certain planned mergers be reported to the FTC and DOJ prior to taking place. Notification is dependent upon the size of the transaction and the size of the parties involved. The FTC published amendments to the rules implementing the HSR Act that went into effect on February 10, 2025. The new rules included a significant expansion of the mandatory disclosure requirements. The rules also put into place new rules related to filings.  The changes to the rules may call for a significant amount of additional time to prepare filings. Upon notification, covered proposed transactions are reviewed by the FTC and DOJ and may be challenged by the agencies. Failure to comply with HSR requirements can result in fines in excess of $50,000 per day. 

1.6 Consider whether your organization participates in trade or business associations

It is common and permissible for companies to be involved in industry trade associations. However, trade association membership carries some antitrust risk, since by their nature trade associations lead to interactions between competitors. Each membership should be evaluated when assessing antitrust risk.

When assessing whether your organization’s antitrust risk is too high to participate in a particular trade association, consider the following factors:

• the type and purpose of the association (eg, the Motion Picture Association represents the film industry in the US)
• the participants in the association (eg, the American Cheese Society is a cheese trade group. Cheesemakers, retailers, distributors, importers/exporters, dairy farmers, academics, and enthusiasts all attend its annual conference)
• the association’s activities (eg, the Recording Industry Association of America provides awards for music)
• whether the association has an antitrust compliance policy
• whether the association has been involved in any previous legal embattlements regarding antitrust liability
• whether any members have been involved in any previous legal embattlements or investigations regarding antitrust liability and
• whether your company has guidelines for employees to follow when participating in trade association events.

The FTC advises that '[i]n general, information reporting cost or data other than price, and historical data rather than current or future data, is less likely to raise antitrust concerns. Dissemination of aggregated data managed by an independent third party also raises fewer concerns.'

For further information, see the Checklists: Meeting with a competitor and Trade association participation.

Step 2 – Design a compliance program

A compliance program helps prevent violations of laws, improves operations, reduces liability for misconduct, and builds trust in all stakeholders.

For more detailed information, see the How-to guide: How to draft an antitrust–unfair trade practices compliance program.

2.1 Set out the basic elements of the program

All antitrust compliance programs should include:

• conducting a preliminary assessment, or audit, of the current status of antitrust compliance
• implementing an antitrust program that addresses deficiencies identified in the audit and prevents future deficiencies
• the date of implementation and a log reflecting changes made
• timelines for regularly scheduled updates
• responsibility for drafting and approving revisions to the program
• accountability for the program
• monitoring the program’s effectiveness
• gatekeeping, or external communications regarding the program and
• a mechanism for providing employees with the program, and for training them in the operation of the program.

Accountability, dissemination, and training are the three essential components of an effective antitrust compliance program. The program should be implemented as soon as practicable after it is developed, as the DOJ will consider whether the program was in effect before any antitrust investigation was commenced when evaluating it. In addition, continuous updates should be mandated, to ensure the information does not become stale and outdated. 

You must also determine how the program will be shared – for example, on a shared drive or in hard copy. It is important that all relevant personnel have easy access to the program and know how to use that access. Distributing hard copies to all those concerned, with a master copy stored in a shared location, will help ensure that the program is disseminated as necessary. It is advisable to keep the program separate from other internal documents as burying the compliance program among other corporate policies and procedures can make it appear to both a regulatory agency and your employees as an unimportant afterthought.

Prepare a code of conduct and ethics. If your organization is a publicly-traded company, the code should comply with the Sarbanes-Oxley Act of 2002 and should be drafted in accordance with the Act’s emphasis on honesty and transparency.

Maintain and distribute an employee handbook, which should emphasize the need for compliance and for reporting of violations. An effective method for distributing the handbook is to incorporate it into required employee training sessions. An effective method for distributing the handbook is to incorporate it into the onboarding process for new employees or as required employee training sessions for the existing employee base that require the training. The handbook may be limited to setting out the responsibilities of employees at all levels of the organization and need not set out all of the details of the program. Implement financial and accounting controls, including compliance alerts. Establish reporting mechanisms, with express protections in place for whistleblowers, methods of anonymous reporting such as a dedicated phone line and email address, and a structured incentive policy encouraging those with antitrust concerns to report the potentially unlawful conduct.

As noted, the program should be reviewed regularly and updated as needed.

2.2 Identify who will audit and monitor the program

The chief compliance officer should ensure program effectiveness. They should implement and ensure compliance with the program by continuously monitoring operations to verify that internal controls, policies, and procedures are being followed. In a small organization, an employee may wear multiple hats, such as filling in for operations or bookkeeping when the need arises. It is advisable, however, that compliance staff remain delegated only to ensuring regulatory compliance at all times, so as to not risk the creation of any appeared or inherent conflicts of interest. See Step 2.5 for further details.

2.3 Identify who will receive training on the program

The employees who will be trained under the program must be determined based on your organization’s risk assessment (see Step 1). In some organizations, it will be appropriate for all employees to receive training; others may limit this to specific groups of employees. In addition, not every employee will need to receive the same level of training. In any case, you should be able to articulate how you have determined which employees to train. DOJ guidance on antitrust compliance programs encourages organizations to consider the following questions: 

• Does training include senior management/supervisors and the board of directors? In nearly all cases, it certainly should.
• What is the lowest level of employee that must receive antitrust compliance training?
• Are contractors or agents included in the training?

The more recently issued DOJ guidance, which does not focus on antitrust, notes that companies can help ensure that policies and procedures are integrated into the organization through periodic training and certification ‘for all directors, officers, relevant employees, and, where appropriate, agents and business partners’.

2.4 Provide training on the program

2.4.1 Design of the training program

Your antitrust compliance training program should reflect the results of your organization’s antitrust risk analysis. In designing the training program, at a minimum, bear in mind the following suggestions:

• Consider whether the training can be uniform across the organization or should be tailored for different groups of employees (e.g., should more advanced and detailed training be provided to employees who have price-setting authority or are trade association representatives?)
• Focus on high antitrust risk areas and employees, in particular those potential areas of deficiency identified in the preliminary assessment
• Provide tailored training to high-risk employees such as:
  • directors
  • those with fiduciary duties
  • those who respond to employee concerns
  • the hiring manager and
  • human resources staff
• Use plain language wherever possible. Training should be easily understood by those without a legal or antitrust background. The DOJ encourages the use of ‘clear and simple rules,’ including ‘dos and don’ts’. Examples relevant to each department being trained are often useful to help all employees understand how antitrust laws may affect their daily operations
• Include a mechanism for providing alerts of significant legal changes to employees, remembering to consider what methods may be easily overlooked by busy staff members. It is often best practice to provide alerts in at least two formats, such as by e-mail and also through in-person training, in order to ensure all employees receive notification
• Consider the best mix of training mechanisms for conveying the information (eg, print materials, video training, interactive quizzes). The DOJ will look into a company’s rationale for choosing a particular type of training, whether participants have an opportunity to ask questions, and whether they are tested on what they have learned.
• Include training on how to report possible antitrust violations
• Advise employees on how, when, and from whom to seek additional advice or ask questions. Make sure an open line of communication is maintained
• Train employees on the consequences of misconduct – both direct antitrust violations and failure to report
• Inform employees of the incentives to report misconduct, which may involve monetary rewards or non-monetary incentives such as additional unpaid time off. Tailor incentives to your individual organization.

2.4.2 Periodically review content

Conduct a periodic review of the training program’s content. Business operations and governing laws and regulations are both subject to frequent change, so the training program should be updated accordingly. Consider legal changes such as trends in enforcement policies, case law changes and regulatory changes.  For example, in December 2023 the FTC and DOJ issued renewed guidance on mergers, indicating a potential enforcement focus going forward. Also consider whether any changes in your organization have altered risks in a manner that warrants updating the training program.

2.4.3 Review the effectiveness of the training program

Review the effectiveness of the training program regularly, as well as any time a red flag –such as an investigation or a concerning employee report – is raised or a major company change, such as a merger, acquisition, or new product launch, is on the horizon.

2.4.4 Include onboard training

Ensure that your training program contains tailored training for new employees and employees who are switching roles or being promoted.

2.5 Assign responsibility for the operation of the program

Responsibility for the development and maintenance of the antitrust compliance program typically involves multiple levels of an organization. At the highest level, the board or other governing authority should have general oversight and input into the program. Upper-level employees should ensure that a compliance program exists and have general oversight of, and authority over, the program. Specific individuals should be tasked with day-to-day operational responsibility. Generally, the chief compliance officer ensures compliance and secures buy-in from senior management and key employees.

2.5.1 Outside expert review

It is generally advisable to hire outside antitrust counsel or an expert antitrust advisor to assist in the development and implementation of your antitrust compliance program.

See the How-to guide: How to draft an antitrust–unfair trade practices compliance program.

2.6 Monitor, review and continuously improve the program

Monitor and review the compliance program to ensure it is being followed by employees. Consider a combination of routine, scheduled monitoring and review, and unannounced audits. When developing a review and monitoring system, the DOJ recommends considering the following:

• What monitoring or auditing mechanisms does the company have in place to detect antitrust violations?
• Are there routine or unannounced audits?
• Does the company use any type of screen, communications monitoring tool, or statistical testing designed to identify potential antitrust violations?

See US Dept of Justice, Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations, p 13 (November 2024).

In its more recent guidance, which does not focus on antitrust matters, the DOJ notes the importance of efforts to ‘promote improvement and sustainability’ of compliance programs. It explicitly encourages prosecutors to consider whether a company revises its program in light of lessons learned.

2.7 Establish incentives for participating in the program and consider disciplinary consequences for not participating

Incentives and discipline should both be incorporated into a compliance program, as each may help promote compliance with the program in different ways. Examples of incentives include ‘dress-down’ passes, work gifts (eg, mugs, water bottles), desk reminders, structured bonuses, and buddy systems. Disciplinary actions should consider the intent behind the conduct, and be administered even-handedly, regardless of the position an employee occupies in the organization. Disciplinary measures could include verbal or written warnings, denial or reduction of a bonus, ineligibility for promotion or, in egregious cases, termination.

The DOJ’s most recent, general guidance on compliance programs places more emphasis than previous guidance on both incentives for compliance and disincentives for noncompliance. It specifically mentions the possibility of reducing or even recouping previously awarded compensation in case of wrongdoing; as well as making compliance ‘a means of career advancement’, including by way of promotions and bonuses for showing ethical leadership.

Step 3 – Implement a reporting mechanism for antitrust violations

In its guidance document Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations, the DOJ advises that ‘[a]n effective [antitrust] compliance program includes reporting mechanisms that employees can use to report potential antitrust violations anonymously or confidentially and without fear of retaliation’. 

3.1 Consider how reports will be made

It is important to have a clear process that allows employees who suspect or know of antitrust violations to report them discreetly. Employees should be permitted to report either to their supervisor (if their supervisor’s conduct is not the issue) or to at least one alternative person. Employees might commonly report to a member of the legal department, a member of the compliance department or an employee helpline. It is important that employees are clearly and routinely advised of how to make antitrust violation reports.

3.2 Establish procedures for reports and responses

3.2.1 Mandatory reporting

In most cases, reporting of actual or suspected antitrust violations should be mandatory. As noted, employees should be given notice of reporting requirements and how to report. Supervisors who receive reports should be required to carry the report up the chain to the department or individual with responsibility for receiving and taking action on reports –typically, the legal or compliance department. To incentivize compliance with reporting requirements, there should be disciplinary consequences for failure to report (see section 2.7).

3.2.2 Investigation

Policies and procedures for prompt investigation of reported antitrust concerns should be implemented. It is typically most appropriate to have the auditing or legal department handle the investigation.  If the legal department conducts the investigation, employees who are interviewed or questioned should be given an ‘Upjohn warning,’ in which an employee is informed that counsel represents the organization and not the employee, that any attorney-client privilege attaching to statements made during the interview belongs solely to the organization, and that the company may waive the privilege and allow the disclosure of the contents of the interview to third parties, including governmental authorities. See Upjohn Co. v. United States, 449 US 383 (1981).

3.3 Ensure appropriate whistleblower protection is provided

To comply with the laws that grant protection to employees who report violations of the law (whistleblowers), the reporting program should:

• be well publicized within your organization
• include a mechanism for the anonymous reporting of potential antitrust violations
• include a strong policy of non-retaliation for reports of potential antitrust violations and
• include a mechanism for reporting actual or suspected retaliation for reporting of potential antitrust violations.

Step 4 – Implement a mechanism to remedy antitrust violations

4.1 Evaluate the measures in place to stop violations

4.1.1 Report to DOJ/state regulatory authorities

When a violation is found, you should proactively report this to the DOJ and relevant state regulatory authorities. The DOJ has a leniency program, which offers leniency to offending organizations when they self-report the violation and meet other criteria. If a decision is made to report, it is important to report promptly, as leniency is only available if the organization is the first to come forward (ie, if it reports before any other organizations involved do so). Even if an organization is not granted leniency and is found guilty of a criminal antitrust violation, self-reporting is considered as a possible mitigating factor under sentencing guidelines. Additionally, parallel leniency in prosecution and sentencing may be available under state law.

4.1.2 Behavioral remedies

When unlawful behavior is identified, immediately advise the offending employee or employees to cease and desist from the behavior. Discipline in accordance with policies and procedures, up to termination, should also be imposed on offending employees. Disciplinary measures deter future violations by the same or other employees, and are considered by the DOJ in evaluating the effectiveness of antitrust compliance programs. Employees who self-report their own violations should be subject to discipline; however, an employer may choose to mitigate any disciplinary action in consideration of the report.

4.2 Establish a process to identify the root cause of a violation

Once unlawful behavior has been identified, it is important to analyze its root cause to prevent future violations. This is also an important consideration when the DOJ evaluates a compliance program. 

4.2.1 Identify the unlawful conduct and surrounding circumstances

The first step in a root cause analysis is to identify in as much detail as possible the unlawful conduct and the surrounding circumstances. Do not limit the analysis to just the violation, but also examine the events that led up to the violation. Was the conduct intentional? Was it accidental? 

4.2.2 Identify events or issues that may have contributed to the conduct

A root cause analysis must go deeper than the superficial identification of the persons in the organization who committed the violation. For example, if a person made a decision that constituted a violation, it is not enough to identify them as the cause. Perhaps that person did not know or understand that they were committing a violation; or perhaps a compliance process was not followed. This could indicate a training issue or a cultural issue with lack of organization buy-in for following processes. Note that there may be more than one root cause.

4.2.3 Develop recommendations for addressing or preventing conduct

An effective root cause analysis does more than identify what went wrong; it also develops recommendations for preventing the recurrence of such conduct. Recommendations should be actionable and repeatable – for example, making changes in processes or introducing additional safeguards.

4.3 Establish a process to revise policies and/or structures to prevent future violations

4.3.1 Structural remedies

If the violation itself or its underlying cause was structural, such as a violative merger, it may be necessary to change the organizational structure or even divest parts of the organization in order to comply with antitrust laws.

4.3.2 Revised code of conduct/compliance policies

If the violation was caused by or can be remedied by changes in employee conduct, necessary revisions to the code of conduct and/or compliance training and policies should be made.

Additional resources

Related Lexology Pro content

How-to guides:

Understanding antitrust and unfair trade practices law and your organization’s compliance obligations
How to identify and manage antitrust and unfair trade practice risk
How to draft an antitrust-unfair trade practices compliance program
How to build a culture of antitrust law compliance

Checklists:

Meeting with a competitor
Trade association participation
Conducting an antitrust audit

Reliance on information posted:

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