Incorporating Data Analytics into a Company’s Antitrust Compliance Review, Monitoring, and Audit Program

In recent years, there has been increasing regulatory emphasis on the importance of antitrust compliance. The Antitrust Division of the United States Department of Justice (the “Division”) and other enforcement entities outside of the U.S. have demonstrated the importance of antitrust compliance through issuing guidance for effective compliance programs. For example, in July 2019, the Division announced that, for the first time, it will consider compliance at the charging and sentencing stages in criminal antitrust investigations, with the intent to incentivize companies to implement robust and effective antitrust compliance programs. In conjunction with this announcement, the Division published guidance describing its evaluation of corporate compliance programs which emphasized the use of data in the development, review, monitoring and auditing of a company’s antitrust compliance program.

Since the guidance was issued in the Division has incorporated antitrust compliance programs into the resolution of investigations. In some recent cases, the Division announced that it had reached Deferred Prosecution Agreements (DPAs) with investigated companies to resolve charges of antitrust violations, many of which have been made public. In addition to admitting wrongdoing and paying penalties, the DPAs require that these companies develop or enhance their antitrust compliance programs.

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