Active until its final day in office, the Biden administration focused intently on antitrust compliance programs. Most recently, antitrust enforcers made significant policy changes to their approach to evaluating corporate compliance programs, the use of artificial intelligence (AI) and algorithmic tools, information sharing, competitor collaborations, and labor enforcement. The incoming Trump administration will bring in new antitrust leadership with new priorities, but companies should nonetheless organize their compliance programs and business activities with the recent updates in mind, at least until the Trump administration signals a change in approach. Below, we outline some of these key policy changes and how companies can prepare.

DOJ Updates Compliance Guidance

In July 2019, during the first Trump administration, the Antitrust Division of the US Department of Justice released a guidance document titled “Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations.” The document provided a road map regarding how the Antitrust Division considered and credited antitrust compliance programs when making criminal charging decisions. The guidance considered topics such as whether (1) the company’s antitrust compliance program addressed and prohibited criminal antitrust violations, (2) the compliance program facilitated prompt reporting of potential violations, and (3) the company’s senior management supported a culture of compliance.

This guidance remained the same until late in the Biden administration when, in November 2024, the Antitrust Division updated its guidance on evaluating corporate compliance programs (the “Compliance Guidance”).¹ The Compliance Guidance makes a few key changes that companies should keep in mind when developing or updating their own compliance programs.

• Criminal and Civil Matters. The Compliance Guidance now explicitly applies to both criminal and civil antitrust investigations.² It previously only applied to the evaluation of compliance programs in criminal charging decisions. The Compliance Guidance observes that a strong compliance program could also help companies avoid “court-mandated further compliance and reporting requirements or retention of and supervision by external monitors” relating to civil antitrust violations, which could ease the burden of settlements with the government.³ Enforcers can bring several different types of civil action, including actions seeking equitable relief, treble damages actions, and monetary penalties for violating the Hart-Scott-Rodino Act. The Compliance Guidance recognizes this and emphasizes that a strong compliance program is important to reduce risk of both civil and criminal exposure.⁴
• AI and Algorithmic Technologies. The Compliance Guidance focuses heavily on companies’ use of AI and technology. If a company leverages AI or other algorithmic software, the Compliance Guidance asks that the company assess how the tools could be used in an anticompetitive way and expects that employees will be trained on how to use the technology within the bounds of the antitrust laws.⁵ Companies should use technology and data to track and promote compliance, including through tools that help compliance professionals audit and monitor compliance.⁶
• Document Preservation. The Compliance Guidance emphasizes the importance of proper document preservation. For example, companies should develop policies governing the use of personal devices and communications platforms, especially ephemeral messaging platforms, to ensure that potentially relevant communications are preserved in the event the company expects or is under investigation.⁷ To avoid potential issues with regulators, in-house counsel should take steps to develop clear policies regarding the preservation of documents and data on personal devices and chat functions.
• Culture. The Compliance Guidance offers several concrete ways for companies to create an effective culture of compliance. Companies should train employees to detect and deter antitrust violations; should use compensation structures that reward compliance-related behavior and punish misconduct (e.g., through clawbacks of pay and financial incentives); and should ensure that the culture of compliance is promoted by all levels of management.⁸ Companies should empower compliance professionals with sufficient resources to create and implement effective compliance programs and should offer confidential reporting mechanisms that protect whistleblowers from retaliation and provide for independent and objective assessment of tips regarding potential violations.⁹ The Compliance Guidance is clear that having a compliance program is not enough; to be effective, it must be structured to ensure buy-in from employees.

The Antitrust Division’s message is clear: Take compliance seriously and create programs that will foster a companywide culture of compliance. This message is consistent with the first Trump administration’s messaging around the 2019 guidance, so a significant departure is unlikely in the new administration.

Information Sharing and Competitor Collaboration Guidance Withdrawn

Antitrust enforcers in the Biden administration sought to deter communications among competitors that could impede robust competition. They also withdrew long-standing guidance on information sharing and competitor collaborations, citing changes in technology and the economy.

In February 2023, the Antitrust Division withdrew three joint FTC and DOJ policy statements regarding information exchange that provided a general safety zone from enforcement for information sharing among companies (the “Information Sharing Guidelines”) under certain circumstances. As to surveys that aggregated competitively-sensitive information (e.g., pricing or salary information), the safety zones were applicable if (1) the survey was managed by a third party; (2) the information collected for the survey was more than three months old; (3) there were at least five providers reporting data for each statistic, and none of the participating providers’ data constituted more than 25 percent of that statistic on a weighted basis; and (4) the information was sufficiently aggregated.¹⁰

In withdrawing the Information Sharing Guidelines, Doha Mekki, then Principal Deputy Assistant Attorney General for the Antitrust Division, stated that the Antitrust Division no longer believed that using third-party intermediaries to aggregate data was necessarily sufficient to protect competition, because “exchanges facilitated by intermediaries can have the same anticompetitive effect as direct exchanges among competitors.”¹¹ Additionally, Mekki stated that the Antitrust Division’s concern was heightened “[w]here competitors adopt the same pricing algorithms,” which she said may “lead to tacit or express collusion.”¹² The DOJ and the FTC echoed these statements in filings made in various cases alleging algorithmic price-fixing.¹³

In December 2024, the Antitrust Division and the FTC also jointly withdrew their 2000 Guidelines for Collaboration Among Competitors (“Competitor Collaboration Guidelines”).¹⁴ The Competitor Collaboration Guidelines provided a framework for assessing whether joint ventures or other collaborations comply with antitrust law. The agencies stated that the Competitor Collaboration Guidelines “no longer provide reliable guidance to the public” given evolving jurisprudence and analytical methods, the withdrawal of certain policy statements that the guidelines rely on, and modern technologies such as AI and algorithmic pricing models.¹⁵

New Labor Guidance

On January 16, 2025, the Antitrust Division and the FTC issued new “Antitrust Guidelines for Business Activities Affecting Workers” (the “Labor Guidance”)¹⁶ replacing the 2016 Antitrust Guidance for Human Resources Professionals (the “2016 Guidance”).¹⁷ The Labor Guidance goes far beyond the agencies’ 2016 Guidance, which was geared toward HR professionals and focused primarily on no-poach and wage-fixing agreements, and which memorializes positions the Biden administration took on various labor-related issues. The Labor Guidance reaffirms that wage-fixing and no-poach agreements can lead to criminal charges,¹⁸ but it also addresses several other labor-related issues, including:

• Franchises and Independent Contractors. The Labor Guidance says that franchise agreements where the franchisor and franchisee agree not to compete for labor can violate the antitrust laws.¹⁹ This is consistent with the agencies’ position took in a statement of interest in a recent case challenging hiring restrictions in franchise agreements, claiming that such restrictions can be per se unlawful.²⁰ The Labor Guidance also explains that the antitrust laws apply to conduct that affects independent contractors, not just to employees.²¹ An agreement between two companies to fix compensation for independent contractors can still violate the antitrust laws.
• Noncompete Clauses. The Labor Guidance states that noncompete clauses and other restraints on worker mobility can violate the antitrust laws and other federal or state statutes.²² The Labor Guidance references many DOJ and FTC enforcement actions challenging noncompete clauses as well as the FTC’s 2024 rule banning noncompete agreements.²³ Though the FTC’s rule was set aside by a federal district court in Texas, the Labor Guidance says that “[r]egardless, the FTC retains the legal authority to address noncompetes through case-by-case enforcement actions under the FTC Act, as it has done in the past.”²⁴
• Labor-Related Information Exchange. The Labor Guidance warns that the exchanges of competitively sensitive information relating to compensation or conditions of employment may violate the antitrust laws. ²⁵ Specifically, information exchanges through a third party or algorithm can raise concerns, and enforcers could interpret such exchanges as evidence of a conspiracy.²⁶ This update reflects the agencies’ views expressed through a consent decree²⁷ obtained and statements of interest filed²⁸ in various civil litigations during the Biden administration.
• Other Potentially Illegal Practices. The Labor Guidance identifies several other practices that could violate antitrust or other laws, including nondisclosure agreements that are so broad to prevent accepting another job or reporting of a potential violation, provisions requiring repayment for training expenses, provisions requiring an employee to pay their employer damages when they depart, and false and misleading claims about a worker’s potential earnings.²⁹ The agencies claim that these practices can prevent workers from seeking or accepting new jobs, or can fail to compensate workers fairly, and they cite to various recent enforcement actions as support.³⁰

Looking Ahead

Incoming antitrust leadership has acknowledged the importance of clear guidance on many of these topics, while also criticizing the last-minute nature of many of the changes made during the Biden administration. Republican Commissioners Ferguson and Holyoak challenged the timing and substance of the withdrawal of the Competitor Collaboration guidelines, suggesting they may move quickly to issue new guidance.³¹ And while the 2016 Guidance had bipartisan support, Commissioners Ferguson and Holyoak also criticized the release of the updated Labor Guidance, saying that “the Biden-Harris FTC announcing its views on how to comply with the antitrust laws in the future is a senseless waste of Commission resources” because “[t]he Biden-Harris FTC has no future.”³²

Practically speaking, companies should integrate recommendations in the Compliance Guidance and the Labor Guidance into their compliance programs and business activities where possible. Many of the fundamental principles therein are unlikely to change. While we await new guidance on information exchange and competitor collaborations, businesses will need to rely on interpretations of underlying case law to make risk assessments. Companies should reevaluate existing and future information sharing policies and practices to ensure that the exchange of competitively sensitive information is minimized, and that data is sufficiently aggregated and anonymized. In particular, companies should evaluate programs that collect and distribute nonpublic industry data through third-party intermediaries or algorithms, as this type of benchmarking could face increased scrutiny. Companies should also scrutinize any current or contemplated collaborations with competitors to ensure they are reasonably tailored, provide procompetitive benefits, and do not facilitate anticompetitive conduct. Ultimately, information sharing and competitor collaborations should remain permissible if they are done for a legitimate purpose, provide procompetitive benefits, and minimize risk of anticompetitive behavior (e.g., price-fixing). But for now, risks around information sharing and competitor collaborations will remain high, and companies should plan accordingly.