Checklist · Antitrust

Antitrust Compliance: A Practical Checklist

15 U.S.C. § 1

Type
Checklist
Jurisdiction
National
Date
2024-07-02
Topic
Antitrust

Antitrust is the rare corporate compliance area where the failure mode is a felony. A single conversation at a trade association dinner can expose a company to a $100 million fine, expose the executive who had it to a decade in prison, and expose the enterprise to treble-damage class actions that dwarf the fine. This checklist turns the doctrine into an operational program: map every place your people touch competitors, hold the bright lines on price, output, customers, territories, and hiring, run information exchanges and benchmarking through safeguards, discipline your trade association and standard-setting participation, get vertical pricing and distribution right, manage monopolization risk if you have market power, and rehearse the dawn raid and the leniency decision before the agents arrive. It closes with the common mistakes, a consolidated one-glance checklist, and the primary authority behind each step.

Antitrust Compliance: A Practical Checklist

Antitrust > Competition Law | Published 2 July 2024 - Updated 19 November 2025 | UpLaw - uplaw.us

Most compliance failures cost money. Antitrust failures cost liberty. Section 1 of the Sherman Act is a felony, and the people who go to prison for it are almost never the general counsel — they are the sales executives who thought a dinner conversation was just being friendly.

Keywords: antitrust compliance, Sherman Act, price fixing, bid rigging, market allocation, no-poach, wage fixing, information exchange, trade association, resale price maintenance, MAP policy, exclusive dealing, monopolization, dawn raid, DOJ leniency, gun-jumping

How to use this checklist

This is an operational document. It assumes you already understand the doctrine — or that you will get it from Antitrust Law: A Comprehensive Guide to the Sherman, Clayton, and FTC Acts — and that what you need now is a program: who does what, when, and what to say no to.

Our running example is Kestrel Valve Works, a mid-market industrial valve manufacturer with roughly 18% share of a concentrated North American market, four principal competitors, a dealer distribution network, and an active trade association. Its VP of Sales, Dana Ruiz, is about to attend the association's annual dinner. Everything that follows is written for Kestrel, and for the thousands of companies like it.

What changes constantly — verify before you rely

Antitrust has a stable core and a moving edge. The core — Sherman Act §§ 1 and 2, the per se offenses, Socony-Vacuum, Copperweld, Leegin — has not moved in years and is safe to build a program on. The following, however, change on a schedule or with the political weather, and no number or list in this document (or in your memory) should be relied on without checking the current source:

  • HSR thresholds, filing-fee tiers, and gun-jumping penalty amounts. These are adjusted annually by the FTC, and the Notification and Report Form itself has been substantially expanded. Confirm the current figures with the FTC's Premerger Notification Office before you conclude a deal is (or is not) reportable. See Filing an HSR Notification: A Practical Checklist.
  • Tariff rates, export-control lists, and sanctions designations. If your competitor collaboration, JV, or distribution program touches cross-border trade, the applicable rates and restricted-party lists can change between the day you scope the deal and the day you sign. Check the current official lists every time; see Export Control and Sanctions Compliance: A Practical Checklist.
  • Agency policy documents and rules. Merger guidelines, leniency policy terms, and FTC rulemaking positions shift with administrations. And note the deference backdrop has changed: Chevron deference is no longer good law — Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), overruled it, and courts now decide questions of statutory meaning de novo, giving an agency's interpretation only the persuasive weight it earns (Skidmore-style respect). Practically, that means an agency's expansive reading of its own authority — including the FTC's authority to make substantive competition rules — is more vulnerable in court than it was, and you should not assume a guidance document or rule will survive challenge.
  • State antitrust law. State statutes are not miniature copies of the Sherman Act. They diverge on resale price maintenance, on indirect-purchaser standing, and on remedies. Nothing in this checklist states a nationwide rule of state law, and you should confirm the rule in each state where you sell.

Phase 1 — Map every touchpoint with competitors

  • [ ] Inventory every forum where employees encounter competitors: trade associations, standards bodies, benchmarking consortia, industry conferences, joint bidding teams, supplier councils, customer advisory boards, and buying groups.
  • [ ] Inventory every commercial relationship with a competitor: joint ventures, co-development, cross-licensing, tolling and supply agreements, distribution overlaps, and dual-distribution arrangements.
  • [ ] Identify every employee who talks to a competitor, sees competitor pricing data, or sets prices, output, discounts, bids, territories, or hiring policy. That is your high-risk population.
  • [ ] Identify every employee who has ever worked for a competitor, and confirm no confidential competitor pricing or strategy came with them.
  • [ ] Map the corporate family: which entities are genuinely under common ownership and control (and therefore incapable of conspiring with one another) and which are merely affiliated.
  • [ ] Assign a named owner for each touchpoint, with a reporting line to the legal or compliance function.
  • [ ] Set a written approval requirement before anyone joins a new association, consortium, or competitor collaboration.

Why it matters, and the traps. Section 1 of the Sherman Act, 15 U.S.C. § 1, reaches only concerted action — a "contract, combination... or conspiracy." Unilateral conduct is not a § 1 offense. That single word, agreement, is the hinge on which criminal antitrust exposure turns, and the agreement can be tacit, informal, oral, and never written down. It follows that your risk is concentrated precisely where your people are in a room with the people they are supposed to be beating.

The corporate-family question matters more than most compliance officers expect. Under Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), a parent and its wholly owned subsidiary have a "complete unity of interest" and cannot conspire with each other for § 1 purposes. But the shelter is narrower than it sounds. American Needle, Inc. v. National Football League, 560 U.S. 183 (2010), held that separately owned entities do not escape § 1 merely by acting through a joint entity, because the inquiry is functional: are these separate economic actors with independent interests whose agreement deprives the market of independent centers of decisionmaking? A joint venture, a franchisor system, or an association is not a Copperweld safe harbor.

The trap in Phase 1 is scope. Legal departments map the obvious forums and miss the quiet ones — the supplier council where three competitors compare freight surcharges, the LinkedIn message thread between two sales VPs, the recruiter who tells both companies what the other pays. If it is not on your map, it is not in your program.

Phase 2 — The bright lines: price fixing, bid rigging, market and customer allocation

  • [ ] Publish a one-page "never" list, in plain English, and require every high-risk employee to acknowledge it annually.
  • [ ] The never list must cover: agreeing with a competitor on price, price components, discounts, rebates, credit terms, surcharges, or freight; agreeing on output or capacity; allocating customers, territories, products, or channels; rigging bids (complementary bids, bid suppression, bid rotation, subcontract payoffs); and boycotting a customer or supplier in concert with a competitor.
  • [ ] Train employees that "agreement" needs no signature, no consideration, and no follow-through — a nod across a dinner table will do.
  • [ ] Establish a mandatory, immediate escalation rule: if a competitor raises any never-list topic, object out loud, leave, document it, and report it the same day.
  • [ ] Build the escalation into the code of conduct and the employee handbook, with a no-retaliation guarantee.
  • [ ] Confirm that no compensation plan rewards "market discipline," "price stability," or "avoiding disruptive competitors."

Why it matters, and the traps. Horizontal price fixing has been per se unlawful since United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940): no defense of reasonableness, no proof of market power required, no evidence that prices actually moved. The same per se treatment applies to horizontal market and customer allocation and to bid rigging. A § 1 violation is a felony carrying up to ten years' imprisonment and a $1 million fine for an individual and a $100 million fine for a corporation — and under the alternative fine statute, 18 U.S.C. § 3571(d), the fine can instead be twice the gross gain or twice the victims' gross loss, which in a real cartel is usually the much larger number. Then come the private plaintiffs: Clayton Act § 4, 15 U.S.C. § 15, gives them treble damages plus attorney's fees, and cartel cases arrive as certified classes. See Class Action Litigation: A Comprehensive Guide to Rule 23 for what that side of the exposure looks like.

Kestrel's dinner. Dana Ruiz is seated next to the sales VP of Kestrel's largest rival. Over the second course, he says: "Nobody's making money on the two-inch line. We're holding at list through Q1 — I assume you people are sane." Dana says nothing and changes the subject.

That silence is the problem. Courts have long treated a competitor's invitation followed by acquiescence and parallel conduct as circumstantial evidence from which a jury may infer agreement; Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), holds that parallel conduct alone will not get a complaint past the pleading stage, but Dana was not merely parallel — she was in the room, she heard the invitation, and she did not refuse it. If Kestrel then holds at list through Q1, the government has an invitation, an opportunity, and a follow. The compliant answer is loud and unambiguous: "Stop. I will not discuss pricing. This conversation is over." Then leave the table, memorialize it in an email to counsel that day, and report it. The noisy refusal is not theater — it is the evidence that saves the company.

Phase 3 — Labor markets: no-poach and wage-fixing agreements

  • [ ] Prohibit any agreement or understanding with another company — competitor or not, in any product market — not to solicit, recruit, or hire each other's employees.
  • [ ] Prohibit any agreement or exchange of intentions regarding wages, salary ranges, bonus structures, equity, or benefits.
  • [ ] Audit existing contracts for no-hire, no-solicit, and no-raid clauses: services agreements, JV documents, staffing contracts, franchise agreements, and M&A NDAs.
  • [ ] Where a no-solicit is genuinely ancillary to a legitimate collaboration (an M&A transaction, a JV, a services engagement), narrow it in writing: limited in duration, limited to employees actually engaged in the collaboration, and reasonably necessary to it.
  • [ ] Train HR, recruiters, and hiring managers separately. They are frequently the highest-risk group and the least-trained.
  • [ ] Route all compensation benchmarking through the safeguards in Phase 4 — never through direct calls to a peer's HR head.

Why it matters, and the traps. In October 2016, the DOJ and FTC issued Antitrust Guidance for Human Resource Professionals, announcing that naked no-poach and wage-fixing agreements would be prosecuted criminally as per se violations. The Antitrust Division has since brought a series of such prosecutions. The honest state of the law is that they have gone badly for the government at trial: juries acquitted the defendants in the DaVita and Jindal prosecutions, and courts have granted acquittals in others, while the Division did secure at least one corporate guilty plea for a naked no-poach agreement in the staffing sector. Do not read that record as permission. The per se theory has survived motions to dismiss in multiple district courts, the Division has not abandoned it, and the civil exposure is untouched: employee wage-suppression class actions under § 1 are among the most expensive antitrust cases in the country, and NCAA v. Alston, 594 U.S. 69 (2021), confirms that agreements restraining labor-market competition are squarely subject to antitrust scrutiny.

The trap is drafting inertia. No-hire clauses have lived quietly in vendor and JV templates for decades, and nobody re-reads them. Pull the templates. Note also that employee non-competes — agreements between employer and employee, not between competitors — are a different animal governed principally by state law; the FTC's 2024 rule banning most of them was set aside by a federal district court in Texas before it took effect and the Commission subsequently stopped defending it on appeal, leaving the state-law patchwork in place and case-by-case FTC and state enforcement continuing. This area moves; verify current status before relying on any summary, and see The Future of Non-Competes: FTC Rulemaking and the State-Law Patchwork.

Phase 4 — Information exchange and benchmarking

  • [ ] Prohibit direct competitor-to-competitor exchange of current or forward-looking price, cost, margin, bid, capacity, output, or wage information.
  • [ ] For any benchmarking or survey, require the "safeguards" architecture: an independent third-party administrator; historical data only (a common convention is at least three months old, and older is safer); aggregated across a sufficient number of participants (five or more is the customary floor) with no single participant exceeding a small share of any statistic; and outputs that are anonymized and cannot be reverse-engineered to any individual firm.
  • [ ] Require legal review and written sign-off before joining any survey, index, benchmarking club, or data pool.
  • [ ] Prohibit use of a common pricing algorithm, shared pricing software, or a revenue-management vendor that ingests competitors' non-public data and returns price recommendations, without specific antitrust counsel review.
  • [ ] Ban "signaling": public statements of future pricing intentions aimed at competitors rather than customers, including on earnings calls.
  • [ ] Document the business justification for every exchange in which you participate.

Why it matters, and the traps. Information exchange is where a compliant company most often walks into a cartel by accident. United States v. Container Corp. of America, 393 U.S. 333 (1969), condemned an informal reciprocal exchange of recent price information among competitors in a concentrated market — no agreement on price, no enforcement mechanism, just an understanding that if you asked, you would be told. The Court found the exchange itself had the effect of stabilizing prices and violated § 1. Not every exchange is unlawful; United States v. United States Gypsum Co., 438 U.S. 422 (1978), recognized that verification of a customer's price claim can have legitimate purposes, but it made clear that price exchanges among competitors carry serious risk and that intent matters in the criminal context. The exchange is judged under the rule of reason, but the practical rule is simpler: the more current, disaggregated, and forward-looking the data, and the more concentrated the market, the closer you are to the edge.

The two live traps in 2025 are algorithmic pricing and HR data. The agencies have taken the position, in enforcement actions and statements of interest, that competitors who feed non-public data into a common algorithm and act on its outputs may have formed an agreement even without ever speaking — a "hub-and-spoke" arrangement in which the software is the hub. And compensation benchmarking through informal peer calls is the single most common way an HR department commits a felony. Route it through a real third-party survey with real safeguards, and see The Employment Law Toolkit: From Hiring to Separation for the surrounding employment framework.

Phase 5 — Trade association meeting protocols: agenda, minutes, and the exit script

  • [ ] Require a written, distributed agenda for every association meeting, reviewed in advance by counsel.
  • [ ] Require counsel present (association counsel or your own) at any meeting where members discuss anything touching commercial terms.
  • [ ] Require accurate minutes, kept by the association, that record topics discussed and any objections raised.
  • [ ] Instruct attendees: no side meetings, no dinners with competitors that are not part of the official program, no "let's step outside" conversations, no group chats.
  • [ ] Give attendees the exit script: object audibly, insist the objection be recorded in the minutes, leave the room, and report to counsel the same day.
  • [ ] Prohibit association activity that establishes, recommends, or discusses prices, price ranges, discounts, credit terms, output limits, or standardized bid formulas.
  • [ ] Scrutinize association membership and certification criteria: rules that exclude a class of competitor from a commercially necessary benefit are a concerted-refusal-to-deal risk.
  • [ ] Log every association membership, with the named employee representative and the date of their last antitrust training.

Why it matters, and the traps. Trade associations are lawful and useful, and they are also where cartels are born, because they solve the cartel's hardest problem: getting the right people in a room repeatedly with a plausible reason. The association's own lawfulness is no shield — what the government prosecutes is the agreement that formed at the association, not the association.

The trap is the unofficial program. The agenda is clean, counsel is present, the minutes are impeccable — and then eight sales VPs go to a bar. Your policy must say, explicitly, that the compliance rules do not end when the meeting does. Kestrel's rule should be blunt: the association's antitrust policy governs the golf outing, the hotel bar, and the group text, exactly as it governs the ballroom.

Phase 6 — Standard-setting organizations and FRAND commitments

  • [ ] Obtain the SSO's IPR policy and its FRAND (fair, reasonable, and non-discriminatory) licensing commitments in writing before participating, and have counsel read them — they are contracts, and they bind you.
  • [ ] Comply scrupulously with patent-disclosure obligations: disclose relevant patents and applications when the policy requires it. Silence during standard-setting followed by an infringement demand after adoption ("patent ambush") is a well-recognized enforcement theory.
  • [ ] Never use the standards process to disadvantage a rival's technology on non-technical grounds, and never coordinate votes with competitors to exclude a product.
  • [ ] Train your SSO representatives that they are engineers in a room full of competitors: the technical agenda is safe; price, output, and customer talk is not, and the SSO badge does not change that.
  • [ ] Track every FRAND commitment your company makes, because it will be enforced against you — and against your patents' future acquirer.
  • [ ] Log every SSO membership, with the named representative and the date of their last antitrust training.

Why it matters, and the traps. Standard-setting is doubly sensitive because the standard confers market power on whoever owns the essential patents: once an industry commits to a standard, the patents that read on it become unavoidable, and their owner can hold up the entire industry. A FRAND commitment is the price of that power, and it is what keeps the standard-setting process from being an antitrust violation in itself.

Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988), is the anchor: a manufacturer that packed a standard-setting association's meeting with its own agents to exclude a competing product could be liable under the Sherman Act, and could not hide behind Noerr-Pennington petitioning immunity, because it was not petitioning the government — it was capturing a private standards body with commercial consequences of its own. Compare Allied Tube with the legitimate case: a technical committee that adopts a standard on the merits, with an open process and a disclosed IPR policy, is doing exactly what the antitrust laws want.

The trap is the engineer who does not know they are in a legally sensitive room. Your SSO representative is usually a technical person, not a commercial one, and they are frequently the least trained employee in the company on antitrust. Train them specifically. For the substantive licensing law that follows the commitment, see Standard-Essential Patents and FRAND Licensing in the 5G and IoT Era and, for the licensing mechanics, Intellectual Property Licensing: A Comprehensive Guide to Structuring and Negotiating License Agreements.

Phase 7 — Joint ventures and competitor collaborations

  • [ ] Require antitrust counsel review before any collaboration with an actual or potential competitor.
  • [ ] Document the procompetitive rationale — cost reduction, risk sharing, new capability, faster time to market — contemporaneously, before the deal closes.
  • [ ] Confirm the JV is a genuine integration of economic activity, not a naked agreement wearing a JV costume.
  • [ ] Tailor every restraint to be reasonably necessary to the collaboration: narrow in scope, duration, geography, and product.
  • [ ] Erect a clean team / firewall so that competitively sensitive information flows only to people who need it for the venture and not to the parents' pricing and sales organizations.
  • [ ] Prohibit the JV from becoming a channel for exchanging parent-level pricing, cost, or customer information.
  • [ ] Screen the venture for HSR reportability — JV formations frequently are reportable.

Why it matters, and the traps. Texaco Inc. v. Dagher, 547 U.S. 1 (2006), held that when two competitors form a legitimate joint venture and the venture sets the price of its own product, that is not per se price fixing — it is the core activity of a lawful entity, reviewed under the rule of reason. Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979), reached the same conclusion for the blanket license, because the joint product was something neither party could sell alone. Both cases depend on integration being real. A "joint venture" whose only function is to set the parents' prices is a cartel, and the label will not save it.

The trap is scope creep and the information leak. The clean team is set up correctly on day one and quietly dissolves by month nine, when the JV's commercial director starts copying both parents' sales VPs on a spreadsheet of competitor bids. Audit the firewall annually.

Phase 8 — Distribution and pricing: RPM, MAP, exclusive dealing, MFNs, tying

  • [ ] Distinguish clearly, in policy and in training, between horizontal (competitor) and vertical (supplier–distributor) restraints. The rules are entirely different.
  • [ ] For resale price maintenance: recognize that federal law reviews minimum RPM under the rule of reason, but that several states do not follow federal law, and structure accordingly.
  • [ ] Where you want price discipline without an agreement, consider a unilaterally announced and unilaterally enforced policy (a Colgate policy) or a properly drafted MAP policy governing advertised price only — and then do not negotiate about it.
  • [ ] Ensure MAP policies are announced, not agreed; enforced unilaterally; and never used as cover for reciprocal commitments with resellers.
  • [ ] Review exclusive dealing arrangements for foreclosure percentage, duration, and terminability.
  • [ ] Review most-favored-nation clauses, especially if you have market power or if MFNs are widespread in the industry.
  • [ ] Review bundling and tying arrangements, particularly conditioned sales tied to a product in which you have market power.
  • [ ] Screen price and promotional-allowance differences among competing resellers for Robinson-Patman exposure — an enforcement area that has recently reawakened.

Why it matters, and the traps. Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), overruled the 1911 rule of Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911), and made minimum RPM a rule-of-reason offense under federal law; State Oil Co. v. Khan, 522 U.S. 3 (1997), had already done the same for maximum RPM, and Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977), for non-price vertical restraints. But federal law is not the whole story. Maryland amended its antitrust statute after Leegin to make minimum RPM per se unlawful as a matter of state law, and California courts have applied a per se rule to vertical price fixing under the Cartwright Act; other states have taken varying positions, and state attorneys general have been active. A national distribution program built solely on Leegin is a program with a hole in it. Confirm the rule in every state where you sell.

United States v. Colgate & Co., 250 U.S. 300 (1919), preserves a seller's right to announce the terms on which it will deal and to refuse to deal with those who do not comply — unilaterally. The moment you negotiate, extract assurances, or accept a distributor's promise to comply, you have an agreement, and you are back inside § 1. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (1984), is the cautionary tale: a distributor's complaint about a discounter, followed by termination, is not enough on its own — but evidence tending to exclude independent action will get a plaintiff to a jury.

Kestrel again. Kestrel wants its dealers to stop advertising below 90% of list. A MAP policy — announced, applying to advertised price only, leaving each dealer free to sell at any price it chooses — is the low-risk route. What Kestrel must not do is call its three largest dealers, take their agreement to hold the line, and promise to police the fourth. That is an agreement, and if the dealers themselves pushed for it, it starts to look like a hub-and-spoke conspiracy among the dealers with Kestrel as the hub — a horizontal per se problem, not a vertical rule-of-reason one.

Phase 9 — Monopolization risk if you have market power

  • [ ] Estimate your share in each plausible relevant market — and take seriously how a plaintiff would define the market narrowly.
  • [ ] If your share is material (as a rough screen, above roughly 40–50% in any defensible market), treat unilateral conduct as a live legal risk and not merely a business decision.
  • [ ] Review exclusive contracts, loyalty and volume rebates, bundled discounts, tying, refusals to deal, and interoperability restrictions for exclusionary effect.
  • [ ] Confirm that below-cost pricing, if any, is not below an appropriate measure of cost with a realistic prospect of recoupment.
  • [ ] Train executives that "kill," "crush," "starve," "cut off their oxygen," and "make sure they can't compete" are the sentences the plaintiff will read to the jury.
  • [ ] Document the legitimate business justification — efficiency, quality, safety, cost — for any conduct that excludes a rival.

Why it matters, and the traps. Section 2 of the Sherman Act, 15 U.S.C. § 2, requires (1) monopoly power in a relevant market and (2) willful acquisition or maintenance of that power, as distinguished from growth from a superior product, business acumen, or historic accident. United States v. Grinnell Corp., 384 U.S. 563 (1966). There is generally no duty to deal with rivals: Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004), sharply confined Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), to its facts — a monopolist that terminated a voluntary and profitable prior course of dealing, sacrificing short-run profit for an anticompetitive end. Predatory pricing is nearly unwinnable for plaintiffs after Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993): below-cost pricing and a dangerous probability of recoupment. And a price squeeze without both a duty to deal and predatory retail pricing states no claim under Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U.S. 438 (2009).

The trap is that none of this protects you from the cost of being sued. A § 2 case is a two-year, eight-figure engagement even when you win, and the agencies have been increasingly willing to bring them. And note Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006): owning a patent no longer creates a presumption of market power in a tying case — but it does not create immunity either.

Phase 10 — Document and language hygiene (the "we will crush them" email)

  • [ ] Train every commercial employee on how their words read out of context, years later, projected on a courtroom screen.
  • [ ] Ban war-metaphor vocabulary in business documents: "dominate," "crush," "kill the competitor," "control the market," "our monopoly," "discipline the market," "understanding with," "gentleman's agreement."
  • [ ] Ban casual misuse of the word market share as a goal ("we need to take back our share of the account") where it can be read as allocation.
  • [ ] Require that competitor pricing information in internal decks state its source — and that the source never be a competitor.
  • [ ] Adopt and actually follow a records retention schedule, and suspend it immediately upon any hint of investigation.
  • [ ] Preserve the attorney-client privilege deliberately: legal advice is sought from counsel, marked, and not forwarded to the sales team as a talking point.

Why it matters, and the traps. No cartel prosecution has ever been built primarily on economics. It is built on documents: the calendar entry, the hotel bar receipt, the text that says "all good on our end," the deck that says "market discipline restored." Language hygiene is not about hiding conduct — it is about not creating false evidence of conduct that never happened, which is a real and frequent phenomenon. Meanwhile, when an investigation does become foreseeable, the duty to preserve attaches immediately; deleting anything at that point converts a possible antitrust case into a certain obstruction case. Work through Issuing a Litigation Hold and Preserving ESI: A Practical Checklist before you need it, and see White-Collar Crime and Corporate Criminal Liability: A Comprehensive Guide for how obstruction charges are built.

Phase 11 — The dawn raid and grand jury subpoena response plan

  • [ ] Write the plan now, print it, and put it at every reception desk and in every plant manager's drawer.
  • [ ] Designate a 24/7 response team: general counsel, outside antitrust counsel, communications, IT, and HR — with mobile numbers.
  • [ ] Instruct reception: be polite, do not obstruct, call the number on the card, ask agents to wait for counsel (they need not), and request a copy of the warrant or subpoena.
  • [ ] Read the warrant's scope: what premises, what items, what date range. Note anything seized outside it.
  • [ ] Assign a company "shadow" to accompany each agent, taking contemporaneous notes of what is searched and taken. Never interfere.
  • [ ] Segregate and assert privilege over legal files; ask that privileged material be sealed for later review.
  • [ ] Issue a litigation hold within hours and disable all auto-deletion.
  • [ ] Tell employees: you have the right to counsel, you have the right to decline an interview, and you have the right to have company-provided counsel present — but you must never lie to a federal agent, and you must never destroy a document. (18 U.S.C. § 1001; 18 U.S.C. § 1519.)
  • [ ] Give Upjohn warnings at every internal interview: I represent the company, not you; this is privileged, and the privilege belongs to the company, which may waive it. Upjohn Co. v. United States, 449 U.S. 383 (1981).
  • [ ] Recognize the difference between a grand jury subpoena (criminal — DOJ) and a civil investigative demand under the Antitrust Civil Process Act, 15 U.S.C. § 1312, or an FTC CID. Both are serious; only one puts people in prison.
  • [ ] Consider immediately whether individual employees need separate counsel, and expect that conflicts will arise.

Why it matters, and the traps. The first six hours determine the next six years. The most common catastrophic error is an employee who, unprepared and frightened, tells an agent something untrue — often a small, defensive, reflexive untruth — and thereby hands the government a § 1001 count that is easier to prove than the antitrust case. The second most common error is deletion. The third is an unprepared receptionist who says something like "our sales people are always talking to those guys." Rehearse this. See Responding to a Government Subpoena or Investigation: A Practical Checklist for the full mechanics.

Phase 12 — The leniency decision: the race to be first in the door

  • [ ] Know, before you need it, that the DOJ Antitrust Division's Leniency Policy grants complete protection from criminal conviction and fines to the first qualifying applicant to report a cartel — and to nobody else.
  • [ ] Build an internal escalation path fast enough to win that race: hours, not weeks.
  • [ ] Understand the conditions: report promptly upon discovery; take effective, timely remedial measures, including remediating the harm; provide full, continuing, complete cooperation, including making individuals available; and the applicant must not have been the ringleader who coerced others.
  • [ ] Understand the civil consequence: under the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA), a cooperating leniency applicant's civil damages exposure can be reduced from treble to single damages, without joint and several liability — but only if the applicant provides satisfactory cooperation to the civil plaintiffs.
  • [ ] Ask counsel about Amnesty Plus — additional credit for reporting a second, unrelated cartel while under investigation for the first.
  • [ ] Coordinate globally and immediately: leniency is jurisdiction-by-jurisdiction, and the EU, UK, Canada, Japan, Brazil, and others each run their own programs on their own clocks.
  • [ ] Document the discovery date. It will be the most litigated fact in the application.

Why it matters, and the traps. Leniency is a winner-take-all auction, and the only bid that matters is speed. If Kestrel's compliance hotline surfaces the dinner conversation on a Tuesday and the report reaches counsel on the following Monday, and a competitor's compliance officer called the Division on Thursday, Kestrel has lost — permanently. That is why Phase 2's same-day reporting rule is not bureaucratic fussiness. It is the mechanism by which a company converts a criminal catastrophe into a survivable civil matter.

The trap is that leniency requires prompt reporting upon discovery, and a company that "investigates for a few months to be sure" may have forfeited it. The second trap is that leniency protects the company and its cooperating current employees — it does not protect an employee who lies, and it does not protect a former executive who refuses to cooperate.

Phase 13 — M&A: gun-jumping and pre-closing conduct limits

  • [ ] Screen every deal for HSR reportability against the current-year thresholds. The thresholds and filing fees adjust annually; never rely on a remembered number. See Filing an HSR Notification: A Practical Checklist.
  • [ ] Observe the waiting period. Do not close, and do not act as if you have closed.
  • [ ] Between signing and closing, the parties remain independent competitors. Each sets its own prices, bids, and terms.
  • [ ] Do not give the buyer approval rights over the target's ordinary-course pricing, bidding, customer decisions, or hiring.
  • [ ] Draft covenants to preserve the business, not to control it: keep ordinary-course operations, no extraordinary transactions — not "no price changes without buyer's consent."
  • [ ] Run all competitively sensitive diligence through a clean team with a written clean-team agreement; sensitive data goes to outside advisors and designated clean-team members, not to the buyer's sales organization.
  • [ ] Do not coordinate bids, allocate customers, or jointly negotiate with customers or suppliers before closing.
  • [ ] Preserve deal documents carefully: Item 4(c)/4(d) documents — the strategy decks describing market share, competition, and synergies — will be produced to the agencies, and they will be read closely.

Why it matters, and the traps. Gun-jumping is not a technicality. It has two distinct legs: violating the HSR waiting period under 15 U.S.C. § 18a, which carries a civil penalty for each day of violation (a figure that is adjusted for inflation annually — check the current amount), and, separately, ordinary § 1 liability for coordination between two firms that are still legally competitors. The DOJ has brought civil gun-jumping actions on exactly these theories, including against an acquirer that exercised operational control over its target's business during the waiting period.

The deeper trap is diligence. The most natural thing in the world is for the buyer's VP of Sales to want the target's customer-by-customer pricing file, and the most dangerous. Route it through the clean team. For the surrounding process, see Merger Review and HSR Clearance: A Comprehensive Guide, Conducting Merger and Acquisition Due Diligence: A Practical Checklist, and The Mergers and Acquisitions Toolkit.

Phase 14 — Training, certification, auditing, and escalation

  • [ ] Deliver role-specific, live (or at least interactive) training to sales, pricing, procurement, HR, executives, and the board — not one generic e-module for everyone.
  • [ ] Train on scenarios, not statutes: the dinner, the phone call, the survey invitation, the recruiter's tip, the algorithm.
  • [ ] Obtain annual written certifications from high-risk employees that they have not participated in a prohibited communication.
  • [ ] Run a confidential, anonymous hotline with a documented non-retaliation policy, and test that it works.
  • [ ] Conduct periodic audits: sample sales emails and calendars, review association attendance, spot-check pricing decisions against competitor announcements, and review incoming competitor communications.
  • [ ] Perform a targeted risk assessment at least annually and after any material change in market structure, acquisition, or new market entry.
  • [ ] Discipline violations, consistently and visibly, including senior people. A program that never disciplines anyone is a program the government will not credit.
  • [ ] Report to the board or audit committee at least annually, and document that you did.
  • [ ] Keep records of every element above. Credit for a compliance program is granted on evidence, not assertion.

Why it matters, and the traps. Since 2019, the Antitrust Division has been willing to credit a genuinely effective compliance program at the charging stage — a reversal of its long-standing position — and it published Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations to explain what it looks for: program design, culture, risk assessment, training, monitoring and auditing, reporting mechanisms, incentives and discipline, and remediation. The Federal Sentencing Guidelines set the baseline for an "effective compliance and ethics program" at § 8B2.1, and antitrust offenses are sentenced under § 2R1.1.

The trap is the paper program. Prosecutors ask the same three questions: Is the program well designed? Is it applied earnestly and in good faith — is it adequately resourced and empowered? Does it work in practice? A binder no one has opened, a training no one attended, and a hotline no one has ever called answer all three questions in the government's favor. Build the program into the code of conduct and the handbook — see Building a Legally Sound Employee Handbook and Drafting an Employee Handbook That Holds Up: A Practical Checklist — and integrate it with the enterprise program mapped in The Corporate Compliance Toolkit.

Common mistakes to avoid

  1. Treating silence as safety. The employee who hears a price invitation and says nothing has not stayed out of it. Object out loud, leave, and report.
  2. Training only the lawyers. The people who commit antitrust felonies are in sales, procurement, and HR. Train them, in their language, with their scenarios.
  3. Assuming HR is low risk. Wage benchmarking by phone call and casual no-poach understandings are among the most common and most criminally exposed practices in American business.
  4. Confusing vertical and horizontal. Leegin liberalized vertical minimum RPM under federal law. It said nothing about competitors agreeing on price, and it did not repeal state law — Maryland made RPM per se unlawful by statute, and California treats vertical price fixing as per se unlawful under the Cartwright Act.
  5. Negotiating a "unilateral" policy. A Colgate policy or a MAP policy survives only so long as it is announced and unilaterally enforced. Ask a dealer to agree to it and you have created the agreement you were trying to avoid.
  6. Letting the JV firewall decay. Clean teams are set up correctly and then quietly abandoned. Audit them.
  7. Deal-team gun-jumping. Buyer's sales leadership asking for the target's live customer pricing file before closing is the single most common gun-jumping fact pattern.
  8. Slow escalation. Leniency is a race with exactly one winner. A four-week internal review is a lost application.
  9. Investigating without privilege discipline. Internal interviews without Upjohn warnings create confusion, conflicts, and waiver risk.
  10. Deleting anything. The obstruction case is always easier to prove than the antitrust case, and the sentences are not softer.
  11. Believing that acquittals mean permission. Government losses in the criminal no-poach trials did not change the DOJ's theory, and did nothing at all to reduce treble-damages civil exposure.
  12. Relying on a remembered HSR threshold. They change every year, as do the filing fees and the gun-jumping penalty amount.

The consolidated antitrust compliance checklist

Foundations

  • [ ] Competitor-touchpoint map maintained and owned
  • [ ] High-risk population identified (sales, pricing, procurement, HR, executives)
  • [ ] Annual risk assessment completed and documented
  • [ ] Board reporting done and minuted

The bright lines

  • [ ] One-page "never" list published and acknowledged annually
  • [ ] No agreement with competitors on price, output, customers, territories, bids, or boycotts
  • [ ] No no-poach or wage-fixing agreements; contract templates audited for stray no-hire clauses
  • [ ] Object-leave-document-report escalation rule trained and tested

Information

  • [ ] No direct exchange of current or forward-looking price, cost, bid, capacity, or wage data
  • [ ] Benchmarking runs through an independent administrator, with historical, aggregated, anonymized data
  • [ ] Pricing algorithms and revenue-management vendors reviewed for competitor-data ingestion
  • [ ] No forward-pricing signaling on earnings calls

Forums

  • [ ] Association agendas reviewed; counsel present; minutes kept
  • [ ] Exit script trained; no unofficial side meetings
  • [ ] SSO IPR policies and FRAND commitments understood and honored
  • [ ] Membership log current, with training dates

Collaborations

  • [ ] JVs reviewed by counsel; procompetitive rationale documented contemporaneously
  • [ ] Restraints narrowly tailored and ancillary
  • [ ] Clean team / firewall in place and audited
  • [ ] HSR reportability screened

Distribution

  • [ ] Vertical vs. horizontal distinction trained
  • [ ] RPM/MAP program state-checked (not just Leegin-checked)
  • [ ] MAP announced, not negotiated
  • [ ] Exclusive dealing foreclosure percentages reviewed; MFNs and bundles reviewed
  • [ ] Robinson-Patman screen on reseller pricing and promotional allowances

Unilateral conduct

  • [ ] Share estimated in each plausible market
  • [ ] Exclusionary conduct reviewed against § 2 standards
  • [ ] Business justifications documented

Hygiene and readiness

  • [ ] Language rules trained; war metaphors banned
  • [ ] Retention schedule followed; hold procedure ready to fire in hours
  • [ ] Dawn-raid plan printed, distributed, and rehearsed
  • [ ] Outside antitrust counsel on 24/7 speed dial
  • [ ] Leniency escalation path measured in hours
  • [ ] Global leniency coordination understood

Program

  • [ ] Role-specific training delivered and attendance recorded
  • [ ] Annual certifications collected
  • [ ] Hotline live, anonymous, and tested
  • [ ] Audits performed; violations disciplined, including at the top

Primary authority

A standing caution on state law. Federal antitrust law is not the whole of American antitrust law. Every state has its own competition statute, and they genuinely diverge — most importantly on resale price maintenance (Maryland's statute makes minimum RPM per se unlawful; California courts apply a per se rule to vertical price fixing under the Cartwright Act, while many states follow Leegin) and on indirect-purchaser standing (many states have "Illinois Brick repealer" statutes permitting indirect-purchaser damages that federal law forecloses). This checklist teaches the federal framework and flags divergence; it does not, and cannot, state a nationwide rule of state law. Confirm the rule in each state in which you sell.

Secondary sources. Areeda & Hovenkamp, Antitrust Law (the standard treatise); ABA Section of Antitrust Law, Antitrust Compliance: Perspectives and Resources for Corporate Counselors and Antitrust Law Developments; the DOJ/FTC Antitrust Guidelines for Collaborations Among Competitors (2000), still the clearest official statement of the ancillary-restraints and safe-harbor analysis for competitor collaborations.

Related UpLaw Resources

Related Guides & Articles

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Related Toolkits

This checklist is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. Laws vary by state and change over time; verify current requirements and consult qualified counsel before acting.