This blog post is the third in a three-part series exploring the intersection between AI and antitrust. (Read Part I and Part II.)

Part III: Proactive Steps

Despite rapid AI developments and changes in the law, described in Part I and Part II of this series, there are some measures companies can undertake to protect themselves from missteps:

1.         Mandatory Antitrust Training that Addresses the Risks of AI.  Many previously-effective compliance programs have not incorporated the topic of AI or its concomitant risks.  At a minimum, individuals should not reach an agreement with competitors on price-fixing or allocating customers, and implement it using AI or any other technology.  Moreover, AI should not be used to monitor whether co-conspirators are complying with or undermining the illicit agreement.

2.         Companies Should Implement Policies Regarding Personal Devices, Instant Messaging and AI.  Enforcers have a broad toolkit to retrieve emails and texts.  In March 2023, the U.S. Department of Justice Criminal Division (DOJ) updated its Evaluation of Corporate Compliance Programs to include guidance on the use of personal devices and messaging apps such as WhatsApp and Signal to conduct business.  Companies are now expected to have policies that specifically address employees’ work-related use of personal devices and messaging apps.  In the event of an investigation, DOJ may lessen penalties for companies that have these policies and increase consequences for those that don’t.  The Division will likely formally or informally adopt this policy in the near future.  A forward-thinking company will update its compliance policies to address AI usage. 

3.         Ask Counsel to Stay Informed.  Companies may wish to ask qualified outside counsel to stay informed of developments and bring any significant or relevant news to their immediate attention.  Counsel with CIPP-US or similar credentials are well positioned to follow trends and explain how changes will impact companies’ business