USA Trends and Developments Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
Additionally, the revised guidance directs pros - ecutors to consider whether a corporation’s policies governing personal devices and com - munications applications, such as ephemeral messaging applications, impaired its ability to conduct internal investigations or respond to requests from prosecutors or civil enforcement or regulatory agencies. Use of ephemeral mes - saging systems will factor into charging and sentencing decisions, as well as whether leni - ency applicants have met their co-operation obligations. The DOJ has also suggested it may find defendants have committed obstruction of justice if their use of ephemeral messaging sys - tems results in a loss of evidence. The revised guidance also gives weight to the earnest and good faith application of corporate compliance programmes, by directing prosecutors to con - sider both the actual and perceived seniority and stature of those responsible for compliance functions within the company. It further directs prosecutors to consider whether a company provides for a well-functioning mechanism for a truly independent investigation, by qualified per - sonnel, that can conduct a root cause analysis, issue punishments, and generate an evolution in corporate practices. The Guidance Document is organised around three fundamental questions prosecutors should ask when reviewing the corporate compliance programmes. • Is the corporation’s compliance programme well designed? • Is the programme being applied earnestly and in good faith such that it is adequately resourced and empowered to function effec - tively? • Does the corporation’s compliance pro - gramme work in practice?
Each question directs prosecutors to consider the effectiveness of the programme through several lenses or factors. In updating its pros - ecutorial guidance to focus on the effectiveness of compliance and emergence of new technol - ogy like AI, the DOJ has publicly emphasised the important role it sees compliance pro - grammes playing in deterring antitrust and other criminal violations. Companies, more than ever before, need to ensure they have well designed, resourced and empowered programmes for compliance in place and consult with counsel to evaluate the quality of their own compliance programmes. Ongoing Enforcement Priorities: Labour Market Restraints, PCSF and Emerging Technologies Moving forward, cartel enforcers are anticipated to continue to actively prioritise anti-competitive labour market restraints, collusion in public pro - curement, and information sharing through new and emerging technologies. Federal and state antitrust enforcers shifted their focus to compe - tition in the labour markets during the first half of the 2020s. Under the Biden administration, the DOJ prioritised enforcement actions that would protect workers from allegedly anti-com - petitive conduct, such as no-poach agreements and wage fixing. These prosecutions have been largely unsuccessful with the DOJ dismissing the last in a series of no-poach cases in 2023 after a string of losses before juries and judges. Then in April 2025, the DOJ finally secured a criminal conviction in one of these cases. A federal grand jury had returned a superseding indictment in 2023 charging a Las Vegas home healthcare agency owner with conspiring to fix nurses’ wages and then fraudulently concealing that conspiracy and the government’s investigation so that he could sell his company for more than USD10 million. The three-week trial was held in
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