The U.S. Department of Justice is expanding its investigation into potential anticompetitive conduct in the American beef industry, now including major grocers like The Kroger Co., Walmart, and Costco Wholesale Corp. Whether you're in food retail or any industry with concentrated supply chains, this is a wake-up call to review your antitrust compliance controls.
This checklist will help you ensure your organization can identify and prevent antitrust violations. It's designed for compliance professionals assessing current controls and identifying gaps.
Prerequisites
Before diving into the checklist, make sure you have:
- Access to your organization's Standards of Business Conduct and antitrust policy
- A current organizational chart showing reporting relationships for purchasing, pricing, and commercial teams
- Documentation of your last antitrust training cycle (who attended, when, what topics)
- A list of industry associations or trade groups your employees participate in
If you're missing any of these, start there. You can't audit controls you can't locate.
Checklist Items
1. Your antitrust policy identifies specific prohibited conduct with examples.
Avoid generic language about "complying with antitrust laws." Your policy should explicitly prohibit price-fixing, bid-rigging, market allocation, and information exchanges with competitors. A strong policy states, "Do not discuss pricing, costs, margins, or capacity with competitors, even informally," with scenarios illustrating what that means at a trade show.
2. Employees in commercial roles receive role-specific antitrust training annually.
General compliance training isn't enough. Anyone involved in pricing, purchasing, sales, or competitive strategy needs targeted instruction on Sherman Act and Clayton Act violations. Your purchasing managers should be able to explain why sharing supplier pricing with a competitor violates Section 1 of the Sherman Act and have completed a training module in the past year that tested this knowledge.
3. You have documented protocols for industry association participation.
Trade association meetings are high-risk environments for antitrust violations. Your protocols should cover what topics are off-limits, when to object and leave, and how to document concerns. A practical guide might be a one-page document your sales director carries to conferences, listing prohibited discussion topics and providing exact language for objecting.
4. Pricing decisions are documented with legitimate business justifications.
If regulators question a pricing decision, you need to show it was based on your own costs, competition, and market conditions, not coordination with competitors. This could be meeting minutes or email trails showing that a price increase was driven by your supplier cost analysis, not a conversation with a competitor about "stabilizing the market."
5. Your organization maintains a record retention policy that covers antitrust-relevant communications.
Under the Sherman Act and Clayton Act, you may need to produce documents during an investigation. Your Record Retention Policy should specify how long to keep pricing analyses, competitive intelligence, and trade association materials. A good policy preserves pricing committee records for seven years and flags these as "litigation hold" candidates if an investigation opens.
6. Competitive intelligence gathering has guardrails.
Learning about competitors is legal. Coordinating with them isn't. Your process should specify approved sources (public filings, customer feedback, published reports) and prohibited methods (asking shared suppliers for competitor data). A sound procedure requires market research to come from publicly available sources and prohibits employees from asking customers to share what competitors are bidding.
7. You have a process to identify and review Hart-Scott-Rodino Act triggers.
If your organization pursues mergers or acquisitions, someone needs to know when Hart-Scott-Rodino Act filing is required. Your corporate development team should have a checklist that flags any transaction over the current HSR threshold for immediate legal review, updated annually as thresholds change.
8. Internal Reporting Channels explicitly cover antitrust concerns.
Your speak-up program should make clear that employees can report suspected antitrust violations without retaliation. Your hotline intake form should include "antitrust or competition concerns" as a distinct category, and your Anti-Retaliation Safeguards should explicitly protect employees who report competitor coordination.
9. You conduct periodic antitrust risk assessments for high-risk functions.
Don't wait for a DOJ investigation to discover exposure. Assess where your organization intersects with competitors: procurement, trade shows, standard-setting bodies, joint ventures. An annual risk assessment should map which departments interact with competitors, what information they access, and whether current controls are adequate.
10. Leadership demonstrates commitment to antitrust compliance in communications.
Tone at the top matters. If executives talk about "working with the industry" to manage pricing or capacity, employees might hear permission to coordinate. Your CEO's quarterly message should emphasize that pricing decisions must be made independently, and your general counsel should brief the board on antitrust risks annually.
Common Mistakes
Treating antitrust as a legal issue, not an operational one. Your legal team can draft policies, but your commercial teams make daily decisions that create exposure. Antitrust compliance belongs in procurement meetings and sales planning sessions, not just legal memos.
Assuming trade association staff will police conversations. Association counsel may be present, but you're responsible for your employees' conduct. If a competitor starts discussing pricing, your team needs to object and leave immediately.
Failing to update training after enforcement trends shift. The DOJ's expansion of its beef industry investigation signals increased scrutiny of buyer-side conduct, not just seller cartels. If your training still focuses only on price-fixing among sellers, it's incomplete.
Overlooking informal information exchanges. Antitrust violations don't require signed agreements. A casual hallway conversation at a conference where competitors share margin expectations can be evidence of coordination.
Next Steps
If you identified gaps while working through this checklist, prioritize them by risk. Missing antitrust training for commercial roles is a higher priority than a policy formatting issue.
Schedule a meeting with your legal team to review any "no" answers, particularly items 1, 2, and 8. These are foundational controls that should be in place regardless of your industry.
For items where you answered "yes" but couldn't immediately produce evidence, that's a documentation problem. If you can't show regulators that you trained employees or assessed risks, you didn't do it in a way that counts during an investigation.
Finally, don't treat this as a one-time exercise. Antitrust risk evolves as your business grows, enters new markets, or faces supply chain disruptions. Review these controls annually, and whenever your organization faces significant commercial pressure that might tempt coordination with competitors.
