If your company reports pricing data to industry benchmarks or participates in spot markets, you need antitrust safeguards in place. The Justice Department's recent settlement with egg producers highlights what regulators expect when companies interact with market-reporting services like Urner Barry Publications.
The settlements require defendants to adopt antitrust compliance programs and appoint compliance officers. This isn't just a suggestion for your organization; it's a blueprint for action.
What This Template Is For
This template provides a practical antitrust compliance program focused on benchmark reporting and competitive information exchanges. It's designed for companies that:
- Submit pricing or transaction data to industry benchmark publications
- Participate in spot markets or clearinghouses where competitors can observe bidding activity
- Attend industry meetings where pricing discussions might occur
- Share supply or demand information with trade associations
You'll get policy language, training requirements, monitoring procedures, and escalation protocols. While not exhaustive, it addresses the conduct the Justice Department targeted in its complaint. Consult legal counsel to review your specific risks.
Prerequisites
Before implementing this program, ensure you have:
Executive sponsorship. Your CEO or general counsel must publicly support this. Antitrust compliance fails when it's seen as just a compliance department project.
Clear scope. Identify every employee who submits data to benchmarks, bids in public markets, or attends industry events. Include sales, procurement, and operations teams.
Legal review. Have antitrust counsel review your current practices with benchmark publishers and competitors. Establish a baseline assessment before building controls.
Documentation access. Gather six months of communications with competitors, benchmark submissions, and industry meeting calendars for your initial risk assessment.
The Template
Antitrust Compliance Program: Benchmark Reporting and Competitive Information
Program Owner: [Title of designated compliance officer]
Effective Date: [Date]
Annual Review Date: [Date]
Section 1: Prohibited Conduct
Employees may not:
- Communicate with competitors about bidding strategies, including the number, timing, or pricing of bids
- Share with competitors any information about bids, prices, supply levels, or demand forecasts planned for benchmark publication
- Agree with competitors on the number, pricing, or other terms of bids or transactions
- Contact competitors about bids or transactions without a documented, legitimate business need (such as a joint venture governed by a written agreement)
- Submit bids or execute transactions with the intent to influence a benchmark publication rather than to complete a genuine commercial transaction
Section 2: Required Approvals
Before any employee:
- Attends an industry association meeting where competitors will be present
- Submits pricing or transaction data to a benchmark publication
- Participates in a cooperative, joint venture, or other arrangement involving competitors
They must:
- Complete the Pre-Event Antitrust Checklist (Appendix A)
- Obtain written approval from [compliance officer title]
- Bring the Competitor Meeting Script (Appendix B) to any in-person or virtual meeting
Section 3: Monitoring and Reporting
The compliance officer will:
- Review all benchmark submissions weekly for patterns that could suggest coordination
- Attend or monitor (via recording or minutes) all industry meetings where competitors participate
- Maintain a log of all competitor communications, including date, participants, subject, and business justification
- Investigate any report of potential antitrust violation within 48 hours
- Report quarterly to the [board/audit committee] on program effectiveness and any red flags
Employees must report immediately to the compliance officer if:
- A competitor initiates a conversation about pricing, bids, or market conditions
- They observe bidding patterns that appear coordinated
- They're asked to submit benchmark data that doesn't reflect actual transactions
- They learn of any agreement or understanding with a competitor
Section 4: Training Requirements
All employees in scope must complete:
- Initial antitrust training within 30 days of hire or role change
- Annual refresher training
- Event-specific briefing before attending any industry meeting
Training must cover:
- The Sherman Act prohibition on agreements that restrain trade
- Red-flag scenarios specific to benchmark reporting
- How to exit a conversation that turns anticompetitive
- Internal reporting procedures and anti-retaliation safeguards
Section 5: Recordkeeping
Retain for seven years:
- All communications with competitors (emails, texts, meeting notes)
- All benchmark submissions and supporting transaction data
- All training completion records and attestations
- All compliance officer investigation files
How to Customize It
Identify your benchmark exposure. Replace "benchmark publication" with the specific services your industry uses. If you report to multiple benchmarks, list each one and assign a responsible person for each.
Define "legitimate business need." Work with counsel to create a short list of acceptable reasons to contact a competitor (joint venture governance, customer-directed collaboration, standards-setting). Everything else requires pre-approval.
Tailor the training. Generic antitrust training won't work. Use real examples from your industry. If you participate in spot markets, show employees what coordinated bidding looks like. If you submit transaction data, explain how timing and volume can signal coordination.
Set monitoring thresholds. The compliance officer can't review every email. Define triggers: any email to a competitor's domain, calendar invites with competitor attendees, benchmark submissions above a certain volume. Use email keywords and calendar monitoring tools.
Adapt the reporting structure. If you don't have a dedicated antitrust compliance officer, assign this to your chief compliance officer or general counsel. Just make sure one person owns the quarterly board report.
Validation Steps
After you deploy the program:
Test the approval workflow. Have a sales manager submit a fake request to attend an industry conference. Time how long approval takes. If it's more than 24 hours, you've created a workaround incentive.
Audit benchmark submissions. Pull three months of data you've sent to benchmark publishers. Can you tie every data point to an actual transaction? If not, you have a gap.
Review competitor contact logs. Your compliance officer should have a record of every competitor interaction. Spot-check five entries. If the business justification is vague ("industry relationship"), you need better documentation standards.
Survey employees in scope. Ask: "If a competitor started talking about pricing at a trade show, what would you do?" If the answer isn't "excuse myself and report it immediately," your training didn't land.
Run a tabletop exercise. Give your compliance officer a hypothetical: "An employee reports that our largest competitor suggested we both reduce our spot market bids next quarter." Walk through the investigation and escalation process. Identify gaps before you face a real scenario.
This template won't prevent every antitrust risk, but it addresses the specific conduct that led to the Justice Department's complaint: coordinated benchmark manipulation through bidding strategies and information exchange. If your company interacts with industry benchmarks, these controls are essential.
