At a recent Practising Law Institute (PLI) webinar on antitrust, over 250 legal professionals joined to hear from three antitrust leaders: Nicole Castle, Zach Terwilliger, and Craig Seebald. In this Q&A, they explore what’s changing in enforcement, how companies can spot risks early, and what it takes to build a strong compliance culture.
Let’s start with the big picture. What recent leadership changes at federal agencies should companies be paying attention to?
Nicole Castle: There’s been a significant shift at the Federal Trade Commission (FTC). Andrew Ferguson has taken over as chair, replacing Lina Khan, which gives the commission a Republican majority—for now. It’s an important development, but one still facing legal challenges. What’s clear is that certain priorities—like scrutiny of large tech companies and labor market practices—aren’t going away. Appointments like Daniel Guarnera from the DOJ reinforce that continuity.
Zach Terwilliger: And at the Department of Justice (DOJ), Assistant Attorney General Gail Slater is now leading the Antitrust Division. She’s built a team of experienced enforcers with both public and private sector backgrounds. Their focus spans procurement fraud, algorithmic pricing, and other key areas. It’s a signal that aggressive enforcement is here to stay, even as leadership changes.
What are the key enforcement priorities today?
Craig Seebald: We’re seeing a mix of traditional and emerging areas. Cartel investigations—especially in sectors like construction and cement—remain consistent. But newer concerns, like algorithmic pricing, are gaining momentum. Regulators are trying to understand how technology can facilitate collusion or dampen competition, especially with AI in the mix.
Terwilliger: Procurement fraud is another hot area. I’ve seen firsthand how the DOJ’s Procurement Collusion Strike Force is using data analytics to detect unusual bidding patterns. There’s bipartisan support for rooting out waste and abuse, so this focus will continue. Also, labor market competition—particularly “no-poach” agreements—has been under the microscope, and recent DOJ wins suggest that push may intensify.
Seebald: One area that’s just starting to surface is the antitrust scrutiny of ESG efforts. There’s concern from the FTC and DOJ that institutional investors may be using ESG commitments to coordinate behavior across competitors, particularly in energy. It’s something we’re watching closely.
How do investigations typically begin? Are there early warning signs companies can look for?
Seebald: Investigations often start with disclosures from competitors, customers, or whistleblowers. Other times, a public speech or policy memo can hint at where the regulators are headed. While the DOJ’s leniency program used to drive many cases, that’s less common now. And we’re increasingly seeing civil litigation or media coverage spark government action. A good example is the RealPage litigation—private lawsuits came first, and DOJ followed.
Terwilliger: When civil and criminal investigations happen in parallel, companies face unique challenges—especially with privileged information. It often requires separate counsel for individuals and careful coordination across teams.
What are some proactive steps companies can take to reduce risk?
Castle: Start with a strong compliance program. That means training tailored to high-risk teams—like sales, HR, and pricing—and communication channels employees trust. Leadership buy-in is crucial; compliance needs to be embedded in the company’s culture, not just in a binder on a shelf.
Seebald: Conduct internal audits, especially in areas regulators are focused on. That might include reviewing employee emails, phone logs, or sales data. And don’t overlook “dawn raid” preparedness—every employee should know what to do if regulators show up unannounced. That includes calling legal counsel immediately and preserving all documents.
What’s your take on the DOJ’s leniency program? Is it still valuable?
Seebald: It’s still one of the most powerful tools companies have, but it’s a serious commitment. To qualify, you have to admit wrongdoing, fully cooperate, and often pay significant restitution. But the upside is real—you can avoid criminal prosecution and reduce civil liability.
Terwilliger: One strategic decision is whether to retain employees involved in the misconduct. In many cases, keeping them helps with cooperation and provides continuity during investigations.
How has the role of compliance evolved in recent years?
Terwilliger: Compliance isn’t just a checklist anymore—it has to be alive in the organization. That means dynamic, evolving programs that reflect real business risks. We’re seeing compliance functions get more resources and visibility at the C-suite level.
Castle: Enforcement priorities may shift with political winds, but the fundamentals of good compliance don’t change. DOJ guidance now emphasizes not just the existence of a program, but whether it’s effective in practice—can it detect and stop misconduct? Are leadership and the board engaged?
Seebald: Even something as simple as an annual message from the CEO about compliance can make a big difference. It reinforces that this isn’t just a legal issue—it’s a business priority. Regular training, scenario planning, and updates for new risks like algorithmic pricing go a long way.
Final Thoughts?
Seebald: Antitrust enforcement is evolving, and companies that treat compliance as an afterthought are vulnerable. It’s not just about avoiding fines—it’s about protecting your business.
Castle: The best defense is a proactive culture where people know what to look for, feel empowered to speak up, and know that leadership takes it seriously.
Terwilliger: Whether it’s procurement, labor markets, or tech, the pressure isn’t going away. Smart companies are getting ahead of it, not waiting for a knock on the door.
