Antitrust

DOJ Launches the Comply with Care Task Force

On August 29, 2025, Assistant Attorney General Gail Slater announced the formation of the Department of Justice’s (“DOJ”) new Comply with Care task force.  The initiative will target perceived “gamesmanship” and problematic tactics by parties involved in merger and conduct investigations.  The announcement signals an increasingly aggressive approach by DOJ to discovery disputes and compliance failures, including pursuing penalties against parties that fail to preserve evidence or comply with the Hart-Scott-Rodino (HSR) Act, overuse the attorney-client privilege, or submit deficient privilege claims.

Enforcement Context and the Road to the Task Force

The task force is the latest in a series of moves by DOJ to crack down on tactics it views as hindering its investigations or circumventing the legal process, including several recent examples highlighted by AAG Slater in her speech:

Failures to provide complete and accurate information pursuant to the HSR Act

• Failures to File: This January, DOJ accused KKR & Co. Inc. (“KKR”) of violating the HSR Act by altering documents in HSR filings for at least eight transactions, failing to make timely HSR filings for at least two transactions, and systematically omitting required documents in HSR filings for at least 10 transactions.  The DOJ filed a civil lawsuit against KKR and is pursuing more than $650 million in civil penalties and disgorgement. 
• Failures to Produce Required Documents:  In August 2025, DOJ and UnitedHealth Group Incorporated (“UnitedHealth”) announced the parties had reached an agreement to settle DOJ’s lawsuit to block UnitedHealth’s acquisition of Amedisys.  That suit included allegations that Amedisys had failed to produce documents in response to a Second Request and falsely certified compliance under the HSR Act.  The proposed settlement includes a $1.1 million civil penalty for the alleged HSR violations.

A pattern of abuse of attorney-client privilege

• Blanket Assertions of Privilege:  In October 2020, DOJ accused Bain & Company (“Bain”) of misusing the attorney-client privilege by asserting blanket privilege over thousands of relevant documents relating to consulting work Bain performed for Visa in response to a Civil Investigative Demand (“CID”) in the Visa/Plaid merger investigation.  DOJ brought an enforcement action against Bain alleging that the privilege log showed that virtually all the relevant emails did not involve an attorney, or merely included an attorney as a copyee. The DOJ dismissed its petition after it filed suit to block Visa’s acquisition of Plaid, noting it would instead seek the documents as part of that litigation.
• Corporate Policies that Abuse Attorney-Client Privilege:  Google’s “Communicate with Care” initiative instructed employees to add in-house lawyers to emails whenever they dealt with a sensitive issue.  In its monopolization litigation against Google, DOJ alleged that Google improperly withheld tens of thousands of documents in discovery as a result of the “Communicate with Care” policy and sought sanctions against the company.  While the U.S. District Court for the District of Columbia acknowledged concerns about the alleged conduct, it declined to impose sanctions given that it had occurred before DOJ filed its lawsuit.

Failures to preserve evidence

• Systematic Deletion of Evidence:  Also in U.S. v. Google (Search), DOJ challenged Google’s failure to preserve and produce ephemeral messages from its internal chat system.  Google’s internal chat messages were set to automatically delete certain messages after 24 hours unless employees manually changed the default setting.  After the practice came to light, DOJ filed a sanctions motion alleging that this automatic deletion policy led to the intentional loss of years of potentially relevant communications.  The U.S. District Court for the District of Columbia said in an opinion that while it did not condone this practice, it would not impose sanctions because it had already found Google liable for violating antitrust laws.

DOJ Doubling Down on Efforts to Rectify Gamesmanship

This task force is the latest in a string of efforts by DOJ to rectify perceived gamesmanship by parties appearing before the Antitrust Division.  In recent years, DOJ has revised its model timing agreement and rejected certifications for inadequate privilege logs, citing concerns over delayed and excessive privilege claims.

The DOJ has also updated its external guidance to address ephemeral messaging.  The DOJ’s model second request, for example, now requires parties to provide their document retention policies for ephemeral messages.  At the ABA Antitrust Spring Meeting in 2024, a senior DOJ official noted that DOJ “will not hesitate to bring obstruction charges” where companies fail to retain ephemeral messages.

Spotlight on Procedural Breaches Outside the United States

Similar trends are emerging outside the United States, with authorities in Europe taking a more aggressive stance on procedural compliance.  The European Commission recently imposed its first ever penalty for the provision of incomplete or misleading information in the context of antitrust investigation, and has two open investigations concerning similar alleged offenses during merger reviews.  Those investigations relate to KKR’s 2024 acquisition of Telecom Italia unit NetCo (which the Commission approved unconditionally) and Kingspan’s proposed acquisition of Trimo (which was abandoned in 2022 after the Commission opposed the deal).  The Commission has previously imposed substantial fines for similar breaches in the merger context: EUR 110 million in 2017 on Meta, EUR 52 million in 2019 on General Electric, and EUR 7.5 million in 2021 on Sigma-Aldrich.

In the UK, the Competition and Markets Authority (“CMA”) has issued several penalties for similar offenses in recent years.  However, until recently the maximum fine was limited to GBP 30,000 (plus a daily fine of up to GBP 15,000 for ongoing non-compliance).  This has changed with the coming into force of the Digital Markets, Competition and Consumers Act (“DMCCA”), which now gives the CMA powers to impose fines of up to 1% of global turnover (with additional daily penalties of 5% of daily turnover for continued non-compliance).  These powers are yet to be used, but it can be expected that future penalties will be substantially higher than the GBP 25,000 fine Keysight received in April 2025 for failing to provide a large volume of documents responsive to a CMA information request. 

European authorities are also following the lead of DOJ with an increased emphasis on targeting ephemeral messages during antitrust investigations.  Last year, the Commission imposed a EUR 15.9 million fine on International Flavors & Fragrances for the deletion of relevant WhatsApp messages.  In the UK, the DMCCA has given the CMA powers to target ephemeral messaging during its investigations and places more onerous obligations on businesses to preserve potentially relevant evidence, including ephemeral messages.

Key Takeaways

The launch of Comply with Care signals that DOJ is treating procedural compliance as a central component of antitrust enforcement.  In light of DOJ’s recent efforts and new task force dedicated to this issue, as well as enforcement trends internationally, companies should anticipate more aggressive scrutiny of internal processes and legal privilege practices, and prepare for action enforcement that treats procedural missteps as standalone violations or leverage points in broader investigations.