Document type: Checklist Practice area: Antitrust — Price Fixing and Cartels Jurisdiction: United States Last reviewed: 5 September 2026

Section 1 — Inventory

  • Every pricing, revenue management, yield, rate, and market data tool identified
  • Procurement searched for contracts containing pricing, revenue management, yield, rate, benchmark, market data
  • Data team asked for every external feed
  • Each business unit asked directly — departmental subscriptions are the common blind spot
  • Internally built models and spreadsheets included
  • Tools acquired with an acquisition included

Section 2 — Classify each tool

  • 1. Own-data optimization — no competitor data. No Section 1 issue
  • 2. Public-data monitoring — public competitor prices. Low risk; check provenance and terms of use
  • 3. Pooled non-public data — competitors contribute confidential data. Risk concentrates here
  • 4. Delegated pricing — vendor sets prices or adoption is automatic. Highest risk; may support per se treatment
  • Classification determined from data flows and contract, not from the vendor's or business team's description

Section 3 — Data provenance

  • Table built: element, source, public or non-public, own or third-party, currency, how obtained
  • Every competitor-derived field traced to its original human or public source
  • Salesperson-reported data separated by source: customer-volunteered (lawful) vs. competitor employee (not)
  • Scraped data: public pages only; authentication and terms of use reviewed
  • Shared consultants, trade associations, and joint ventures examined as conduits
  • Forward-looking competitor data identified — the most dangerous category
  • Competitor-derived fields tagged with provenance category at the point of entry

Section 4 — Pooling safeguards (category 3 tools)

  • Historical, not current or forward-looking — a lag of at least three months
  • Aggregated so no participant is identifiable, including by inference in a thin segment
  • At least five participants, none exceeding roughly 25% of the aggregate
  • Administered by an independent third party receiving raw data and publishing only aggregates
  • Available to any industry participant on the same terms
  • No accompanying discussion of pricing intentions, output, or strategy among participants
  • Vendor does not disclose participation, competitor identities, or adherence rates to subscribers

Section 5 — Contract review

  • Data contribution obligations: what, how often, how current
  • Vendor's right to use the firm's data in products sold to competitors
  • Any adherence requirement, target, or incentive — remove
  • Fee structure: success fees tied to market-level metrics are a serious problem; own-performance fees are not
  • Vendor rights to review declined recommendations or escalate deviation — remove
  • Participation disclosure obligations — prohibit
  • User group and advisory board expectations
  • Firm's audit and information rights over the vendor
  • Termination and disposition of contributed data
  • Antitrust indemnity for claims arising from product design — request at renewal

Section 6 — Model configuration

  • Automatic price adoption disabled
  • Competitor-identifiable displays disabled
  • Forward-looking competitor feeds disabled
  • Market-level competitor dashboards disabled
  • Objective function documented and approved
  • Training data documented
  • Constraints and floors documented, with the basis for each
  • Design decisions attributable to a named approver

Section 7 — Model testing

  • Sensitivity: how much does the recommendation move with competitor inputs held against own inputs?
  • Individualization: do differently situated participants receive materially different recommendations?
  • Directionality: does the model ever recommend a decrease?
  • Response to deviation: what does it recommend to others after one participant undercuts?
  • Historical replay against the pre-adoption period
  • Tests run under counsel's direction; results routed through counsel

Section 8 — Human review

  • Review documented with a reason drawn from the firm's own circumstances — inventory, cost, capacity, customer commitment, strategy
  • Not "market conditions," "competitor pricing," or "the recommendation"
  • Tiered depth: reason code for routine, written note above a band, second approver above a threshold
  • Genuine authority to decline, with no acceptance-rate metric in anyone's compensation
  • Reasons retained through system migrations
  • Adherence and deviation data reported quarterly to compliance

Section 9 — Competitor information policy

  • Lawful: customer-volunteered competitor quotes; published prices; public statements; properly constructed benchmarks
  • Not lawful: competitor employee statements; shared consultant or association conduits; another's confidential documents; reciprocal sharing; anything obtained by misrepresentation
  • Rule stated simply: you may learn anything the market tells you, and nothing a competitor tells you
  • Quarantine procedure for unsolicited competitor information: logged, not used, escalated
  • Procedure when a competitor starts discussing pricing: say you cannot discuss it, leave, write it down, report the same day
  • User group and conference attendance reviewed; no pricing-strategy sessions

Section 10 — Document hygiene

  • Business cases state the value proposition in terms of the firm's own decisions, never market-wide pricing
  • The sentence "this only works if everyone uses it" never written or said
  • Board and executive materials reviewed for market-wide pricing claims
  • Vendor sales materials assessed; if they promise market-wide discipline, obtain written correction, renegotiate, or exit
  • Search terms run periodically: only works if, everyone uses, market discipline, rational pricing, industry-wide, acceptance rate, override

Section 11 — Training

  • Delivered to everyone who touches pricing, with the firm's own products
  • Scenario-based, twenty minutes, annual
  • Covers: the competitor-conference scenario; customer-reported prices; the vendor's adherence disclosure; overriding a recommendation; writing a business case
  • Attendance recorded
  • Named owner in the pricing organization, trained and empowered to say no

Section 12 — Governance

  • Legal gate on any new pricing, market data, or benchmarking subscription, embedded in procurement
  • Gate kept light for category 1 and 2 tools so it is not routed around
  • Standing question at each renewal: what changed in the product?
  • Annual provenance refresh
  • Re-audit annually for category 3 tools, and on vendor or product change
  • Board or audit committee reporting, delivered by counsel

Section 13 — Acquisitions

  • Target's pricing tools, contracts, and adherence data requested in diligence
  • Prior audits, investigations, CIDs, and subpoenas requested
  • Trade association memberships and data exchange participation requested
  • Specific antitrust representation covering pricing tools and information exchange
  • Special indemnity and escrow where diligence raises a concern
  • Pre-closing covenant to terminate where the finding is serious
  • Clean team protocol for the diligence itself — current pricing data exchanged between competitors is itself an exchange
  • Target's tools integrated into the audit programme immediately on closing

Section 14 — If something serious is found

  • Stop the conduct immediately and document that it stopped
  • Litigation hold issued to relevant custodians and systems
  • Audit converted into a counsel-led investigation with a defined scope
  • Leniency assessed urgently — the window rewards only the first participant
  • Civil exposure assessed separately: class actions, state indirect purchaser claims, opt-outs, foreign proceedings
  • Remediation completed and documented, with dates
  • Disclosure obligations reviewed: financing documents, insurers, pending transactions

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