This article is a guest post by Parker Miller, Jens-Olrik Murach, partners in the antitrust practice of the law firm Alston & Bird, and senior associate Robert Poole.

Chief Financial Officers (CFOs) are no strangers to drafting and approving public statements about corporate strategy and performance. Historically, these statements have carried well-known risks, particularly in the securities law arena.

However, a new risk is emerging: competition and antitrust enforcement agencies are paying closer attention to CFOs' remarks on earnings calls.

Antitrust authorities and private litigants have historically scrutinized companies' public statements for evidence of collusion. Under this theory, statements ostensibly directed at investors, customers, or suppliers may be intended to signal competitors to coordinate market conduct.

The highest-risk statements include those commenting on a company's future conduct, predicting how competitors or the market should or will behave—especially when they touch on sensitive business factors such as price, output, or capacity.

Common examples include: "We are preparing to raise prices to pass on rising energy costs affecting the entire industry," or "Capacity discipline will help the industry avoid price wars."

Litigants argue that such statements are signals to the market intended to influence others' behavior, potentially leading to collusive outcomes. Competitors' subsequent announcements may then be cited as evidence of anticompetitive coordination or even a collusive agreement.

What is new, however, is that powerful competition and antitrust enforcement agencies are beginning to systematically review public communications. This trend is most pronounced in the European Union. There, the European Commission's Directorate-General for Competition (DG COMP) recently used automated language processing tools to screen more than 350,000 earnings call transcripts from nearly 15,000 companies between 2004 and 2022 for traces of anticompetitive collusion.

The European Commission fed search terms into the tool to identify potentially collusive statements, such as the examples above. It then triangulated statements from a specific set of competitors to identify patterns that might suggest collusive behavior. The screening results can serve as a basis for further investigations, including unannounced inspections of company premises.

The European Commission's efforts are not theoretical. Based on the results of the new screening tool, DG COMP conducted dawn raids on the world's largest tire manufacturers in 2024. Reports indicate that the investigation and raids have already prompted at least one tire manufacturer to cooperate with the Commission.

Although the outcome of that investigation remains uncertain, the EU General Court has confirmed that manufacturers' statements on earnings calls can provide sufficient legal basis for dawn raids.

The conclusion is clear: the European Commission's focus on earnings calls and other public corporate communications will persist and may intensify through machine learning tools.

This trend is troubling and runs counter to the prevailing view that greater corporate transparency leads to more efficient markets and better investor outcomes. To date, the context of company statements—such as whether they were made solely in response to analysts' questions—does not appear to have been considered by the European Commission.

The European Commission is not alone. In the United States, litigants have long relied on earnings call statements and other public information to support antitrust claims. However, courts have traditionally not considered such statements sufficient to imply anticompetitive activity.

U.S. litigants hope this will change soon. Given the EU's use of earnings call statements as a basis for investigations, U.S. enforcement agencies and plaintiffs may argue that courts should give greater weight to public statements.

Indeed, within weeks of the European Commission's announcement of dawn raids on tire manufacturers, multiple class actions were filed in U.S. courts and ultimately consolidated into a multidistrict litigation (MDL). Plaintiffs' complaints emphasized the defendants' earnings calls and the Commission's active investigation prompted by those calls.

In the United States, even in the face of the European Commission's recent scrutiny of earnings calls, strong defenses remain available. The definition of antitrust violations under EU law is very broad and does not require agreement on specific market conduct. Under EU law, it is sufficient that competitors reduce competitive risk through actual cooperation; moreover, the exchange of commercially sensitive information can itself constitute an antitrust violation.

EU courts even apply a presumption that exchanging commercially sensitive information affects companies' behavior in the market, a presumption that is very difficult to rebut in practice. Therefore, claims based on earnings call statements will go further in the EU than in the United States.

Even so, no CFO wants to bear the reputational or legal costs of antitrust litigation. Therefore, CFOs should be wary of the headwinds from the EU.

Earnings calls are now scrutinized for signs of collusive behavior, placing CFOs in a very difficult position. If a company discloses too little, it faces liability under securities laws and regulations; if it discloses too much, it faces antitrust liability.

Companies should accordingly reassess their communication practices, including training for executives and other employees involved in public corporate communications. Particular caution should be exercised with statements involving pricing, market conditions, capacity, and how competitors should or might act.

In today's regulatory environment, CFOs should assume that antitrust enforcement agencies are listening.