USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
istration is expected to continue investigations into the role of PBM middlemen in the healthcare industry. The DOJ has also successfully targeted cases in the public procurement space over the last five years. During that time, the Procurement Collu - sion Strike Force (PCSF) has successfully pur - sued and supported prosecutions involving gov - ernment procurement, grants and programme funding both domestically and abroad. To date, the PCSF has opened more than 145 criminal investigations, secured more than 60 criminal convictions, and prosecuted over 85 compa - nies and individuals involving more than USD500 million in government contracts. Though PCSF efforts have resulted largely in prosecutions of small, local cartels, one can anticipate additional resources being applied. A subject likely to be of continued interest to DOJ enforcers is artificial intelligence and algorithmic pricing, particularly with the rapid development and adoption of AI tools by businesses. The Antitrust Division has hired data scientists and specialists to support its case teams to detect, investigate and prosecute cases involving “algo- rithmic collusion” . It has also been very vocal on the issue in press releases, speeches by officials and a series of statements of interest filed in pri - vate lawsuits alleging antitrust violations involv - ing common use of algorithmic pricing software by competitors and suggesting that algorithmic collusion can be a per se violation of the antitrust laws, subject to criminal enforcement. 7.5 Use of Messaging Applications and Chat Platforms The DOJ has provided updated guidance to emphasise its concern over the adoption of ephemeral messaging systems in day-to-day business communications. The DOJ’s position is
that a failure to preserve an ephemeral message where there is an obligation to preserve evidence can put a company at risk of obstruction of jus - tice charges or other sanctions. 7.6 “No Poach” and Labour Market Allocation Conduct The DOJ has taken the position that “no poach” and labour market allocations agreements can constitute per se antitrust violations. Joint FTC- DOJ Guidance provides that certain naked no-poaching agreements among employers, whether entered directly or through a third-par - ty intermediary, are unlawful. No poach agree - ments are “naked” when they are separate from or not reasonably necessary to a larger legiti - mate collaboration between the employers. Where a company can demonstrate a no poach agreement is ancillary to a legitimate purpose, the agreement will be evaluated under the rule of reason and not the per se standard. Although the DOJ has brought several no poach criminal prosecutions, it has generally been unsuccessful in persuading juries (and some judges) that this kind of conduct amounts to criminal behaviour. Indeed, it was not until April 2025 that the DOJ won its first conviction before a jury in a no poach case. In that case, United States v Lopez, No. 2:23-cr-00055 (D. Nev.), a federal jury convicted a home health agency executive of conspiring to fix the wages for home healthcare nurses in Las Vegas and for fraudulently failing to disclose the investiga - tion during the sale of the company. One rea - son convictions have perhaps been difficult is that until recently, the widespread nature of no poach conduct makes it seem less offensive than other types of criminal cartel behaviour. “No poach” agreements were common in business. Estimates suggest that no poach agreements covered 60% of major franchises in the United
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