USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
States in 2016, and that 20% of labour force participants in the United States were covered by a non-compete agreement in 2014. Market allocation cases are illegal even if intended to help smaller businesses compete. One obstacle in market allocation cases is that courts have held that per se treatment for hori - zontal market allocation requires the DOJ to show “cessation of ‘meaningful competition’” in the alleged allocated labour market. This means any continued or ongoing cross-hiring can cast doubt on whether an agreement’s true intention was to allocate the relevant labour market. 7.7 Leniency v Ex Officio Investigations Leniency applications have declined over the last decade, and particularly since the DOJ announced changes to the leniency programme in 2022. The 2022 revisions raised costs, or perceived costs, associated with applying for leniency, and created the perception that the DOJ would be less favourable towards leniency applicants moving forward. Leniency applicants also face significant civil exposure from follow- on litigation and significant administrative bur - dens of responding to investigations in multiple jurisdictions. Additionally, Type B leniency, which may be available when a company is not the first to self-report, no longer presumptively protects current directors, officers and employees. This modified approach risks putting the company and its people at odds with each other, which can greatly disincentivise companies from seek - ing leniency and offering co-operation. There also appears to be less cartel behaviour, as industries, companies and individuals have learned the hard lessons of the enormous cost of cartel violations. Technological developments may also be helping those who are still engag -
ing in unlawful conduct hide their activities more effectively. 7.8 Domestic v International Investigations Early in the 2000s the Antitrust Division shifted its priority toward large international cartels with the uncovering of the auto-parts cartel. This was the most significant and wide-ranging cartel inves - tigation ever conducted by DOJ. As a result, 85% of corporations fined at least USD10 million between 1994 and 2018 have been foreign com - panies. More recently, the Division has had more of a domestic focus, targeting a range of alleg - edly anti-competitive conduct related to labour market collusion. The Division continues to co- operate and work with enforcers from around the world to investigate, deter and prosecute cartel schemes but it does not favour or pursue one type of cartel investigation over another, and has not released recent data on cross-border versus domestic cartel investigations. 7.9 Environmental, Social and Governance (ESG) Cartels ESG collaborations are another area where increased investigative activity could be seen. Past antitrust enforcers have consistently taken the position that ESG co-ordination carries anti - trust risks, but the federal enforcement agen - cies have not brought ESG-related actions. At the state level, attorneys general have filed ESG-related lawsuits, including two major cases in 2024. One lawsuit involved allegations that efforts by private equity companies to pres - sure coal companies to lower carbon emissions constituted anti-competitive conduct; the oth - er alleged truck manufacturers engaged in an industry-wide conspiracy to phase out internal combustion vehicles in violation of the antitrust laws.
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