USA Trends and Developments Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
Introduction Cartel enforcement in the United States has undergone a notable transformation over the past decade. While criminal prosecutions have declined markedly, enforcement agencies have not retreated from antitrust oversight. Instead, the Department of Justice Antitrust Division (DOJ or the “Division” ) and state authorities have broadened their enforcement strategies, focus - ing on emerging areas such as labour market restraints, algorithmic pricing and monopolisa - tion conduct. These shifts reflect both evolving economic dynamics and the government’s will - ingness to pursue novel legal theories to deter and prosecute anti-competitive behaviour. This article surveys the current landscape of cartel enforcement, analyses recent policy and compli - ance developments, and highlights key areas of continued regulatory focus in the US. Criminal Enforcement Trends The United States have seen a few years of his - torically low levels of criminal antitrust enforce - ment activity relative to the prior decade. Total criminal penalties collected dropped dramatically from a high of USD3.6 billion in 2015 to USD529 million in 2020. In 2024, fines collected totaled USD10.6 million, which is just slightly higher than the USD2 million collected at the programme’s nadir in 2022. The DOJ filed 20 criminal cases in 2024, an uptick from nine in 2023, but lower than in all but three years since 2016. These numbers represent a dramatic decline from the 60 cases filed in 2015 and 51 cases filed in 2016. The Anti - trust Division brought charges against only five corporations and 20 individuals in 2024. Over the last two years combined, in 2023 and 2024, the Division charged only seven corporations compared to 42 individuals. This is a historically low number of corporate charges relative to indi - vidual charges.
Despite bringing fewer overall cases and col - lecting lower penalties, the DOJ maintained an outwardly aggressive posture with respect to criminal antitrust enforcement, particularly under the leadership of AAG Jonathan Kanter during the Biden administration. This is likely to continue under the leadership of newly con - firmed AAG Gail Slater during the second Trump administration. The Division has been willing to take risks and push the boundaries of criminal enforcement, even if it means facing losses at trial. This aggressive stance is evident in the DOJ’s willingness to litigate cases under less tra - ditional antitrust theories. For example, the DOJ filed cases attempting to bring certain types of labour market violations, such as no-poach and wage-fixing agreements, which were previously generally only prosecuted civilly, within the ambit of criminal enforcement. Until recently, however, the Division struggled to secure convictions in several high-profile cases, including a series of wage-fixing and no-poach criminal trials, and the broiler chicken price-fixing cases, which resulted in multiple mistrials and eventual acquittals. Declining criminal cartel enforcement is like - ly partly attributed to the Division’s evolving approach to the leniency programme, which introduced more stringent requirements and less certainty for applicants in 2022. Since then, an increased hesitancy by companies to apply for leniency due to perceptions of a less favour - able environment for applicants and concerns about rising costs of follow-on civil litigation has led to fewer amnesty applications. The leni - ency programme has been the backbone of the DOJ’s cartel enforcement programme since the programme’s 1993 overhaul created significant incentives for companies to self-report cartel activity. The programme’s newer revisions were aimed at increasing transparency and predict - ability as well as the utility of applicants’ co-
376 CHAMBERS.COM
Powered by FlippingBook