USA Trends and Developments Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
operation in securing evidence for prosecution. The revisions, however, have been met with criti - cism from practitioners who argue that the new requirements introduce greater uncertainty and risk for leniency applicants. Among other things, the DOJ reserves the right to not grant amnesty if it discovers that the individual or company self- reporting did not do so promptly, reports only after the DOJ begins its investigation, or fails to provide a plan for restitution. Cartel enforcement actions may also be declin - ing due to fewer instances of cartel behaviour by companies and individuals. Alternatively, techno - logical developments, which offer opportunities for companies to hide collusion more effectively, could be obscuring cartel activity from the view of enforcers. Regardless of whether revisions to the leniency programme are responsible for the decline in cartel enforcement, the decline has forced the DOJ to pursue different types of anti - trust theories and broaden its scope of inves - tigative activity. Unable to rely on the leniency programme as it has in the past, the DOJ has expanded its focus to include criminal enforce - ment of monopolisation conduct under Section 2 of the Sherman Act, a significant departure from past practices, and intensified its focus on labour market practices and algorithmic collu - sion. To bolster these efforts, the Division is also hiring data scientists and specialists to support its case teams to detect, investigate, and pros - ecute cases involving “algorithmic collusion” . Policy Developments The DOJ has broadly expanded its focus into Section 2 enforcement, labour market collusion and algorithmic pricing while continuing to pur - sue aggressive enforcement in areas where it has seen success such as with respect to the Pro - curement Collusion Strike Force. The DOJ’s will - ingness to pursue criminal enforcement actions
for monopolisation conduct under Section 2 of the Sherman Act marks a significant shift from the traditional focus on price-fixing, bid rigging and market allocation under Section 1. The DOJ has signaled its intent to bring criminal Section 2 cases if warranted by the facts and the law. A potentially significant development is the inter - play between the Trump administration’s aim of cutting government spending and the Division’s enforcement priorities. The Antitrust Division has so far been largely left out of larger efforts to downsize the federal government. An agency- wide reorganisation plan has been reported, which could be a setback for the Division. Cut - backs would include closing field offices in San Francisco and Chicago and folding the Division’s antitrust policy, economics and tech experts into a centralised policy office. AAG Slater has pro - posed cutting costs by reducing the Division’s reliance on outside experts, but appears to be pushing to shield major investigations from cuts. How the DOJ allocates or guards its potential - ly limited resources will illuminate its priorities going forward. State Enforcement Developments A major expansion of cartel enforcement is developing at a state level in the United States. State antitrust enforcers are looking to expand their ability to target criminal cartel conduct. Generally, state antitrust enforcers lack the kind of leniency programmes that federal authori - ties lean on in cartel investigations and pros - ecutions but often bring cases off the back of federal investigations. A number of states are hiring attorneys with prosecutorial experience directly into their antitrust divisions. Notably, the California Office of the Attorney General is adding personnel to its antitrust team to expand enforcement efforts. When the California Attor - ney General’s office last expanded its antitrust
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