USA – CALIFORNIA Trends and Developments Contributed by: Eric Enson and Ann Rives, Crowell & Moring LLP
and local government contracts. For decades, however, these criminal provisions of the Cart - wright Act have not been invoked by the Attor - ney General, which has focused instead on civil proceedings as its primary means of antitrust enforcement. However, in a significant shift in enforcement strategies, in early-2024, California Assistant Attorney General Paula Blizzard announced that, for the first time in 25 years, California is “reinvigorating criminal prosecutions under the Cartwright Act” . Blizzard made a point of noting that the Cartwright Act allows for imprisonment in county jail, which can be less agreeable than state or federal prisons, calling that fact “prob- ably the biggest deterrent that I have” . Separately, in February 2025, Attorney General Rob Bonta announced his support for the leg - islature’s SB763, which would increase Cart - wright Act criminal penalties for corporations to USD100 million, from today’s USD1 million penalty, and increase prison sentences for indi - viduals found guilty of antitrust violations to as much as five years. The bill would also impose new civil penalties of up to USD1 million per vio - lation of the Act. In forecasting what types of criminal cases may be brought, the Attorney General, as well as the CLRC, have repeatedly emphasised the importance of protecting free and open labour markets. However, the state’s recently filed com - plaint against a leading sanitation services com - pany, while alleging illegal “no poach” conduct, asks for an injunction and civil penalties under the state’s Unfair Competition Law rather than seeking criminal charges. In addition, in a March 2025 speech, Assistant Attorney General Blizzard noted that “state pro-
curement is also an area that we will look closely at” . This type of collusive conduct impacting state and local government procurement was last criminally prosecuted by the Attorney Gen - eral in the 1990s. Advancing Bans on Pricing Software and Algorithms With the increasing role of technology in the marketplace, particularly in the pricing of retail goods and services, California appears to be positioning itself at the forefront of new laws aimed at curbing illegal price agreements. Sev - eral bills currently making their way through the California legislature could, if passed, have far- reaching implications for how companies doing business in California price their goods and ser - vices. The California Assembly Bill 325 and Sen - ate Bill 384, as drafted, seek expansive prohibi - tions against the use, distribution of, and inputs into algorithmic pricing and supply software, even where there is no express co-ordination among competitors on the use of such software or the setting of prices. Their enactment would reach every business that uses software applica - tions to develop pricing, supply levels and other commercial terms in California. With the complexity of today’s marketplace and its rapidly changing conditions, businesses, large and small, often use software tools and technology to efficiently and dynamically price their goods and services. The technology can be licensed from third-party providers or devel - oped internally by software engineers and pric - ing teams. AB325 and SB384, as written, would largely bar using the software tools and technol - ogy to price their goods and services, regardless of whether licensed or developed internally. AB325, for instance, would prohibit the use or distribution of a pricing algorithm that (i) incorpo -
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