Cartels 2025

USA – WASHINGTON Trends and Developments Contributed by: Jordanne M. Steiner and Kenneth R. O’Rourke, Wilson Sonsini Goodrich & Rosati

state enforcers are likely to continue throughout 2025 (see here ). Finally, she signalled her sup - port of existing cases brought against Big Tech companies, suggesting we may see even more enforcement against Big Tech, including in the artificial intelligence arena, throughout 2025 and beyond. Similarly, AAG Slater again signalled support of cases brought against Big Tech companies at the “Little Tech Competition Summit” held on 2 April 2025 in Washington DC, which AAG Slater attended in place of the ABA’s annual Antitrust Spring Meeting. When asked about big-picture competition problems facing the country, AAG Slater responded with references to market power wielded by large tech companies (see here ). She also expressed a desire to increase anti - trust enforcement to prevent monopolisation and the exercise of monopoly power by incum - bents, particularly in emerging technology sec - tors such as artificial intelligence (see here ). As AAG Slater’s tenure progresses, therefore, we will gain more insight into this administration’s cartel enforcement priorities. Increased focus on interactions between competitors: information exchange The DOJ recently delivered a strong message about information exchanges among competi - tors. In a Statement of Interest filed on 1 Octo - ber 2024, it stated that “standalone information sharing... can undermine the competitive pro- cess; increase coordination among rivals; and cause an asymmetry of power in the market” and, therefore, can constitute a violation of the antitrust laws (see Statement of Interest of the United States, In re Pork Antitrust Litigation, No 0:18-cv-01776-JRT-JFD (D. Minn. 1 October 2024). Thus, according to the DOJ, information

exchanges may, themselves, constitute an anti - trust violation in certain circumstances. The Statement of Interest provides insight into the Department’s view on the two key questions in a Section 1 claim involving information shar - ing: (i) whether there was “concerted action;” and (ii) whether the action was an “unreasonable restraint” of competition. As to concrete action, the DOJ’s view is that an exchange of competitively sensitive information between or among competitors can constitute concerted action in at least two ways. First, a reciprocal exchange of information can, itself, constitute the concerted action. Stated different - ly, “free-standing information exchange among competitors is... itself concerned action...” . Sec - ond, information exchange could support an inference that a price-fixing or output-restriction agreement exists and, therefore, could be relied upon as evidence of a conspiracy to fix prices or restrict output. In such a circumstance, the price-fixing or output-restriction agreement is the asserted concerted action. Of course, com - plicated fact patterns create challenges for the DOJ’s theory. As to an unreasonable restraint, in the DOJ’s view, the method by which a court should analyse whether the information sharing unreasonably restrains competition depends on the form of the concerted action. If the alleged concerted action is a price-fixing or output-restriction agreement (conduct which can support criminal liability) and information exchange is offered as support for the existence of such agreement – then courts should apply the per se standard, according to the DOJ. If the information exchange itself, how - ever, is the alleged concerted action, then courts should apply the rule of reason standard.

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