USA – WASHINGTON Trends and Developments Contributed by: Jordanne M. Steiner and Kenneth R. O’Rourke, Wilson Sonsini Goodrich & Rosati
trust criminal investigation, criminal trial or plea. In those instances, the parties often settle the civil cases prior to the civil trial due to the risks of a high dollar exposure and concerning evidence suggesting the possibility of the existence of an unlawful agreement. Defendants are often motivated to settle because: • damages awarded at trial are trebled by statute; • where multiple defendants are found to have conspired, they are jointly and severally liable for the total damages caused by the conspiracy, so any defendant that does not settle can be left holding the bag for trebled damages caused by all defendants (minus the settlement amounts paid to plaintiffs by the settling conspirators); • plaintiffs, after prevailing, are also entitled to recover their reasonable attorneys’ fees and costs, which can amount to tens of millions of dollars or even much more in these com - plex class action cases that sometimes last a decade; • lengthy civil discovery proceedings and tri - als are both costly and may be significant distractions to management’s pursuit of its business goals; and • a loss at trial can carry far more harm to the defendant company’s/companies’ reputation(s) and customer standing than a settlement in which liability is neither admitted nor determined. On the other hand, companies that believe they are improperly targeted by civil plaintiffs or being forced to pay extravagant settlements may resist to the end as a matter of principle, not principal. To be sure, some defendants have prevailed at summary judgment and/or at trial (see, for exam -
ple, In re Broiler Chicken Antitrust Litigation, No 16 C 8637 (N.D. Ill.)). Private plaintiffs have been particularly active in asserting violations in labour markets and alleg - ing algorithmic information sharing/price-fixing, bringing follow-on class action litigation related to a number of the DOJ’s criminal labour markets cases as well as separate litigations in the algo - rithmic information sharing/price-fixing space. For a detailed discussion of follow-on civil class action litigation in labour markets, see Jordanne M Steiner & Kenneth R O’Rourke, “Working Hard or Hardly Working? Antitrust Labor Markets: An Update from the United States” , published by the International Bar Association Antitrust Committee in its Competition Law International publication. Conclusion The final year of the Biden administration, 2024, was nearly the same as the prior year with respect to the DOJ’s filing of new criminal antitrust enforcement indictments, although the fines collected decreased significantly. Private enforcers continued their aggressive pursuit of private civil litigation throughout 2024 and will undoubtedly keep it up in 2025. Looking ahead to the new administration and its expected course of action, we anticipate seeing additional cartel cases brought by the DOJ (not - withstanding AAG Slater’s public focus on Sec - tion 2) and private plaintiffs alike – focused on alleged antitrust violations in the labour markets and on conduct involving information exchange, artificial intelligence and/or algorithmic pricing; all will be in the crosshairs of public and private enforcement in the months and years to come.
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