United States: Cartels

The United States federal antitrust laws provide for both civil and criminal penalties for corporations and individuals. Section 1 of the Sherman Act prohibits “[e]very contract, combination, in the form of trust or otherwise, or conspiracy, in restraint of trade of commerce among the several states, or with foreign nations.” 15 U.S.C. § 1. In addition to criminal enforcement of the Sherman Act, private parties (including state and local governments) can bring civil actions for damages due to Sherman Act violations through Section 4 of the Clayton Act. 15 U.S.C. § 15.

A criminal violation of Section 1 of the Sherman Act has four elements: (1) an agreement or concerted action (2) between two or more potential competitors (3) in an unreasonable restraint of trade (4) in or affecting interstate commerce or commerce with foreign nations. To convict a defendant under this provision, the government must prove each of these elements beyond a reasonable doubt.

Certain industries are exempted from the requirements of the Sherman Act by federal statutes, including the Webb-Pomerene Act (export trade); the Capper-Volstead Act (agriculture); McCarran-Ferguson Act (insurance); the Shipping Act and the Merchant Marine Act (ocean cargo); and the Defense Production Act (defense production). Other exempted groups include states and certain state-supervised entities under the Parker Immunity doctrine, joint lobbying or litigation efforts between competitors under the Noerr-Pennington doctrine, and Major League Baseball.

Judicial precedent divides potential violations of the Sherman Act into two categories: conduct that is unlawful per se, and conduct that is subject to the rule of reason. Conduct that is unlawful per se may be prosecuted without proof of an effect on the market. Conduct that is unlawful per se includes certain horizontal restraints such as price-fixing; bid-rigging; and geographic, market, and customer allocation. The Department of Justice (“DOJ”) has recently signalled that it also views “no-poach” and other anti-competitive labour market agreements as per se unlawful. Conduct subject to the rule of reason includes other agreements between competitors, such as information exchanges and joint ventures. This category of conduct requires showing that the anticompetitive effect on the market is unreasonable compared to its procompetitive effect. Due to the difficulty of proving this beyond a reasonable doubt, the DOJ typically prosecutes only per se violations criminally.

The Foreign Trade Antitrust Improvements Act (FTAIA) clarifies the application of the US antitrust laws to conduct that occurs outside the jurisdiction. 15 U.S.C. § 6a. Under the FTAIA, the government may only prosecute foreign conduct that has a “direct, substantial and reasonably foreseeable” effect on US commerce. However, the meaning of “direct, substantial, and reasonably foreseeable” is not well-settled law. The law is also unsettled as to whether the FTAIA applies with the same force to both criminal and civil actions, although some courts have recently treated criminal cases similarly to civil actions with regard to the FTAIA. The DOJ’s Antitrust Division (the “Division”) is increasingly aggressive in recent years in pursuing investigations and prosecutions of cartel behaviour outside the United States.

The DOJ’s Antitrust Division and the Federal Trade Commission (“FTC”) can investigate cartel cases. However, the FTC may only challenge Sherman Act violations civilly, while the Division may enforce the federal antitrust laws through both civil suits and criminal prosecution. As a result, the FTC ordinarily refers evidence of criminal cartel conduct to the Division for enforcement, as the Department has exclusive jurisdiction over criminal cartel enforcement. The FTC can investigate and challenge per se illegal conduct that falls short of a criminal violation. A United States Attorney’s Office may also investigate and prosecute civil and criminal antitrust violations after receiving approval of the Assistant Attorney General of the Division.

In addition to federal antitrust enforcement, some states have statutes providing their attorneys general authority to investigate and prosecute cartel cases. State attorneys general may also sue civilly to recover treble damages for violations of federal antitrust law.

After learning of a potential antitrust violation through public reports, industry whistle-blowers, or other sources, the Division may open a criminal antitrust investigation as a preliminary inquiry. The Division considers the following when presented with a request to open a preliminary inquiry: (1) whether there is reason to believe that an antitrust violation may have been committed; (2) what amount of commerce is affected; (3) if the investigation will duplicate or interfere with other efforts of the Division, the FTC, a United States Attorney, or a state attorney general; and (4) whether allocating resources to the matter fits within the needs and priorities of the Division.

After any preliminary investigation, the Division ordinarily convenes a grand jury. Through the grand jury, the Division can gather relevant documentary and testimonial evidence, which it may ultimately present to the grand jury. The grand jury then determines whether to issue an indictment charging the defendant and initiating formal criminal proceedings. In addition to an indictment, the Division can also file a criminal complaint or information against a defendant.

The criminal statute of limitations for a Sherman Act antitrust offense is five years. 18 U.S.C. § 3282(a). Thus, the DOJ must bring charges within five years of the date of the offense. The civil statute of limitations for a Sherman Act antitrust offense is four years.

In a criminal cartel case, the DOJ can utilise the grand jury in its investigation. The grand jury may issue subpoenas for documentary (subpoena duces tecum) or testimonial (subpoena testificandum) evidence. A witness who refuses to testify in response to a grand jury subpoena may be held in contempt and be subjected to fines and imprisonment. The government can also bring obstruction of justice charges against individuals who refuse to testify or who attempt to impede enforcement efforts by destroying evidence or providing false information to the government. The Division has pursued a number of obstruction cases in recent years, suggesting increased enforcement on this issue.

The DOJ may also conduct unannounced searches of businesses and residences in order to seize information and documents (including by retaining the original copies). During the search itself, the DOJ may secure and seal the premises. The US Constitution requires that the DOJ obtain a search warrant from an independent authority before conducting a search or seizure. To obtain a search warrant, the Division must submit an affidavit stating facts that show probable cause that a crime has been committed, that evidence of the crime exists, and that the relevant evidence is on the premises to be searched. There are some exceptions to the warrant requirement, such as when a party being searched voluntarily hands over the evidence. The Division can also conduct surprise visits to individuals that are not represented by counsel without a search warrant.

The DOJ may also conduct informal witness interviews with individuals not represented by counsel. These interviews often occur at the company’s premises or at the employee’s home.

In a civil case, parties (potentially including, as noted, the FTC or DOJ) may request the production of specific documents or information and request written or oral testimony of individuals. If the party is the DOJ or FTC, this may be accomplished through a civil investigative demand (“CID”), which is compulsory. CIDs may not be used to conduct searches of business premises or residential premises nor seizures of property found at those premises.

The Division is obligated to ensure that its personnel do not access privileged documents, including those that may have been seized during a search. Parties may claim attorney-client privilege or privilege based on the work product doctrine.

The attorney-client privilege protects confidential communications between a client and an attorney for the purpose of obtaining legal advice. This includes communications between in-house counsel and company employees. However, not all communications with in-house legal counsel are privileged, such as when an attorney is copied on a message. Rather, the communication must contain or seek legal advice. The work product doctrine protects materials prepared in anticipation of litigation by counsel or by the client at counsel’s request.

In most cases, communications with foreign attorneys are privileged if the advice relates to US law or a US proceeding.

The Antitrust Division Leniency Policy allows the first individual or company to self-report its involvement in an antitrust cartel to avoid prosecution if it “cooperates with the [DOJ]’s investigation and prosecutions, and meets other conditions.”

The Corporate Leniency Policy traditionally offers two types of leniency. Both require that applicants confess fully to their participation in any conspiracy, take steps to end the participation, and commit to full cooperation with the DOJ in subsequent investigations and enforcement actions. Type A leniency requires additionally that the company have voluntarily come forward before the DOJ became aware of any illegal conduct, and in exchange, it confers automatic amnesty on the organisation and cooperating employees. Type B leniency permits applications for amnesty after the DOJ has learned of the illegal conduct and is granted only if the DOJ lacks evidence to successfully convict the applicant and determines that the leniency would otherwise not be unfair. Under Type B leniency, immunity from prosecution for employees is not automatic but will be considered. Since 2019, the DOJ also considers a company’s corporate compliance programme when considering whether to grant Type B leniency.

On April 4, 2022, the Division updated its longstanding leniency policy to include a new condition: the leniency applicant must, “upon its discovery of the illegal activity, promptly report[] it to the Antitrust Division.”  The promptness of reporting is measured from the “the earliest date on which an authoritative representative of the applicant for legal matters—the board of directors, its counsel (either inside or outside), or a compliance officer—was first informed of the conduct at issue.” Additionally, the new guidance also requires applicants to develop restitution plans earlier in the leniency process. In order to receive a conditional leniency letter, applicants must present “concrete, reasonably achievable plans” about how they will make restitution at the outset of the investigation, rather than developing such a plan as the investigation proceeds. (As under the prior leniency guidelines, in order to receive a final leniency letter, applicants must actually pay restitution.)

Leniency is only available to the first party to qualify. However, judges may consider a company’s cooperation as a mitigating factor for sentencing, and the DOJ may credit later-cooperating parties in its investigations or plea bargaining, which may result in a reduced sentence or fine. “Leniency plus,” which is explained in Section 13, may also allow for reduced sentencing based on a party’s leniency status in a different market.

The DOJ operates a marker system where a company can claim a place in line for leniency. To obtain a marker, an applicant must: (1) report that they have uncovered some information or evidence indicating that the applicant has engaged in a criminal antitrust violation and disclose the general nature of the conduct discovered; (2) identify the industry, product, or service involved in terms that are specific enough to allow the Antitrust Division to determine whether leniency is still available and to protect the marker for the applicant; and (3) identify the client. The marker allows the company a finite period of time—typically, 30 or 45 calendar days—to conduct a preliminary internal investigation into the nature of its role in the conspiracy. As discussed in Section 9, the timeliness of reporting is now a factor under the revised guidelines.

Because the leniency programme is only available on a “first in” basis, the marker system can play a critical role in determining which amnesty applications will be granted. Only one organisation or individual can receive leniency per conspiracy, and the DOJ reports that “organisations have lost the race for leniency by a matter of hours and faced significant fines” as well as prosecution of their senior executives as a result.

Cooperation obligations are laid out in a conditional leniency agreement which may be revoked based on the leniency applicant’s noncompliance at any time prior to the conclusion of the investigation. A leniency applicant must fully cooperate with the government investigation and subsequent enforcement actions, which may include providing testimony at trials of co-conspirators. For a cooperating company, cooperation typically also includes requirements to produce executives for interviews and grand jury testimony. Cooperation obligations typically also include the production of documents to the DOJ regardless of the location of the documents. For leniency applicants with foreign operations, they may also be required to translate documents, which can be burdensome.

Leniency recipients typically have no confidentiality requirements, but the DOJ has certain obligations and discloses the contents of a leniency application only with the consent of the applicant. However, the information may be discoverable in both civil litigation against the leniency applicant and in criminal proceedings against other parties, although the DOJ typically intervenes to stay discovery in related civil cases during the pendency of its investigation.

Current employees who cooperate with the DOJ’s investigation are automatically included in Type A leniency, and they are eligible for leniency in a Type B application. Employees who do not fully cooperate are typically, and explicitly, excluded from the conditional leniency letter. The Division is under no obligation to extend leniency to former directors, officers, or employees, although parties may negotiate to have these individuals explicitly included in the immunity. The Division’s policy is typically to include former directors, officers, and employees in the immunity when they “provide substantial, noncumulative cooperation against remaining potential targets” or when their cooperation is necessary for their former employer’s leniency application to be sufficient.

No current or former directors, officers, or employees of an organisation that has already applied for leniency may be considered for individual leniency. Individuals who come forward and admit their involvement in the criminal antitrust violation as part of the corporate confession will be considered for non-prosecution protection under their employer’s leniency.

The DOJ provides additional rewards for certain cooperating companies. Under the “leniency plus” programme, a cooperating company in one investigation may receive special benefits for reporting information about an additional antitrust violation occurring in a different industry. Leniency plus status also means that the company will not be fined in connection with the second conspiracy, and cooperating employees, officers, or directors will not be prosecuted by the DOJ for that offense. The Division may also reduce the sanctions it seeks for the first offense.

Conversely, a company that cooperates with an investigation may be subject to the “penalty plus” policy if the DOJ discovers that the company has failed to disclose information about separate antitrust activity. Under this policy, the company foregoes credit under leniency plus and the DOJ will generally seek a more severe punishment for the additional conduct.

Criminal charges may be resolved by plea agreements and deferred prosecution agreements.

The DOJ often engages in plea bargaining. In a typical plea agreement, a company or individual defendant pleads guilty to the antitrust violation and agrees to full cooperation with the DOJ’s investigation and subsequent enforcement actions. In return, the DOJ may recommend a “downward departure” during sentencing to impose a punishment less severe than the minimum of the range given by the Sentencing Guidelines. While a district court has the discretion to reject the plea agreement, the DOJ’s recommendation, or the Sentencing Guidelines, it will routinely select a sentence in line with DOJ’s recommendation when there is a plea agreement and often defers to the agreement reached by the parties so long as it believes it is fair and reasonable.

The DOJ may also resolve criminal charges with a deferred prosecution agreement. A DPA typically provides that the DOJ will bring charges against the defendant but decline to move forward on those charges as long as the defendant meets the requirements laid out in the DPA. As with a plea agreement, these requirements typically include full cooperation with the DOJ’s investigation. Recent years have seen an increase in the Division’s use of DPAs. The Division justified this increase with regard to participants in federal programmes in particular by identifying an interest in avoiding debarring the companies from participation in federal programmes, which could be detrimental to important markets.

Parties should weigh the benefits of avoiding a costly trial and achieving certainty regarding the sentence against the costs of a guilty plea that may be admissible as prima facie evidence in related civil suits.

At the same time, however, admissions in a US proceeding potentially may be used against a party in foreign jurisdictions. As a result, increasingly, parties should consider their exposure in all relevant jurisdictions in determining whether to enter into a settlement or defend against the government’s case.

US authorities engage in extensive international cooperation. Enforcement actions such as raids are often coordinated internationally, and the US has mutual legal assistance treaties (MLATs) in place with other countries that provide for information sharing, assistance with service of documents, and other forms of cooperation. Cooperation is limited by the US authorities’ obligation to safeguard information, which can extend to the requirement for a court order to permit sharing of information gathered through a grand jury subpoena.

In addition to cooperation, the DOJ also considers when to proceed with a US enforcement action when a foreign enforcement action is already proceeding. In such circumstances, the DOJ considers four questions: (1) Is there a single, overarching international conspiracy?; (2) Is the harm to US business and consumers similar to the harm caused abroad?; (3) Does the sanction imposed abroad take into account the harm caused to US businesses and consumers?; and (4) Will the sentence imposed abroad satisfy the deterrent interests of the United States?

In addition to international cooperation, federal authorities may cooperate with state-level authorities in pursuing parallel investigations and enforcement actions related to the same conduct.

For corporations, Sherman Act violations carry a maximum fine of either $100 million or a fine calculated under the “double the gain, double the loss” rule, which calls for calculating a fine based on twice the gross amount the antitrust co-conspirators gained through the violation or twice the gross amount that the victims lost through the violation, whichever is greater. These alternative fines may exceed the $100 million ceiling provided for in the Sherman Act, although the government must prove the amount of gain or loss in these cases beyond a reasonable doubt.

For individuals, the Sherman Act provides for criminal penalties of up to $1 million and 10 years’ imprisonment. DOJ may alternatively seek to impose fines based on the “double the gain, double the loss” rule on individuals as well. According to the DOJ, individual criminal sanctions, including prison sentences, are the “single most effective deterrent to antitrust offenses.” The Division thus prioritises “holding culpable executives and employees accountable, particularly high-level corporate officers responsible for corporate misconduct.”

As discussed above with regard to plea agreements, however, the DOJ may recommend reduced sentences for both corporate and individual defendants who cooperate significantly with the government’s investigative efforts.

Courts typically base antitrust fines on the guidance in the United States Sentencing Guidelines. The formula begins with a base fine of 20% of the total volume of commerce affected by the conduct. As a note, the definition of “volume of commerce affected” is unsettled, which results in significant discretion and flexibility in determining the base fine.

The court next assigns a “culpability score” to a corporate defendant. This reflects the circumstances in the particular case and includes factors such as the company’s criminal history, the role that high-level personnel played in the conspiracy, the company’s efforts to develop an effective compliance programme, and the extent of the company’s cooperation. The culpability score corresponds to a table of minimum and maximum multipliers, which are multiplied by the base fine to determine a range of possible fines. This range is considered advisory, and the final fine set by the court may upwardly or downwardly depart from the suggested range. The DOJ typically recommends a sanction within the Guidelines range, absent significant cooperation or other special circumstances.

The DOJ may recommend a downward departure from the Guidelines range due to a defendant’s significant cooperation. This may apply to defendants who cooperate immediately following the leniency applicant (e.g., the second to report), although this has become less frequent in recent years. The DOJ’s recommendation for sentencing is only advisory, however, and courts retain broad discretion in determining the final fine.

Sentencing may involve penalties beyond a fine. The Division may also recommend a probationary period, potentially involving a court-appointed monitor, particularly if it can argue that a company’s compliance programme is ineffective or that the company continues to employ the culpable employees.

In addition to fines and probation, defendants may be ordered to pay restitution to victims of the conspiracy. Companion criminal statutes, such as those regarding mail or wire fraud, may also provide for further prosecution of defendants with federal contracts, and any company may also risk debarment from future participation in government contracting.

Like penalties for corporate defendants, fines against individuals are based on the volume of affected commerce, with typical individual fines falling between one and five percent of this figure. The Guidelines provide that individual fines should in all cases exceed a $20,000 minimum, although individual sanctions are not multiplied by a culpability score. The volume of affected commerce also guides the court’s analysis for imprisonment of individuals.

In practice, the highest fines recently set for corporate defendants have been based on twice the gain or loss resulting from the conduct. As an example, AU Optronics was sentenced in 2013 (following a 2012 trial) to a $500 million criminal fine based on its participation in a conspiracy to fix prices for LCD panels.

Generally, US courts respect corporate formalities, with the result that the parent company is not presumed liable for the conduct of its subsidiary. However, the actions of the subsidiary may be imputed to the parent in certain situations. The government must indict the parent and the subsidiary and prove at trial that the subsidiary is the “alter ego” of the parent or is the agent of the parent. To impose liability on a parent company for the actions of its subsidiary as an “alter ego,” the DOJ must prove that (1) there is such unity of interest and ownership that separate personalities of entities no longer exist; and (2) the failure to disregard their separate identities would result in fraud or injustice.

To impose liability under the agency theory, the DOJ must show that the (1) parent company intended for the subsidiary to act on its behalf; (2) the subsidiary agreed to act as the parent company’s agency; and (3) the parent company exercised total control over the subsidiary.

Both private actions and class actions are available for infringement of the cartel rules.

Private plaintiffs may sue for violations of the Sherman Act in federal court for treble monetary damages and injunctive relief. Section 4 of the Clayton Act allows a private person to bring a civil suit for any injury that results from an antitrust violation. Private plaintiffs may include individuals, entities such as a corporation, a US state either on behalf of itself or on behalf of its residents, and foreign governments.

As in other areas of law, private parties may bring antitrust claims as a class, but they must satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure. A putative class must meet the standard numerosity, commonality, typicality, and adequacy of representation requirements under Rule 23(a). To recover monetary damages under Rule 23(b)(3), class plaintiffs must also prove: (1) that common questions of law and fact will predominate over any individual questions; and (2) that a class action is superior to other methods for adjudicating the dispute.

Private litigants under Section 4 of the Clayton Act may recover three times the amount of the damages as well as costs and attorney fees, except against certain defined defendants, most notably a leniency applicant or co-operator in a preceding DOJ investigation. The leniency candidate, assuming it satisfies its obligations, is only subject to single damages instead of treble damages in subsequent civil actions. Section 16 of the Clayton Act also allows private suits for injunctive relief. In contrast to Section 4, a party bringing suit under Section 16 does not have to show actual injury to receive an injunction but only that a threat of injury exists.

Appeals may be taken from adverse rulings and final judgments.

In a criminal proceeding, the defendant may appeal a guilty verdict or the sentence imposed after a guilty verdict. The government may only appeal the sentence imposed after a guilty verdict; it may not appeal a defendant’s acquittal.

In a civil proceeding, plaintiffs and defendants have the right to appeal certain adverse rulings that are not final judgments, called interlocutory orders. Federal statute establishes the procedures for taking an interlocutory appeal, which involves seeking permission from both the district court and the Court of Appeals. 28 U.S.C. § 1292. Both parties can take appeals as of right from final judgments of the district court.

The appeal process in antitrust cases is the same as in other federal civil and criminal proceedings.

In a criminal proceeding, a defendant has a right to appeal the verdict if found guilty at trial and may initiate an appeal by filing a notice of appeal within 14 days of the entry of judgment or the filing of the government’s notice of appeal. However, if the defendant is acquitted at trial, the government may not appeal the acquittal or try the defendant again because of the US Constitution’s bar against double jeopardy. However, the government may appeal the court’s sentencing decision within 30 days. If a defendant pleads guilty pursuant to a plea agreement, the defendant typically is considered to have waived the right to appeal for any reason other than ineffective assistance of counsel or prosecutorial misconduct.

In a civil proceeding, either party may appeal a district court’s judgment as of right to the relevant Court of Appeals within 30 days (60 days for the United States, if it is a party). At the appellate level, a losing party may file a petition for a writ of certiorari to ask the US Supreme Court to review the case, but the Court rarely grants writs of certiorari and only does so when at least four justices agree to hear the case.

Korean Fuel Cases. As discussed below in Section 25, the DOJ has increasingly focused on flexing its foreign enforcement powers. One key focus in that area relates to significantly heavier enforcement of bid-rigging conduct related to contracts with U.S. government entities operating in non-U.S. jurisdictions. The first and, to date, most significant enforcement effort under that umbrella is the DOJ’s prosecution of a number of South Korean fuel suppliers in connection with allegations of a conspiracy to rig bids on contracts to supply fuel to U.S. military bases in South Korea.

Since this investigation began in 2018, the DOJ has resolved its allegations against six South Korean companies. Three of the companies have pleaded guilty and agreed to pay criminal fines totalling approximately $82 million and separate civil penalties totalling $154 million. Three additional companies entered civil settlements with the DOJ over the allegations with additional civil penalties totalling approximately $53 million.

DOJ officials noted that these settlements together are the largest settlements ever recovered under Section 4A of the Clayton Act and represent a commitment to use antitrust enforcement tools to hold cartels responsible for “defraud[ing] American taxpayers”.

Broiler Chickens. After intervening to stay discovery in a civil class action alleging a nationwide conspiracy to fix prices for broiler chicken products, the DOJ obtained indictments against 14 individuals and three companies between October 2020 and July 2021 in connection with that alleged conspiracy. In February 2021, the first of those companies, Pilgrim’s Pride Corporation, pled guilty and was sentenced to a criminal fine of $107,923,572. The DOJ took the matter to trial against 10 of the individuals in October 2021, but the trial resulted in a mistrial in December 2021 when the jury could not reach unanimity on whether there was an overarching conspiracy. Days later, the court in the related civil litigation in which the DOJ had intervened approved a settlement for $181 million.

Although the mistrial represented a setback for the DOJ’s enforcement efforts, the aftermath of the mistrial demonstrates the DOJ’s current interest in aggressive prosecution, including at trial. Following the mistrial, the DOJ reaffirmed its determination to see the individuals convicted at trial. The DOJ dismissed charges without prejudice against five of the executives, stating it would strengthen its ability to show a conspiracy between the remaining five individuals when it returned to trial. It also scheduled trials against other companies and individuals alleged to be involved in the conspiracy for July and October 2022.

Procurement Collusion Strike Force. Since forming the Procurement Collusion Strike Force [PCSF] in 2019, the Division has devoted significant resources to the PCSF’s mission to deter and prosecute procurement-related fraud, particularly bid-rigging, price-fixing, and market allocation involving government procurement. In its two years of activity, the PCSF has targeted antitrust conspiracies related to all levels of government procurement, from concrete contractors rigging bids on construction contracts with local school districts to international affairs involving national security.

While the Korean fuel case, discussed above in Section 24, predates the establishment of the PCSF, the DOJ has used it as a prime example of its purpose in founding the PCSF. Within the last year, the DOJ has explicitly expanded the international focus of the PCSF with a new programme called PCSF: Global, which aims to enhance cooperation with foreign competition authorities and “tackle potential collusion in bids for the staggering amount of U.S. funds spent abroad.”

Labour Market Activity. In 2018, the Trump Administration announced that it would begin to criminally prosecute employers who engaged in labour market collusion, and the Biden Administration has continued to move that policy forward. One key development is that the Division has moved to charge non-solicitation (or “no-poach”) agreements and other labour market behaviour such as wage-fixing as per se violations of antitrust law rather than under the rule of reason.

While this development is recent, federal courts have so far proven amenable to this approach. In November 2021, the Eastern District of Texas rejected a motion by the owner of a healthcare staffing agency to dismiss charges that he had conspired to lower wages for certain healthcare employees. In its opinion, the court found that wage-fixing was merely a type of price-fixing, which is the paradigmatic per se violation of the Sherman Act. Subsequently, in January 2022, the District of Colorado rejected a motion by a dialysis provider to dismiss charges that it had entered an agreement with a competitor not to solicit each other’s employees. The court there held that the non-solicitation agreement constituted a horizontal market allocation agreement traditionally classed as a per se violation of the Sherman Act.

Overall, we expect the Division to continue its approach to antitrust enforcement:

• As noted above in Sections 24 and 25 (discussing the Korean fuel cases and PCSF), the Division has increasingly turned its attention to enforcement of cartel conduct not only within the United States but also in situations where foreign conduct impacts U.S. interests, particularly in government contracting.
• As mentioned, one of the biggest recent changes has been to the leniency programme, which now puts additional burdens on applicants for leniency. We expect that this may have an impact on the number of applicants seeking leniency or being granted leniency after applying.
• Moreover, while not related to cartels specifically, DOJ has also stated its intention to pursue monopolisation conduct criminally. This underscores the seriousness of the approach likely to be taken forward generally.