{"id":142530,"date":"2026-05-22T09:13:47","date_gmt":"2026-05-22T09:13:47","guid":{"rendered":"https:\/\/my.legal500.com\/guides\/?post_type=comparative_guide&#038;p=142530"},"modified":"2026-05-22T09:13:47","modified_gmt":"2026-05-22T09:13:47","slug":"united-states-cartels","status":"publish","type":"comparative_guide","link":"https:\/\/my.legal500.com\/guides\/chapter\/united-states-cartels\/","title":{"rendered":"United States: Cartels"},"content":{"rendered":"","protected":false},"template":"","class_list":["post-142530","comparative_guide","type-comparative_guide","status-publish","hentry","guides-cartels","jurisdictions-united-states"],"acf":[],"appp":{"post_list":{"below_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Jones Day<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2019\/03\/JD-Logo_R_Blue-1.jpg\"\/><\/span><\/div>"},"post_detail":{"above_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Jones Day<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2019\/03\/JD-Logo_R_Blue-1.jpg\"\/><\/span><\/div>","below_title":"<span class=\"guide-intro\">This country specific Q&amp;A provides an overview of Cartels laws and regulations applicable in United States<\/span><div class=\"guide-content\"><div class=\"filter\">\r\n\r\n\t\t\t\t<input type=\"text\" placeholder=\"Search questions and answers...\" class=\"filter-container__search-field\">\r\n\t\t\t<\/div>\r\n\r\n\t\t\t\r\n\r\n\r\n\t\t\t<ol class=\"custom-counter\">\r\n\r\n\t\t\t\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is the relevant legislative framework respect of cartel agreements and\/or conduct ?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the United States, both state and federal antitrust laws govern criminal and civil violations. These laws provide for criminal enforcement by government agencies and civil causes of action available to government enforcers, state attorneys general, and private parties.<\/p>\n<p>Enacted in 1890, the Sherman Act forms the foundation of U.S. antitrust law. Section 1 of the Sherman Act prohibits \u201c[e]very contract, combination, in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations.\u201c 15 U.S.C. \u00a7 1.<\/p>\n<p>The Clayton Act (15 U.S.C. \u00a7 15) creates a civil right of action by state and governments and private parties for damages under the Sherman Act. Enforcers of the U.S. antitrust laws include the Department of Justice (DOJ), the Federal Trade Commission (FTC), state attorneys general, and private parties.<\/p>\n<p>While this guide focuses primarily on federal criminal enforcement by the DOJ\u2019s Antitrust Division, it is worth noting that civil enforcement by the DOJ, FTC, state attorneys general and private parties also plays an important role in the broader antitrust landscape. State antitrust enforcement has become more active recently and generally mirrors the federal framework, though some states have enacted statutes with notable distinctions in areas such as indirect purchaser standing and criminal penalties.<\/p>\n<p>Limited exemptions to Sherman Act liability apply to certain industries under various federal statutes and judicial decisions. These include baseball; insurance (McCarran-Ferguson Act); agriculture (Capper-Volstead Act); export trade (Webb-Pomerene Act); and ocean cargo (Shipping Act and Merchant Marine Act); and defense production (Defense Production Act). States and state-supervised entities enjoy immunity under the state action doctrine and the Noerr-Pennington doctrine protects certain First Amendment protected activity, including litigation and lobbying efforts. Additionally, in certain heavily regulated industries (such as federal securities), the implied immunity doctrine may displace antitrust law in favor of the other applicable regulatory regime when certain factors are present.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How is a cartel defined?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The Sherman Act is drafted broadly, and its application remains flexible and adaptable to evolving commercial practices. The Act does not define \u201ccartel\u201d conduct, nor does it specify a necessary number (or type) of participants.<\/p>\n<p>To establish a criminal violation of Section 1 of the Sherman Act, the government must prove the following three elements beyond a reasonable doubt: (1) the charged conspiracy was knowingly formed and was in existence at or about the time alleged; (2) the defendant knowingly joined the conspiracy; and (3) the conduct affected, or was in the flow of, interstate or foreign commerce.<\/p>\n<p>In practice, the Antitrust Division criminally prosecutes \u201chard core\u201d naked agreements between or among competitors \u2013 principally price fixing, bid rigging and market allocation \u2013 as per se violations of Section 1 of the Sherman Act.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">To establish an infringement, does there need to have been an effect on the market?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Certain types of conduct are considered per se unlawful, meaning the conduct itself\u2014typically the agreement to restrain trade\u2014constitutes the violation and no effect on the market need be shown. Per se treatment is applied to \u201chard core\u201d antitrust violations, including horizontal price fixing, bid rigging, and market allocation. The DOJ has taken the position that labor market collusion, i.e., wage-fixing and no-poach agreements, may also be considered per se unlawful. The DOJ typically prosecutes per se violations criminally.<\/p>\n<p>Other types of conduct are analyzed under the more flexible \u201crule of reason\u201d standard, which balances the pro-competitive justifications against harmful effects. These include information exchange, vertical price fixing, vertical non-price restraints, and exclusive dealing. The rule of reason examines whether the challenged conduct imposes an unreasonable restraint on trade under the circumstances. Proof of an effect on the market is required for cases analyzed under the rule of reason.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does the law apply to conduct that occurs outside the jurisdiction?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The U.S. government has the authority to apply antitrust laws to conduct occurring outside the United States under the Foreign Trade Antitrust Improvements Act (FTAIA). 15 U.S.C. \u00a7 6a. The FTAIA limits the Sherman Act\u2019s extraterritorial application to conduct that has a \u201cdirect, substantial and reasonably foreseeable\u201d effect on U.S. commerce, or to conduct involving import trade or import commerce.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Which authorities can investigate cartels?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The DOJ\u2019s Antitrust Division, the FTC, the U.S. Attorneys\u2019 Offices, state attorneys general, and more recently, local District Attorney offices may all investigate cartels (often with the assistance of other law enforcement agencies). The DOJ\u2019s Antitrust Division has exclusive jurisdiction over federal criminal cartel enforcement. Both the DOJ Antitrust Division and the FTC can enforce the antitrust laws civilly. With approval from the DOJ Antitrust Division, any U.S. Attorney\u2019s Office may also investigate and prosecute civil and criminal antitrust violations. Further, state attorneys general may also investigate and bring civil or criminal charges under applicable state competition statutes.<\/p>\n<p>Additionally, the DOJ\u2019s Procurement Collusion Strike Force (PCSF) investigates and criminally prosecutes violations related to public procurement, grant, and program funding. See, https:\/\/www.justice.gov\/atr\/procurement-collusion-strike-force. The PCSF is composed of the DOJ\u2019s Antitrust Division, multiple U.S. Attorneys\u2019 Offices, the Federal Bureau of Investigation (FBI), and the Inspectors General for multiple federal agencies.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How do authorities typically learn of the existence of a potential cartel and to what extent do they have discretion over the cases that they open?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The U.S. authorities may learn of a potential cartel through various means, including citizen complaints, law enforcement referrals, cooperation with international enforcers and domestic agencies, in-house investigators, private civil litigation, and self-reporting by organizations or individuals under the DOJ\u2019s Leniency Program (described in Section 3). <em>See,<\/em> https:\/\/www.justice.gov\/atr\/leniency-policy. Authorities may also uncover cartels through FTC\/DOJ civil merger or conduct investigations accompanied by subpoenas or civil investigative demands (\u201cCID\u201d), which seek documents, information, or testimony. In addition, cartels may come to light through the disclosure of materials obtained during regulatory processes. For example, companies are required to provide certain documents under the Hart-Scott-Rodino Act when reporting proposed transactions that meet the applicable thresholds to the DOJ and FTC. Proposed transactions may be subject to extensive agency review, which require companies to produce substantial materials that may reveal the existence of a cartel. Parties to a proposed merger or acquisition may take advantage of a safe harbour policy for voluntary self-disclosures made in connection with transactions. <em>See, DOJ Justice Manual <\/em>9-28.900; 7-3.300, https:\/\/www.justice.gov\/jm\/jm-9-28000-principles-federal-prosecution-business-organizations#9-28.900.<\/p>\n<p>In July 2025, DOJ added a dedicated Whistleblower Rewards Program to its enforcement detection toolkit&#8211;. This program stands alongside other established channels as a means of generating investigative leads. The Program is designed to incentivize individuals with knowledge of criminal antitrust violations to come forward by offering financial reward in exchange for information that leads to successful enforcement outcomes. <em>See,<\/em> U.S. Dep\u2019t of Just., Antitrust Div., Justice Department\u2019s Antitrust Division Announces Whistleblower Reward Program, <a href=\"http:\/\/www.justice.gov\/opa\/pr\/justice-departments-antitrust-division-announces-whistleblower-rewards-program\">http:\/\/www.justice.gov\/opa\/pr\/justice-departments-antitrust-division-announces-whistleblower-rewards-program<\/a>.<\/p>\n<p>The Whistleblower Rewards Program complements, rather than replaces, the Antitrust Division\u2019s other established sources of investigations. The Leniency Program, for example, incentivizes both corporate and individual participants to self-report their conduct by applying for leniency, potentially resulting in immunity from prosecution for the reported conduct as well as a limiting the amount of civil damage that may be imposed upon the company (specifically, by eliminating the threat of treble damages)<\/p>\n<p>Under the Whistleblower Rewards Program, rewards are offered at the DOJ\u2019s discretion to whistleblowers if their information leads to criminal conviction and fines of at least $1 million, or an equivalent recovery from a deferred prosecution or non-prosecution agreement. The financial reward is set at a minimum of 15% and a maximum of 30% of the recovered criminal fine or penalty. In situations involving multiple whistleblowers, the total share awarded will not exceed 30%.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the key steps in a cartel investigation?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The DOJ can open a criminal antitrust investigation as either a preliminary inquiry or a grand jury investigation.<\/p>\n<p>When determining whether to open a preliminary inquiry, the Antitrust Division will consider the following four factors: (1) if there is reason to believe an antitrust violation may have been committed; (2) the amount of commerce affected; (3) if the investigation will duplicate or interfere with other efforts of the Division or other enforcers (i.e., the FTC, a U.S. Attorney, or a state AG); and (4) if allocating resources to the matter fits within the needs and priorities of the Division. The Division can request a grand jury investigation if the preliminary inquiry results in additional evidence of an antitrust violation.<\/p>\n<p>In certain instances, the Division may begin with a grand jury investigation, forgoing the preliminary inquiry. When determining whether to open a grand jury investigation, the Division considers the factors listed above as well as whether the Division would proceed with a criminal prosecution in the event sufficient evidence confirming the violation is developed. See, DOJ Justice Manual 7-3.100, https:\/\/www.justice.gov\/jm\/jm-7-3000-organization-division#7-3.100.<\/p>\n<p>The statute of limitations for criminal offences under the Sherman Act is five years, and the civil statute of limitations is four years. 18 U.S.C. \u00a7 3282(a).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the key investigative powers that are available to the relevant authorities?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Grand juries can issue subpoenas for documentary or testimonial evidence. Witnesses who refuse to testify in response to a subpoena or to provide responsive documents may be held in contempt and subject to fines, imprisonment, and obstruction of justice charges.<\/p>\n<p>With a search warrant\u2014issued by a judge upon a showing of probable cause that a crime has been committed and evidence of that crime exists at the place to be searched\u2014DOJ may conduct unannounced searches of businesses and residences and seize documents or other evidence. DOJ may also pay surprise visits to individuals or organizations and attempt to conduct informal witness interviews. Under the Electronic Communications Privacy Act, DOJ can obtain search warrants for the contents of wire or electronic communications directly from communication service providers.<\/p>\n<p>The Division has access to a number of other additional investigative tools. Covert methods include consensual recordings by cooperators, pen register\/trap and trace devices (18 U.S.C. \u00a7 3123), and wiretaps under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The Division has used Title III wiretaps in several major cartel investigations, including the lysine and marine hose conspiracies and recently, during an investigation involving firefighting services in the Western United States.<\/p>\n<p>The Division also employs border watches, which notify the Division if a foreign witness or defendant enters the United States, giving it the opportunity to interview witnesses or serve compulsory process. Should a person of interest enter the United States, they may be subject to a border search that allows U.S. Customs and Border agents to conduct a warrantless inspection of persons, luggage, or electronic devices (such as laptops and mobile telephones).<\/p>\n<p>In a civil investigation, the antitrust agencies may issue a CID, seeking documents and information or testimony of individuals. In both criminal and civil investigations, the DOJ may also ask the parties to produce any discovery material they have produced to private parties in parallel antitrust litigation.<\/p>\n<p>Interviews are often conducted in person but may also occur remotely. Parties seeking leniency under the Leniency Program may submit to an interview voluntarily, rather than through a compulsory process.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">On what grounds can legal privilege be invoked to withhold the production of certain documents in the context of a request by the relevant authorities?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The two main legal privileges invoked by parties include attorney-client privilege and the work-product doctrine.<\/p>\n<p>Attorney-client privilege protects confidential communications between a client and counsel for the purpose of obtaining or relaying legal advice. In the corporate context, this privilege extends to communications between company employees and the corporation\u2019s lawyers \u2013 whether in-house or outside counsel\u2014where the communication is made at the direction of management for the purpose of obtaining legal advice.<\/p>\n<p>The work-product doctrine protects documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative from disclosure. Opinion work product\u2014reflecting an attorney\u2019s mental impressions, conclusions, or legal theories\u2014receives heightened protection and is virtually immune from compelled disclosure. (So-called \u201cfact\u201d work product, in which the lawyer is merely collecting or reporting facts that would be otherwise subject to discovery, may be more vulnerable to discovery).<\/p>\n<p>Under the joint-defense privilege (sometimes known as common interest privilege), parties may also assert attorney-client privilege to protect privileged statements made to an attorney for another party pursuant to the parties\u2019 common defense interests.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the conditions for a granting of full immunity? What evidence does the applicant need to provide? Is a formal admission required?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The DOJ Antitrust Division\u2019s Leniency Policy allows organizations or individuals to self-report involvement in a criminal antitrust conspiracy. See, https:\/\/www.justice.gov\/atr\/leniency-policy. If the applicant meets the policy\u2019s criteria, then the Division will not bring criminal charges against the applicant for the reported illegal activity. The Leniency Policy provides for two types of corporate lenience: Type A and Type B.<\/p>\n<p>Type A leniency is available before the Antitrust Division has opened an investigation, provided the Division has not yet received information about the reported illegal activity from another source. The applicant must make its report \u201cwith candor and completeness,\u201d and the confession of wrongdoing must be a corporate act &#8212; not isolated confessions of individual directors, officers or employees. The applicant must also provide \u201ctimely, truthful, continuing, and complete cooperation\u201d during the Division\u2019s investigation and use best efforts to make restitution, remediate harm, and improve its compliance program. Finally, the applicant must not have coerced another party to participate in the illegal activity or have been the leader or originator of the activity. Where Type A leniency is granted, the corporation\u2019s current officers, directors and employees receive amnesty and will not be criminally charged. See, DOJ Justice Manual (7-3.310), https:\/\/www.justice.gov\/jm\/jm-7-3000-organization-division#7-3.310.<\/p>\n<p>Type B corporate leniency is available after the Division has opened an investigation provided the Division does not yet have evidence likely to result in a sustainable conviction against the applicant. Type B applicants must satisfy the same substantive criteria as Type A applicants including prompt reporting, cooperation, restitution, and remediation. In addition, the applicant must be the first to qualify for leniency, and the Division must determine that granting leniency would not be unfair to others. See, DOJ Justice Manual (7-3.320), https:\/\/www.justice.gov\/jm\/jm-7-3000-organization-division#7-3.320. Under Type B leniency, non-prosecution protection for current directors, officers, and employees is not automatic, but instead is granted at the Division\u2019s sole discretion.<\/p>\n<p>In both Type A and Type B applications, prompt reporting upon discovery of the illegal activity is required. Discovery occurs \u201cat the earliest date on which an authoritative representative of the applicant for legal matters\u2014the board of directors, its counsel (either inside or outside), or a compliance officer\u2014was first informed of the conduct at issue.\u201d See, DOJ Frequently Asked Questions about the Antitrust Division\u2019s Leniency Program, https:\/\/www.justice.gov\/atr\/page\/file\/1490311\/dl?inline=.<\/p>\n<p>Individual leniency is available where the Division has not yet received information about the illegal activity from any other source and where the individual reports with candor and completeness and cooperates throughout the investigation, and the individual is not the leader of the illegal activity nor did they coerce another party to participate.<\/p>\n<p>Leniency recipients may also benefit from reduced civil liability under the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (\u201cACPERA\u201d), which limits a leniency recipient\u2019s civil litigation exposure to single (rather than treble) damages in private state or federal antitrust suits provided the recipient cooperates with the Division\u2019s criminal investigation.<\/p>\n<p>Beyond the Antitrust Division, the DOJ has expanded its menu of voluntary self-disclosure policies. Over the past three years, the Department has announced that every DOJ component will adopt a self-disclosure policy similar to the Antitrust Division\u2019s Leniency Policy\u2014under which companies that voluntarily self-disclose criminal conduct, cooperate, and remediate misconduct will avoid a guilty plea. See, https:\/\/www.justice.gov\/corporate-crime\/voluntary-self-disclosure-and-monitor-selection-policies. The Department has also announced a safe harbor policy for voluntary self-disclosures made in connection with mergers and acquisitions. See, DOJ Justice Manual (9-28.900), https:\/\/www.justice.gov\/jm\/jm-9-28000-principles-federal-prosecution-business-organizations#9-28.900. For the Antitrust Division, specifically, the corporate Leniency Policy serves as its voluntary self-disclosure policy, and qualifying M&amp;A safe harbor (referenced in Section 2.2 above) first requires meeting all relevant requirements of the Leniency Policy. See, DOJ Justice Manual (7-3.300), https:\/\/www.justice.gov\/jm\/jm-7-3000-organization-division#7-3.300.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What level of leniency, if any, is available to subsequent applicants and what are the eligibility conditions?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under DOJ\u2019s policy, leniency is only available to the first party to self-report and qualify\u2014subsequent applicants are not eligible for full leniency, though DOJ will consider the degree of their self-reporting and cooperation when the Division assesses the appropriate disposition and as a mitigating factor at sentencing.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are markers available and, if so, in what circumstances?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes. Markers are available to a party seeking leniency under the Antitrust Division\u2019s Leniency Program. A marker holds the applicant\u2019s place in line while both sides work toward a formal leniency agreement. DOJ will only grant one marker per conspiracy at any given time, in other words, once a marker is granted, no other company can obtain a marker for the same conduct until the first market expires or its withdrawn.<\/p>\n<p>An applicant seeking a marker must satisfy three threshold requirements: (1) report the discovery of 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 relevant industry, product, or service involved (the identification must be specific enough that the Division can determine whether leniency is still available); and (3) reveal the applicant\u2019s identity.<\/p>\n<p>Markers are granted for only a limited amount of time, generally between 30 and 45 days while the investigation is conducted, but they may be extended for additional periods if the applicant demonstrates a good-faith effort to complete its application promptly.<\/p>\n<p>Because only one applicant may receive a marker per conspiracy, subsequent applicants can lose the race for a marker by a matter of hours, resulting in significant fines and prosecution.<\/p>\n<p>Following the marker period and subsequent updates from the leniency applicant, the Division may \u201cperfect\u201d the marker and issue a conditional leniency letter. Conditional leniency letters represent an initial, conditional agreement that the applicant appears to qualify for leniency, conditioned on further cooperations.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is required of immunity\/leniency applicants in terms of ongoing cooperation with the relevant authorities?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Applicants must provide \u201ctimely, truthful, continuing, and complete cooperation that advances the Antitrust Division\u2019s investigation\u201d throughout the leniency process\u2014from the initial marker through the issuance of the final leniency letter. This obligation has real substance. In practical terms, corporate applicants must share with the Division every relevant fact in their possession, preserve and produce documents as requested by Division prosecutors (wherever those materials are located), arrange for translations when needed, secure the cooperation of both current former employees, and make those employees available for interviews and testimony,<\/p>\n<p>Confidentiality requirements may vary. The DOJ may request that applicants refrain from providing information regarding its investigation to others, including other potential witnesses within the leniency applicant\u2019s organization. Information regarding the leniency applicant may be discoverable in civil and criminal proceedings. The DOJ may intervene in parallel civil cases and seek to stay discovery pending its ongoing criminal investigation.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does the grant of immunity\/leniency extend to immunity from criminal prosecution (if any) for current\/former employees and directors?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under Type A leniency, current directors, officers, and employees are automatically granted immunity from criminal charges so long as they cooperate throughout the Division\u2019s investigation.<\/p>\n<p>Under Type B leniency, such protection is not guaranteed. To be covered by the non-prosecution protection of the corporate applicant, individuals must \u201cadmit their wrongdoing with candor and completeness and provide timely, truthful, continuing, and complete cooperation\u201d which advances the investigation.<\/p>\n<p>While the Division is not required to extend immunity to former employees, officers or directors, applicants typically negotiate broader coverage for former associates. Often these individuals may also seek a separate non-prosecution agreement.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does the investigating authority have the ability to enter into a settlement agreement or plea bargain and, if so, what is the process for doing so?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>DOJ has broad authority to resolve criminal antitrust matters short of trial through several mechanisms, including plea agreements, deferred prosecution agreements (DPAs), and non-prosecution agreements (NPAs), among others.<\/p>\n<p>Under a plea agreement, the party pleads guilty to the violation and agrees to fully cooperate with the investigation and any subsequent enforcement (such as criminal trials of co-conspirators). In exchange, the DOJ may recommend a reduced sentence (referred to as a \u201cdownward departure\u201d). Most plea agreements include language explaining that such recommendation is at the discretion of the DOJ. Though also discretionary, federal district courts typically accept the recommendation of the DOJ so long as the recommendation is reasonable.<\/p>\n<p>Under a DPA, DOJ files criminal charges but agrees to defer prosecution for a specified period while the defendant satisfies certain conditions, such as cooperation, remediation, and payment of a monetary penalty. If the conditions are met, the charges are dismissed; if not, the Division may proceed to prosecution.<\/p>\n<p>Both plea agreements and deferred prosecution agreements will typically include an agreed-upon statement of facts that outlines the criminal conduct and the DOJ\u2019s reasons for entering into the agreement. Court approval is required for all plea agreements and DPAs.<\/p>\n<p>Under an NPA, the Division agrees not to file charges at all, provided the defendant satisfies specified conditions. No court approval is required because no charges are filed\u2014the agreement operates as an exercise of prosecutorial discretion between the Division and the defendant.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the key pros and cons for a party that is considering entering into a settlement with the relevant authority?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>When considering whether to enter into a settlement, parties should weigh the strength of DOJ\u2019s evidence and the case against them, along with other relevant Principles of Federal Prosecution and Principles of Federal Prosecution of Business Organizations. See, DOJ Manual (9-27.000-9.28.000), https:\/\/www.justice.gov\/jm\/jm-9-28000-principles-federal-prosecution-business-organizations.<\/p>\n<p>A party considering whether to enter into a plea agreement, DPA, or NPA with the Antitrust Division\u2014or more broadly, whether to seek leniency\u2014must weigh a number of competing considerations. The analysis will differ depending on whether the party is the first to report (and thus eligible for leniency) or is a subsequent cooperator negotiating a plea agreement, but many of the core trade-offs apply across both scenarios.<\/p>\n<p>Possible Advantages: The most significant advantage of settlement is the potential for a substantially reduced fine or a reduced sentence. Cooperating defendants may receive downward departures for substantial assistance and acceptance of responsibility. Importantly a settlement also eliminates the risk of uncertainty of a trial, the potential for additional charges, and substantially higher fines under the Alternative Fine Statute.<\/p>\n<p>Possible Disadvantages: The most significant disadvantage of entering into a plea agreement is the requirement to admit to a criminal violation. A guilty plea constitutes a criminal conviction that becomes part of the company\u2019s or individual\u2019s permanent record. For a corporation, a criminal conviction can trigger collateral consequences such as debarment from federal contracts, loss of professional licenses, or regulatory sanctions in other jurisdictions. It can also cause disclosure obligations to regulatory agencies and cause reputational harm. The conviction may also be used as prima facie evidence of the violation in follow-on civil damages actions under Section 5(a) of the Clayton Act (15 U.S.C. \u00a7 16(a)), significantly strengthening plaintiffs\u2019 cases.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is the nature and extent of any cooperation with other investigating authorities, including from other jurisdictions?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The International Antitrust Enforcement Assistance Act (\u201cIAEAA\u201d) allows U.S. antitrust agencies to enter into antitrust-specific mutual assistance agreements with foreign jurisdictions and provide evidence to assist foreign authorities investigating and enforcing antitrust laws. See, 15 U.S.C. \u00a7\u00a7 6201\u20136212.<\/p>\n<p>The DOJ\u2019s International Section collaborates with other jurisdictions on international cartel investigations, as well as merger and civil enforcement matters which may entail global coordination and joint dawn-raid efforts. Similarly, the FTC\u2019s Office of International Affairs works with foreign competition authorities and international organizations to investigate deceptive and anti-competitive practices affecting U.S. consumers. The U.S. also has Treaties on Mutual Legal Assistance in Criminal Matters (MLATs) that enable authorities to obtain evidence, information, and testimony abroad in admissible forms in foreign jurisdictions. Within the U.S., the PCSF, (addressed in Section 2.1 above) is a joint law enforcement effort of multiple agencies and authorities, tasked with detecting, investigating and prosecuting antitrust and related crimes. The PCSF operates both domestically and globally, with its first international prosecution dating back to 2021.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the potential civil and criminal sanctions if cartel activity is established?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under the Sherman Act, criminal penalties for companies include fines up to $100 million per violation or twice the amount of the co-conspirators\u2019 gain or the victims\u2019 loss from the violation, if proven beyond a reasonable doubt.<\/p>\n<p>Individuals face criminal penalties of fines up to $1 million and ten years in prison per violation. The DOJ has emphasized in recent years that individual accountability is its highest priority, and the strongest deterrent to antitrust violations. See, DOJ Justice Manual 7-3.420, https:\/\/www.justice.gov\/jm\/jm-7-3000-organization-division#7-3.420.<\/p>\n<p>In the civil context, DOJ may seek injunctive relief, and, to the extent the government is a victim, may pursue civil damages under Clayton Act \u00a7 4(a). 15 U.S.C. \u00a7 15(a).<\/p>\n<p>Private civil litigants can seek treble damages.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What factors are taken into account when the fine is set?  Does the existence of an effective corporate compliance strategy impact the determination of the fine? Please provide some examples of recent fines?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>For federal violations, the U.S. Sentencing Guidelines set out applicable factors for assessing criminal sentences, including fines. See, U.S.S.G. \u00a7 2R1.1, https:\/\/www.ussc.gov\/guidelines\/guidelines-manual\/2024\/2r11. The sentencing guidelines set a base offense level\u2014 starting with a base fine of 20 percent of the volume of affected commerce\u2014which is then combined with a culpability score.<\/p>\n<p>The culpability score takes into account criminal history, roles of high-level personnel in the conspiracy, compliance efforts, and the extent of cooperation, among other factors. A minimum and maximum multiplier is then applied to the base fine (depending on the culpability score) to identify a fine range under the Sentencing Guidelines. The DOJ may recommend a downward departure from that range based on a range of mitigating factors, including the party\u2019s cooperation with the investigation and enforcement action.<\/p>\n<p>As part of its model for incentivizing corporate compliance, DOJ prosecutors are directed to consider compliance efforts when making charging decisions, and indeed, there is an opportunity for companies to advocate for a compliance-driven deferred prosecution agreement rather than a guilty plea and criminal conviction. See, DOJ, Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (Nov. 2024), https:\/\/www.justice.gov\/atr\/media\/1376686\/dl?inline=. Since the DOJ announced this model in 2019, it has not entered into any such deferred prosecution agreement based on a company\u2019s compliance.<\/p>\n<p>On the civil side, an effective corporate compliance policy, or the agreement to implement one, may be a negotiating factor for companies attempting to reach a settlement with the agencies, including whether it is appropriate for DOJ to recommend the imposition of a compliance monitor.<\/p>\n<p>In addition to fines and incarceration (for individuals), a sentence may also include restitution and a probationary period.<\/p>\n<p>The highest fines for recent Sherman Act violations include $925M and $650M fines for Citicorp and Barclays PLC, respectively, in 2017 involving their convictions for foreign currency exchange collusion.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are parent companies presumed to be jointly and severally liable with an infringing subsidiary?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In general, parent companies are not liable for the conduct of subsidiaries. Subsidiary conduct may be imputed to the parent corporation where the subsidiary is the agent or alter ego of the parent. Imposing liability on the parent corporation under the alter ego theory requires that the DOJ prove that there is both unity of interest and ownership such that separate personalities of the entities no longer exist and the failure to disregard their separate identities would result in fraud or injustice. Under the agency theory, the DOJ must prove the parent company intended the subsidiary to act on its behalf, the subsidiary agreed to act on the parent\u2019s behalf, and the parent exercised total control over the subsidiary.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are private actions and\/or class actions available for infringement of the cartel rules?  Are opt out class actions available?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Private civil actions are available under U.S. laws for violation of the federal antitrust statutes, including cartel conduct such as price-fixing, bid rigging, and market allocations.<\/p>\n<p>Section 4 of the Clayton Act (15 U.S.C. \u00a7 15) creates a private right of action for injuries resulting from antitrust violations. Parties may sue for treble monetary damages and injunctive relief. This private right of action exists independently of, and in parallel to, any criminal prosecution by DOJ. The Division monitors private antitrust claims to determine whether a government investigation is appropriate, and private litigation has served as a source of investigative leads for the Division.<\/p>\n<p>Class actions are also available and are, in practice, the predominant vehicle for private antitrust enforcement in the United States. Following public disclosure of a cartel investigation\u2014whether through indictments, guilty pleas, or news reports, it is common for plaintiffs\u2019 counsel to file class action lawsuits on behalf of direct and indirect purchasers who were allegedly harmed by the anticompetitive conduct.<\/p>\n<p>The follow-on class actions are typically brought in federal court under Rule 23 of the Federal Rules of Civil Procedure and may involve classes comprising thousands or even millions of purchasers. Parties seeking to bring class action claims in U.S. federal court must satisfy Rule 23\u2019s numerosity, commonality, typicality and adequacy of representation requirements. They must also meet additional requirements, such as showing that common questions of law and fact will predominate and that a class action is superior to other available methods for fairly and efficiently adjudicating the matter.<\/p>\n<p>Any putative class member may exercise their right to file their own suit and\/or exclude themselves from the class under Federal Rule of Civil Procedure 23(b)(3). These actions are intended to preserve their right to control litigation strategy, seek higher damage amounts, and may be appropriate if the individual or entity believes it has suffered unique or significant harm that its own lawyer will more effectively pursue.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What type of damages can be recovered by claimants and how are they quantified?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Private parties may recover treble damages and may be entitled to costs and attorneys\u2019 fees. As noted in Section 3.1 above, Defendants who have received leniency DOJ in related investigation are entitled to have their damages limited to single damages in follow-on civil suits. Private parties may also sue for injunctive relief against ongoing or threatened conduct.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is the limitation period for bringing a claim?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>A private action for damages under the Clayton Act is generally governed by a four-year federal statute of limitations from the date when the cause of action accrued. Clayton Act \u00a7 4B (15 U.S.C. \u00a7 15b). However, the statute can be tolled if defendants fraudulently conceal their conduct with an intent to deceive the alleged victims<\/p>\n<p>Separately, the Clayton Act contains an express statutory tolling tied to government enforcement actions. Where the United States institutes civil or criminal antitrust proceedings, the running of the statute of limitations is suspended during the pendency of government proceedings and for one year thereafter. Clayton Act \u00a7 5(i) (15 U.S.C. \u00a7 16(i)).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">On what grounds can a decision of the relevant authority be appealed?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In federal criminal matters, the defendant may appeal a guilty verdict. The government, however, may not appeal an acquittal and is barred from retrying a defendant under the Double Jeopardy Clause of the U.S. Constitution. Generally speaking, either party may appeal the sentence imposed, including the amount of any fine.<\/p>\n<p>In federal civil proceedings, parties may appeal final orders to the applicable circuit court as a matter of right. In limited instances, parties may also seek review of non-final judgments through interlocutory appeals, which require the permission of both the district and the circuit court.<\/p>\n<p>For criminal and civil matters arising under state law, appellate rights vary by jurisdiction and are governed by each state\u2019s appellate and local procedural rules. The constitutional prohibition on appealing acquittals applies to state governments, which are barred from pursuing such appeals under the Double Jeopardy Clause.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is the process for filing an appeal?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Different appeals rules apply for criminal versus civil proceedings.<\/p>\n<p>For federal criminal matters, a defendant may appeal a guilty verdict by right within 14 days of either the entry of judgment or the filing of a notice of appeal by the United States. An appeal by the United States must be filed within 30 days after entry of judgment or within 30 days after filing of a notice of appeal by the defendant. The district court may extend the time for appeal for good cause. Guilty pleas will typically include waiver of the right to appeal for reasons other than ineffective assistance of counsel or prosecutorial misconduct.<\/p>\n<p>In civil matters, either party may appeal as a matter of right. The timing may vary depending on whether the government is a party (extending the deadline from 30 to 60 days). Subsequently, a party may appeal an adverse appellate decision to the U.S. Supreme Court by petitioning for writ of certiorari which the U.S. Supreme Court has discretion to grant or deny.<\/p>\n<p>For non-federal civil and criminal matters, the process will vary by state and will be addressed by state appellate and local procedural rules.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Practitioner points specific to the jurisdiction<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>(i)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <u>Recent Notable cartel cases<\/u>:<\/p>\n<p>(a)\u00a0\u00a0\u00a0\u00a0\u00a0 <em>U.S. v. EBLOCK Corporation<\/em>:\u00a0 The Division&#8217;s commitment to its new Whistleblower Rewards Program was underscored on January 29, 2026, when it announced the first-ever whistleblower reward \u2014 a $1 million payment representing approximately 30% of the $3.28 million criminal fine imposed on EBLOCK Corporation, an online used-vehicle auction platform. <em>See,<\/em> U.S. Dep\u2019t of Just., Antitrust Division and U.S. Postal Service Make First-Ever Whistleblower Payment: $1M Awarded for Reporting Antitrust Crime (Jan. 29, 2026), https:\/\/www.justice.gov\/opa\/pr\/antitrust-division-and-us-postal-service-award-first-ever-1m-payment-whistleblower-reporting. The whistleblower&#8217;s information led to the identification and dismantlement of a bid-rigging conspiracy involving &#8220;shill bidding&#8221; that artificially inflated used-car prices, affecting $16 million in used-car sales. The matter was resolved through a deferred prosecution agreement in which EBLOCK agreed to pay the criminal fine, implement compliance program enhancements, and cooperate with ongoing investigation.<\/p>\n<p>(b)\u00a0\u00a0\u00a0\u00a0\u00a0 <em>United States v. Lopez<\/em>. In April 2025, a jury convicted the defendant in <em>United States v. Lopez<\/em>, No. 2:23-cr-00055-CDS-DJA (D. Nev. Jan. 21, 2025), on all counts in a criminal wage-fixing and fraud prosecution\u2014a landmark result in the DOJ\u2019s long-running effort to establish criminal liability for labor-market antitrust violations. The court sentenced Lopez to 40 months in custody and ordered him to pay $550,000 in criminal fines. Lopez was also required to pay $2,496,101 in criminal restitution to the defrauded purchaser of his home healthcare company and to forfeit $10,459,000 from the fraudulent sale of that company. The conviction and sentence represent a significant milestone, particularly given the DOJ\u2019s earlier difficulties in securing guilty verdicts in labor-market cases.<\/p>\n<p>(c)\u00a0\u00a0\u00a0\u00a0\u00a0 <em>U.S. v. Brewbaker<\/em>: The Fourth Circuit\u2019s 2023 decision in <em>U.S. v. Brewbaker<\/em> continues to cast a long shadow and has caused the Division to adjust its enforcement strategies and forego Sherman Act cases in favor of fraud or otherwise avoid bringing Sherman Act cases in the Fourth Circuit. <em>Brewbaker <\/em>challenged the application of <em>per se<\/em> analysis to bid-rigging allegations where the conspirators had a dual-distribution relationship. Because of this vertical relationship, the Fourth Circuit held the indictment did not allege a <em>per se<\/em> violation and should have been dismissed. On petition for rehearing, the DOJ argued that the decision \u201cjeopardises\u201d the department\u2019s ability to prosecute cartels because it limits <em>per se<\/em> treatment to \u201cpurely horizontal\u201d restraints between \u201centities who are only related as competitors.\u201d The DOJ\u2019s request was denied in February 2024 and the Supreme Court declined to review the case in November 2024, despite an appeal from the Division It is not yet known whether courts in other circuits will follow this decision.<\/p>\n<p>(ii)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <u>Key Recent Trends<\/u>:<\/p>\n<p>(a)\u00a0\u00a0\u00a0\u00a0\u00a0 <u>Individual Accountability Still a Driving Focus<\/u>: Holding individuals accountable for corporate misconduct has long been, and remains, a central priority for both the Antitrust Division and DOJ more broadly.<\/p>\n<p>In 2025, the Antitrust Division obtained 37 corporate and individual convictions and filed 24% more criminal cases than the prior year, initiating nearly 100 new criminal investigations. Importantly, the total number of defendants sentenced to prison more than doubled compared to 2024, and the total number of prison days imposed increased by more than 1,200% over the same period. These figures suggest a renewed emphasis on incarceration as an enforcement tool, even as broader trends have moved in the opposite direction. Average prison sentences have declined over the past two decades, and changes to the sentencing guidelines have made jail time for first offenders less likely. Nevertheless, the Division\u2019s 2025 enforcement statistics indicate that individual accountability remains at the forefront of its criminal enforcement agenda.<\/p>\n<p>(b)\u00a0\u00a0\u00a0\u00a0\u00a0 <u>Procurement Collusion Remains a Priority<\/u>: The Procurement Collusion Strike Force (PCSF) which targets bid rigging and fraud in government contracts remains a core focus of the Division accounting for nearly 50% of the Division\u2019s open investigations.\u00a0 We expect this trend to continue even as the Department stands up its newly created National Fraud Enforcement Division whose primary mission is to investigate, prosecute, and remedy fraud affecting the federal government, federally funded programs, taxpayer dollars, and private citizens.<\/p>\n<p>(iii)\u00a0\u00a0\u00a0\u00a0\u00a0 <u>Key Expected Developments over the Next 12 Months<\/u>:<\/p>\n<p>(a)\u00a0\u00a0\u00a0\u00a0\u00a0 <u>Increased Whistleblower Activity<\/u>: The most significant development in U.S. criminal antitrust enforcement over the past year has been the operationalization of the DOJ&#8217;s Antitrust Whistleblower Rewards Program. <em>See,<\/em> https:\/\/www.justice.gov\/atr\/whistleblower-rewards. The program represents the first time in U.S. antitrust enforcement history that the government has established a monetary incentive structure for individuals to report criminal antitrust conduct.<\/p>\n<p>According to DOJ, the program&#8217;s impact on case generation has been significant; within six months of the announcement DOJ made its first payout. Senior DOJ officials described the response as a &#8220;frenzy of people coming forward seeking to qualify under our whistleblower program,&#8221; stating that the program has had a &#8220;massive effect on case generation&#8221; and that \u201c[i]t&#8217;s becoming a rarity in which our case does not include a whistleblower.&#8221; For DOJ, the Program has been a success, &#8220;creating exactly what we intended: a new pipeline of leads from individuals with firsthand knowledge of criminal antitrust conduct that often occurs in secret.&#8221; \u00a0The Division says it is now receiving whistleblower reports \u201con a near daily basis,\u201d reviewed by \u201ca close tight-knit group of relatively senior, very experienced people\u201d with the agency.<\/p>\n<p>Perhaps the most consequential strategic implication of the Program is its effect on the dynamics of the Antitrust Division&#8217;s longstanding Corporate Leniency Policy. Senior officials have explicitly said the Whistleblower Program has compressed the window for corporate self-reporting decisions. As the Division warned in its inaugural press release: &#8220;The first company in an antitrust cartel that reports its collusion to the Antitrust Division might receive Leniency \u2014 but the race is faster now, because employees and their attorneys are incentivized to blow the whistle and beat their companies to the Division&#8217;s doorstep.&#8221; Indeed, DOJ has created &#8220;another lane in the leniency race: insider versus company.&#8221; For companies and their counsel, &#8220;slow internal deliberation is now riskier than it used to be. Delay can cost leniency opportunities.&#8221;<\/p>\n<p>(b)\u00a0\u00a0\u00a0\u00a0\u00a0 <u>Information Sharing<\/u>: DOJ\u2019s enforcement posture on information sharing has undergone a seismic shift in recent years, and the next 12 months will likely be a defining period for the contours of criminal liability in this space. Several concurrent developments\u2014pending litigation, new regulatory guidance, and expanding legal theories of liability are converging to reshape the cartel enforcement landscape. The Division has made clear through a series of Statements of Interest filed in various private party litigations that it views standalone information sharing\u2014without proof of an underlying agreement to fix prices\u2014as capable of constituting its own violation of Section 1 of the Sherman Act.<\/p>\n<p>(c)\u00a0\u00a0\u00a0\u00a0\u00a0 <u>Expected Agency Collaboration Guidance<\/u>: In February 2026, the DOJ and FTC launched a joint inquiry to develop new competitor collaboration guidance. This follows the December 2024 joint withdrawal of the Competitor Collaboration Guidelines, which the agencies characterized as relying on \u201coutdated analytical methods\u201d that did not account for advances in technology. <em>See,<\/em> U.S. Dep\u2019t of Just. &amp; Fed. Trade Comm\u2019n, Antitrust Guidelines for Collaborations Among Competitors (withdrawn Dec. 2024), https:\/\/www.justice.gov\/atr\/guidelines-and-policy-statements. Combined with the earlier February 2023 withdrawal of safe-harbor policy statements, companies now operate without any formal agency guidance on permissible information exchanges. We expect that the joint agency guidance will cover information sharing scenarios.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\r\n<div class=\"word-count-hidden\" style=\"display:none;\">Estimated word count: <span class=\"word-count\">7122<\/span><\/div>\r\n\r\n\t\t\t<\/ol>\r\n\r\n<script type=\"text\/javascript\" src=\"\/wp-content\/themes\/twentyseventeen\/src\/jquery\/components\/filter-guides.js\" async><\/script><\/div>"}},"_links":{"self":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide\/142530","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide"}],"about":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/types\/comparative_guide"}],"wp:attachment":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/media?parent=142530"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}