Developments In US Antitrust Criminal Enforcement—2022 Year In Review

Introduction

The Department of Justice (DOJ) Antitrust Division has continued to be active in criminal enforcement over the last year, with a renewed focus on Section 2 enforcement, continued scrutiny of no-poach agreements and the labor market, the conclusion of its Broiler Chickens prosecutions, and continued activity by the Procurement Collusion Strike Force (PCSF). This Advisory details major developments in US criminal antitrust enforcement for 2022 and offers insights into what to expect in 2023.

Recent Trends and Areas of Focus

Renewed Focus on Section 2 Enforcement

2022 marked the resurrection of criminal enforcement by DOJ for violations of Section 2 of the Sherman Act. Section 2 expressly provides for criminal penalties for three types of conduct: monopolization, attempts to monopolize, and conspiracies to monopolize. But before this year, DOJ had not brought a criminal Section 2 case since the 1970s-choosing to exercise its discretion to pursue