An Update on Government and Private Cartel Enforcement in the United States

New administration, new priorities... perhaps

Gail Slater was confirmed as Assistant Attorney General (AAG) for the Department of Justice (DOJ) Antitrust Division in the second Trump administration in March 2025 (see here). Rounding out AAG Slater’s leadership team are Roger Alford (Principal Deputy Assistant Attorney General for the Antitrust Division), Omeed Assefi (Acting Deputy Assistant Attorney General for Criminal Enforcement), Mark Hamer (Deputy Assistant Attorney General for Litigation and Civil Enforcement), William Rinner (Deputy Assistant Attorney General for Civil Enforcement), and Chetan Sanghvi (Deputy Assistant Attorney General for Economic Analysis) (see here).

Will we see cartel enforcement pick up under AAG Slater? Given her short tenure to date, it remains to be seen what direction cartel enforcement will head. We know that cartel enforcement remained about the same during 2024, the last year of the Biden administration, as in the prior year. In 2024, the DOJ Antitrust Division charged 20 individuals and five companies with antitrust criminal violations, slightly down from the 22 individuals charged in 2023, but up from just two companies charged in 2023 (see Department of Justice, Criminal Enforcement Trends Charts Through Fiscal Year 2024, updated 29 October 2024, available here). On the other hand, total criminal fines and penalties experienced a marked downswing. In 2024, the DOJ collected a mere USD10.6 million in fines and penalties – a significant decrease from the USD267 million collected in 2023.

Statements made by AAG Slater during her confirmation hearing in Washington DC and at a recent Competition Summit suggest her priorities may be more focused on Section 2 than Section 1, but it is too early to suggest Section 1 is not also a priority.

For example, during her confirmation hearing, AAG Slater discussed her concern with the “growing practice” of non-compete agreements, which she identified as “quite prevalent in markets that are highly concentrated” (see here). Her observations may suggest that we will see more labour-markets cases brought by the DOJ in 2025 but focused perhaps on the use of non-compete agreements as a tool for alleged monopolisation or monopsonisation.

Additionally, AAG Slater expressed interest in partnering with state attorneys general to pursue targeted civil enforcement actions in cases where there is actual evidence of anti-competitive conduct and harm to consumers, signalling that antitrust cases brought, at least in part, by state enforcers are likely to continue throughout 2025 (see here). Finally, she signalled her support of existing cases brought against Big Tech companies, suggesting we may see even more enforcement against Big Tech, including in the artificial intelligence arena, throughout 2025 and beyond.

Similarly, AAG Slater again signalled support of cases brought against Big Tech companies at the “Little Tech Competition Summit” held on 2 April 2025 in Washington DC, which AAG Slater attended in place of the ABA’s annual Antitrust Spring Meeting. When asked about big-picture competition problems facing the country, AAG Slater responded with references to market power wielded by large tech companies (see here).

She also expressed a desire to increase antitrust enforcement to prevent monopolisation and the exercise of monopoly power by incumbents, particularly in emerging technology sectors such as artificial intelligence (see here). As AAG Slater’s tenure progresses, therefore, we will gain more insight into this administration’s cartel enforcement priorities.

Increased focus on interactions between competitors: information exchange

The DOJ recently delivered a strong message about information exchanges among competitors. In a Statement of Interest filed on 1 October 2024, it stated that “standalone information sharing... can undermine the competitive process; increase coordination among rivals; and cause an asymmetry of power in the market” and, therefore, can constitute a violation of the antitrust laws (see Statement of Interest of the United States, In re Pork Antitrust Litigation, No 0:18-cv-01776-JRT-JFD (D. Minn. 1 October 2024). Thus, according to the DOJ, information exchanges may, themselves, constitute an antitrust violation in certain circumstances.

The Statement of Interest provides insight into the Department’s view on the two key questions in a Section 1 claim involving information sharing: (i) whether there was “concerted action;” and (ii) whether the action was an “unreasonable restraint” of competition.

As to concrete action, the DOJ’s view is that an exchange of competitively sensitive information between or among competitors can constitute concerted action in at least two ways. First, a reciprocal exchange of information can, itself, constitute the concerted action. Stated differently, “free-standing information exchange among competitors is... itself concerned action...”. Second, information exchange could support an inference that a price-fixing or output-restriction agreement exists and, therefore, could be relied upon as evidence of a conspiracy to fix prices or restrict output. In such a circumstance, the price-fixing or output-restriction agreement is the asserted concerted action. Of course, complicated fact patterns create challenges for the DOJ’s theory.

As to an unreasonable restraint, in the DOJ’s view, the method by which a court should analyse whether the information sharing unreasonably restrains competition depends on the form of the concerted action. If the alleged concerted action is a price-fixing or output-restriction agreement (conduct which can support criminal liability) and information exchange is offered as support for the existence of such agreement – then courts should apply the per se standard, according to the DOJ. If the information exchange itself, however, is the alleged concerted action, then courts should apply the rule of reason standard.

Though the DOJ previously filed a series of statements supporting cases against pricing recommendation tools allegedly fuelled with non-public information, this was the first move that appears to target mere analogue, aggregated information sharing without an allegation of a commonly determined price. This appears to confirm the DOJ’s shift in enforcement priorities to detect and prosecute conduct involving exchanges of competitive information. Whether this shift in priorities will hold with the new administration, however, remains to be seen. We will see if 2025 will provide an answer.

Per se standard gets dinged: per se standard not applied when companies had a hybrid relationship

In 2024, the US Supreme Court in Washington DC denied the DOJ’s petition for certiorari in United States v Brewbaker, letting stand a Fourth Circuit Court of Appeals decision holding that the criminal per se standard does not apply where companies have both a vertical and horizontal relationship.

The Fourth Circuit held in 2023 that the per se rule only applies when demonstrable economic evidence shows that the restraint on competition at hand “always or almost always” has “manifestly anticompetitive effects” and “lack[s]... any redeeming virtue” (see United States v Brewbaker, 87 F.4th 563, 576 (4th Cir. 2023)). It went on to hold that there was insufficient economic evidence to warrant per se treatment of the agreement at issue in Brewbaker because, although the parties to the agreement competed for contracts, they had a hybrid relationship with both vertical and horizontal restraints that had “possible procompetitive effects”. As such, the indictment failed to allege a per se violation of the Sherman Act and the court reversed Brewbaker’s conviction.

As a result, given inter-company relationships that are vertical in nature even if there are also horizontal elements to the relationship, it will be more difficult for the DOJ to prosecute bid-rigging or price-fixing conduct as a per se violation of Section 1 of the Sherman Act. For additional background on the factual underpinnings of the Brewbaker case, see here.

Artificial intelligence, algorithmic information sharing and price fixing

In 2024, the DOJ informed the public that using pricing algorithms and other artificial intelligence tools will be considered criminal violations when they amount to price-fixing agreements, even if there are no direct communications between competitors. The DOJ’s position is that if a human engaging in conduct would have violated the antitrust laws, then it remains unlawful when performed by artificial intelligence or an algorithm.

Indeed, on 15 February 2024, the DOJ warned companies that the Department was closely investigating the use of artificial intelligence and algorithms and that companies could face criminal liability for improper sharing of confidential information with competitors (see Information Exchanges: What is Safe?, American Bar Association; Antitrust Law Section, 14 February 2024).

The DOJ has also noted that it expanded the scope of markets it is criminally investigating and emphasised that small companies and members of decentralised markets need to reassess their potential for criminal antitrust exposure.

Consistent with the DOJ’s increased focus on artificial intelligence, in March 2024, then-Deputy Attorney General Lisa Monaco authorised all DOJ prosecutors to seek sentencing enhancements when an offence involves the use of artificial intelligence because, in the DOJ’s view, it presents more serious risks to victims and the public at large (see Speech, Department of Justice, Deputy Attorney General Lisa Monaco Delivers Keynote Remarks at the American Bar Association’s 39th National Institute on White Collar Crime, (7 March 2024), available here).

Shortly thereafter, in May 2024, the Federal Bureau of Investigation (FBI) executed the first search warrant in a criminal investigation focused on the use of pricing algorithms in rental markets (see here). The FBI raided the headquarters of apartment owner and manager Cortland in Atlanta, Georgia.

While we expect the DOJ’s focus on companies using pricing algorithms and other artificial intelligence tools as potential facilitators of alleged price-fixing and price-fixing opportunities to continue apace under the second Trump administration, we await AAG Slater’s public commentary and private directions to the DOJ to identify and understand potential nuances in the DOJ’s approach to prosecuting algorithmic price fixing.

Labour markets

In a criminal case brought under the Biden administration that went to trial recently under the second Trump administration, the DOJ obtained its first guilty verdict for criminal charges related to labour markets.

In March 2023, the DOJ indicted a healthcare staffing executive for allegedly “knowingly enter[ing] into and engag[ing] in a conspiracy to suppress and eliminate competition for the services of nurses employed by the [uncharged] co-conspirator companies by agreeing to fix the wages of those nurses” between March 2016 and 2019 (see Indictment, United States v Lopez, No 2:23-cr-0055-CDS-DJA (D. Nev. 15 March 2023)). Then, in September 2023, the DOJ obtained a superseding indictment, adding charges for wire fraud, stemming from an alleged failure to disclose the pending criminal charges when completing certain paperwork accompanying the sale of the business (see Superseding Indictment, United States v Lopez, No 2:23-cr-0055-CDS-DJA (D. Nev. 6 September 2023). The case went to trial and, in April 2025, the jury voted unanimously to convict. How much, if at all, the alleged fraudulent conduct affected the jury verdict on the wage-fixing conduct is a subject of discussion.

Following the conviction, AAG Slater issued a statement: “Wage-fixing agreements are nakedly unlawful attempts at unjustly profiting off American workers. [This] verdict highlights what should be a clear message with antitrust crimes: the agreement is the crime. The Antitrust Division will zealously prosecute those who seek to unjustly profit off their employees” (see here).

This conviction is the latest, but not the only, movement in the world of antitrust and labour markets. It follows a joint statement from the DOJ and the Federal Trade Commission (FTC), issued at the tail end of the Biden administration, announcing the issuance of the Antitrust Guidelines for Business Activities Affecting Workers (the 2025 Guidelines), which replaced the 2016 Antitrust Guidance for Human Resources (HR) Professionals (see here and here). In announcing the new guidelines, the agencies noted that the guidelines, “explain how the Justice Department and FTC identify and assess the antitrust risk of business practices affecting workers” (see here). 

The FTC vote on the 2025 Guidelines passed 3-2, along Democrat-Republican party lines, with then-Commissioners Ferguson and Holyoak dissenting. In their joint dissent, they note that, despite agreeing that, “[t]he antitrust laws protect employees from unlawful restraints of the labor markets, and guidance reflecting the Commission’s enforcement position on these issues promotes important transparency and predictability to market participants[,]” they dissent because “the lame-duck Biden-Harris FTC should not replace existing guidance mere days before they hand over the baton” (see here).

Despite dissenting, now-Chair Ferguson has taken no steps to revoke the 2025 Guidelines or reinstate the 2016 Guidance. To the contrary, Chair Ferguson has expressed an interest in pursuing labour-related cases, stating in a recent interview, “I think one of the most important things that the FTC will do under my watch is focusing very intently on attacking anti-competitive conduct that hurts America’s workers” (see here). Thus, the 2025 Guidelines remain the operative guidance in the US and understanding them is important for counsel and companies alike. We therefore provide additional detail on the 2025 Guidelines below.

The 2025 Guidelines

The 2025 Guidelines open by noting that they “explain how [DOJ] and the [FTC] assess whether business practices affecting workers violate the antitrust laws” and warn that “business practices may violate the antitrust laws when they harm the competitive process, especially if they deprive labor markets of independent centers of decisionmaking or they create or abuse employers’ monopsony power”.

The 2025 Guidelines go on to describe six types of conduct the agencies may investigate, whether directed at employees or independent contractors.

Agreements between companies not to recruit, solicit, cold call, or hire workers, or to fix wages or terms of employment

The 2025 Guidelines continue the agencies’ stance that agreements not to recruit, solicit, cold call, or hire workers, or to fix wages or terms of employment may expose companies and executives alike to criminal charges and may also expose them to civil liability. Additionally, the 2025 Guidelines reiterate the agencies’ view that such agreements are subject to the per se standard, noting that the agreements are illegal even if they did not result in actual harm.

The 2025 Guidelines also provide further insight into how the agencies define wage-fixing, noting that, “If companies agree to align, stabilize, or otherwise coordinate the wages they set, including by agreeing to a range, ceiling, or benchmark for calculating wages, it does not matter if they do not agree on a specific wage”. They also note that “an agreement to set a starting point for compensation may be a form of wage[-]fixing under the law”.

The agencies reiterated the DOJ’s intent to criminally investigate and, where appropriate, bring felony charges against participants in these agreements – both individuals and companies.

Agreements in the franchise context not to poach, hire, or solicit employees of the franchisor or franchisees

The 2025 Guidelines describe the agencies’ view that franchisors and franchisees may compete for workers and, as such, if a franchisor enters into an agreement with a franchisee in which the franchisor and franchisee agree not to compete for workers, that agreement can be per se illegal. They also note that a franchisor may violate the antitrust laws by organising or enforcing a no-poach agreement among franchisees that compete for workers.

Exchanges of competitively sensitive information among companies that compete for workers

The 2025 Guidelines state the agencies’ intent to investigate exchanges of competitively sensitive information among companies that compete for workers, including exchanges of information about compensation or other terms or conditions of employment and other exchanges of information that harm competition for workers. They note that such exchanges may be unlawful when the information has, or is likely to have, an anti-competitive effect, whether or not that effect was intended.

The 2025 Guidelines also note the agencies’ view that such exchanges may be illegal even if the companies use a third party or intermediary, including a third -party using an algorithm, to share the information. Additionally, the 2025 Guidelines align with more recent Statements of Interest filed by the DOJ (see Section on Increased Focus on Interactions Between Competitors) noting that the exchange of such information may support the existence of a wage-fixing conspiracy.

Employment agreements that restrict workers’ freedom to leave their job

The 2025 Guidelines note the agencies’ intent to investigate, on a case-by-case basis, employment agreements restricting workers’ freedom to leave their job, including non-compete agreements preventing workers from joining a competing or potentially competing employer or requiring workers to pay a penalty upon leaving their job. This statement comes on the heels of a federal district court in Texas issuing a nationwide injunction, preventing the FTC’s final rule blocking almost all non-competes from taking effect (see here).

Other restrictive, exclusionary or predatory employment conditions that harm competition

The 2025 Guidelines describe the agencies’ intent to investigate all restrictive, exclusionary or predatory employment conditions that harm competition, including but not limited to overly broad non-disclosure agreements, training repayment agreement provisions, non-solicitation agreements that prohibit a worker from soliciting former clients or customers of the employer, and exit fee or liquidated damages provisions (see here).

False earnings reports

Finally, the 2025 Guidelines note the agencies’ intent to investigate and take action against businesses that make false or misleading claims about potential earnings that workers may realise.

Going forward, we anticipate new cases being brought by the DOJ and/or the FTC, in which the 2025 Guidelines will feature as a point of discussion. With those developments will come, perhaps, more guidance on interpretation of the 2025 Guidelines and insight into the degree to which the agencies will rely on them and how they will be used.

Private cartel litigation is the second principal enforcement tool

In the United States, private cartel-related civil cases are a powerful enforcement tool separate from but supplementing the DOJ’s criminal prosecutions. The private civil cases generally take the form of class actions brought on behalf of direct and indirect purchasers of the affected products. Often, but not always, a civil case will be filed following an announcement of an antitrust criminal investigation, criminal trial or plea. In those instances, the parties often settle the civil cases prior to the civil trial due to the risks of a high dollar exposure and concerning evidence suggesting the possibility of the existence of an unlawful agreement.

Defendants are often motivated to settle because:

• damages awarded at trial are trebled by statute;
• where multiple defendants are found to have conspired, they are jointly and severally liable for the total damages caused by the conspiracy, so any defendant that does not settle can be left holding the bag for trebled damages caused by all defendants (minus the settlement amounts paid to plaintiffs by the settling conspirators);
• plaintiffs, after prevailing, are also entitled to recover their reasonable attorneys’ fees and costs, which can amount to tens of millions of dollars or even much more in these complex class action cases that sometimes last a decade;
• lengthy civil discovery proceedings and trials are both costly and may be significant distractions to management’s pursuit of its business goals; and
• a loss at trial can carry far more harm to the defendant company’s/companies’ reputation(s) and customer standing than a settlement in which liability is neither admitted nor determined.

On the other hand, companies that believe they are improperly targeted by civil plaintiffs or being forced to pay extravagant settlements may resist to the end as a matter of principle, not principal. To be sure, some defendants have prevailed at summary judgment and/or at trial (see, for example, In re Broiler Chicken Antitrust Litigation, No 16 C 8637 (N.D. Ill.)).

Private plaintiffs have been particularly active in asserting violations in labour markets and alleging algorithmic information sharing/price-fixing, bringing follow-on class action litigation related to a number of the DOJ’s criminal labour markets cases as well as separate litigations in the algorithmic information sharing/price-fixing space. For a detailed discussion of follow-on civil class action litigation in labour markets, see Jordanne M Steiner & Kenneth R O’Rourke, “Working Hard or Hardly Working? Antitrust Labor Markets: An Update from the United States”, published by the International Bar Association Antitrust Committee in its Competition Law International publication.

Conclusion

The final year of the Biden administration, 2024, was nearly the same as the prior year with respect to the DOJ’s filing of new criminal antitrust enforcement indictments, although the fines collected decreased significantly. Private enforcers continued their aggressive pursuit of private civil litigation throughout 2024 and will undoubtedly keep it up in 2025.

Looking ahead to the new administration and its expected course of action, we anticipate seeing additional cartel cases brought by the DOJ (notwithstanding AAG Slater’s public focus on Section 2) and private plaintiffs alike – focused on alleged antitrust violations in the labour markets and on conduct involving information exchange, artificial intelligence and/or algorithmic pricing; all will be in the crosshairs of public and private enforcement in the months and years to come.