The primary statutory base for challenging cartel behaviour or effects is the Sherman Act of 1890, which prohibits “every contract, combination or conspiracy in restraint of trade or commerce among the several states”. This law makes it illegal for businesses to collude with one another to fix prices, allocate customers or markets, or agree to engage in other anti-competitive behaviour.

The Department of Justice’s Antitrust Division (DOJ or the “Division”) and the Federal Trade Commission (FTC) are the federal agencies responsible for enforcement of the federal antitrust laws. Each agency has a different jurisdictional focus and authority, although some areas overlap.

The DOJ Antitrust Division is responsible for criminal antitrust enforcement. It has jurisdiction to investigate and prosecute criminal antitrust violations, such as price-fixing and bid-rigging conspiracies. Individuals and companies found guilty of criminal antitrust violations can face significant fines and imprisonment. The maximum criminal fine for an individual is USD1 million and the maximum prison term is ten years. Corporations can face fines of up to USD100 million or twice the gain or loss resulting from the antitrust violation, whichever is greater.

Attorneys general of individual states have the power to investigate and challenge cartel conduct but generally focus on other types of antitrust offences and historically have not pursued criminal cartel prosecutions.

There is a private right of action to challenge cartel conduct in the United States. Private parties may bring civil lawsuits seeking damages or injunctive relief for harm suffered from antitrust violations. However, private actions must meet certain conditions before they can proceed. These include the following.

• Antitrust violation: The plaintiff must prove that the defendant engaged in conduct in violation of the antitrust laws, such as price fixing or bid rigging.
• Standing: The plaintiff must have suffered an injury caused by the defendant’s anti-competitive conduct. The injury must be of the type that antitrust laws were designed to prevent, such as higher prices or reduced output.
• Causation: The plaintiff must be able to demonstrate a causal link between the antitrust violation and the injury suffered.
• Damages: The plaintiff must demonstrate that they suffered damages resulting from the antitrust violation, such as lost profits or overcharges.

Private actions seeking damages for price-fixing and other cartel conduct under the federal antitrust laws – ie, for Sherman Act violations, are reserved for direct purchasers of the allegedly price-fixed product. Indirect purchasers (eg, buyers of goods containing a price-fixed component) can seek damages under the antitrust laws of certain states but not under federal law. While federal antitrust law does not permit indirect purchaser damages claims, indirect purchasers can bring state law damages claims in federal court.

The Sherman Act prohibits “every contract, combination, or conspiracy in restraint of trade or commerce among the several states”. Subsequent court decisions have clarified that the Sherman Act prohibits agreements between competitors to fix prices, allocate markets, or rig bids. 

For example, in the case of United States v Socony-Vacuum Oil Co., the Supreme Court held that agreements between competitors to fix prices or allocate markets are per se illegal, meaning that they are presumed to have anti-competitive effects and do not require a full analysis of market impact.

The courts have classified the following conduct as per se unlawful: price fixing among competitors, bid rigging or collusive bidding, output restrictions or production limitations, market allocation or customer allocation, certain group boycotts or concerted refusals to deal, and certain agreements to limit competition as to product characteristics or quality and advertising or promotional activities.

There are virtually no industry or sector exemptions from scrutiny for cartel conduct under the antitrust laws. However, there are certain activities or practices that have been held to be exempt based on constitutional principles or because there is a limited statutory exemption. For example, group efforts to exercise their right to petition (or lobby) government officials under the First Amendment of the United States Constitution are exempt from antitrust regulation under the Noerr-Pennington Doctrine. Similarly, certain activities related to collective bargaining by labour unions are exempt from antitrust scrutiny under the National Labor Relations Act.

The statute of limitations for criminal cartel violations is five years. The statute typically starts running from the last unlawful act, although this can potentially be extended where the unlawful agreement continues to be in effect. If the last act occurred within five years of the commencement of an action, all prior acts in furtherance of the cartel are actionable even when they occurred more than five years prior. Tolling and related doctrines are generally not available in criminal cartel cases.

For private actions brought by plaintiffs, the statute of limitations is typically four years. Unlike in criminal cases, tolling is generally available in civil lawsuits alleging price-fixing and related offences. Courts frequently find that cartels, which are by their nature secret, are fraudulently concealed such that the statute of limitations is tolled until the cartel is uncovered, regardless of when the unlawful acts took place.

The primary jurisdictional limitation in cartel cases comes from the Foreign Trade Antitrust Improvements Act (FTAIA). The FTAIA provides that US antitrust laws do not apply to conduct involving foreign commerce unless the conduct has a direct, substantial and reasonably foreseeable effect on US commerce. In practice, courts have generally found that cartel conduct occurring outside the US falls within US jurisdiction where the cartelist sold price-fixed products into the United States.

Principles of comity in the United States are mainly established through case law. In antitrust cases, comity may be invoked when a court is asked to recognise and enforce a judgment or order from a foreign jurisdiction.

The application of comity is within the discretion of the courts or relevant government agency. US courts will generally defer to foreign judgments if the foreign court had jurisdiction over the parties and the dispute, and the judgment is not contrary to US public policy. Courts will also usually require that the foreign judgment is final and conclusive, and that the foreign court applied principles of due process and fair procedure.

The Trump administration is expected to continue pursuing cartel enforcement. If the first Trump administration is a preview of the next four years, civil antitrust enforcement will also continue to be a priority.

While the Biden administration was particularly active in pursuing novel cases affecting labour markets, including so-called no-poach cases, or alleged agreements between competing employers not to hire away each other’s employees, the DOJ under the Biden administration had little success in securing convictions for these alleged antitrust offences at trial. It was just recently under the new Trump administration that the DOJ achieved its first jury conviction from a no-poach case.

ESG collaborations are another area where activity could be seen in the coming year. Past antitrust enforcers have consistently taken the position that ESG co-ordination carries antitrust risks, but the federal enforcement agencies have not brought ESG-related actions. Republican state attorneys general have filed ESG-related lawsuits, including two major cases in 2024.

There are several written guides relating to cartel conduct and enforcement published by government authorities in the United States, including the following.

• DOJ Antitrust leniency policy. The guidelines can be found here.
• Antitrust Guidelines for Collaborations Among Competitors. These guidelines were published by the Federal Trade Commission and the Department of Justice Antitrust Division in 2020. They provide guidance on how companies can collaborate with each other without violating antitrust laws. The Biden administration withdrew these guidelines shortly before leaving office and the Trump administration has not announced its plans yet. The guidelines can be found here.
• Antitrust Enforcement Guidelines for International Operations. These guidelines were published by the Department of Justice Antitrust Division in 2016. They provide guidance on how the antitrust laws apply to conduct that occurs outside of the United States. The guidelines can be found here.
• The Federal Trade Commission Act. This is another federal law that prohibits anti-competitive conduct. The text of the FTC Act can be found here.

The DOJ receives information about potential anti-competitive conduct from a variety of sources. These include companies self-reporting potential violations through the agency’s leniency programme, as well as complaints from third parties such as whistle-blowers, competitors or customers. DOJ prosecutors also look for indications of cartel conduct in news reports, industry developments or civil case filings.

After learning of a potential criminal violation, the DOJ will open an investigation. In case of a leniency application, initial investigatory steps generally include accepting proffers of evidence from counsel representing the applicant, review of related documentary evidence presented by the applicant, and interview of key witnesses.

The key next step is generally the issuance of subpoenas to companies who participated in the alleged cartel. In some cases, these may be immediately preceded by dawn raids or drop-in interviews at the homes of individuals the DOJ believes may have participated in or been aware of the conduct.

At the beginning of an investigation, the Division will sometimes conduct dawn raids with the assistance of the FBI. The DOJ must obtain a search warrant from a court before it can carry out a dawn raid.

If the government arrives with a search warrant, a company or individual will generally be required to: permit investigators to enter premises and conduct the search; provide access to any relevant documents, including physical and electronic documents; and provide access to any computer systems or networks that may contain relevant information.

There are restrictions on dawn raids; most notably the requirement that the investigators obtain a search warrant from a court. Access to computers and emails may be limited to documents and communications relevant to the specific subject matter of the investigation, and the seizure of relevant documents must be done in accordance with the search warrant and applicable law.

Companies can obtain copies of documents that are seized during the search, but the process of obtaining these copies can be protracted.

Investigators cannot legally compel any individuals to sit for interview or answer questions about the underlying conduct. The right of individuals not to answer questions (the right to remain silent) is a constitutional right protected by the Fifth Amendment. Nevertheless, if individuals choose to respond to investigators’ questions, they must respond truthfully to avoid potential liability for obstruction of justice.

In the United States, companies and individuals have an obligation to prevent or avoid spoliation of potentially relevant information as soon as they become aware of, or reasonably anticipate, an investigation or litigation. This obligation includes taking reasonable steps to preserve relevant information, including physical and electronic documents, data and other information that may be subject to discovery or subpoena requests. Failure to preserve relevant information can result in sanctions or adverse inferences against the party that failed to preserve the information, as well as criminal obstruction of justice charges.

Individuals in US legal proceedings have a right to counsel. If an individual agrees to sit for a DOJ interview, the individual has a right to be represented by counsel during the interview. There are no formal rules governing the specific scope of counsel’s participation in a DOJ interview. Individuals who sit for a DOJ interview generally do so voluntarily. Consistent with the client’s constitutional rights, counsel can advise his client to assert their Firth Amendment privileges and not to respond to the DOJ’s questions.

Individuals may choose to obtain separate counsel, particularly if there is potential for a conflict of interest between the individual and the company. In some circumstances, the company may even be required to advise employees to obtain separate counsel, particularly when there is a risk that the interests of the individual and the company may diverge. Because of the high cost of competent counsel in the US, companies will often pay for separate counsel for their officers and employees. This enables individuals to secure effective representation that may otherwise be cost prohibitive. Companies generally benefit when their employees are represented by competent counsel for multiple reasons, including protecting the rights and interests of their employees and facilitating effective joint defence efforts.

During the initial phase of an enforcement action, defence counsel generally focus on obtaining a quick understanding of the underlying facts and evidence to begin developing an effective strategy. This generally involves interviewing key individuals as soon as an investigation starts or evidence of a potential violation surfaces. It also involves speedy preservation, collection and review of relevant documents.

The DOJ can obtain documentary evidence or testimony during an investigation of alleged cartel behaviour by issuing subpoenas or obtaining search warrants from a court. Leniency applicants may also provide documents and testimony as part of their co-operation obligations. Non-documentary information, such as witness testimony or expert opinions, may be obtained by enforcement agencies through interviews. The DOJ may also obtain sworn testimony from witnesses through a grand jury, which is comprised of a group of citizens who must approve all decisions by the DOJ to bring formal criminal charges against a defendant.

Procedural and substantive requirements vary depending on the specific means used to obtain evidence, but in general, the DOJ must comply with constitutional protections against unreasonable searches and seizures and ensure that the scope of their requests or searches is reasonable and proportionate to the investigation at hand. Defendants may seek redress from a court if they believe the DOJ is exceeding its authority or violating their constitutional or legal rights.

US laws provide strong attorney-client privilege and related protections for communications with both outside and in-house counsel as well as materials prepared by counsel in anticipation of litigation.

The attorney-client privilege protects confidential communications between attorneys and their clients made for the purpose of seeking or providing legal advice. Communications with in-house counsel are generally protected under the attorney-client privilege if the communications were made for the purpose of seeking or providing legal advice. The work product doctrine also protects documents and materials prepared in anticipation of litigation or for trial by or for a party or its representative. A company can waive attorney-client communications, which is why it is often important for individuals to have separate counsel.

There are other privileges recognised in the United States that may be pertinent to a cartel investigation. For example, the Fifth Amendment to the United States Constitution provides a privilege against self-incrimination, which can be asserted by an individual in response to questioning by government authorities. Corporations do not have a Firth Amendment privilege.

Legally, failure to comply with a request for information or an investigative subpoena can result in the agency seeking a court order to compel compliance. If a court order is issued and the individual or firm still refuses to comply, they may be held in contempt of court, which could result in fines or imprisonment.

Practically, non-cooperation can harm the individual's or firm’s relationship with the enforcement agency and may lead to a more aggressive investigation and hardened agency positions.

It is generally advisable for individuals and firms to co-operate with enforcement agencies to the extent required by law and to work with legal counsel to ensure that their rights are protected throughout the investigative process.

Parties are generally able to protect confidential or proprietary information from disclosure to third parties under certain circumstances. For example, parties may assert claims of attorney-client privilege or work product protection to protect communications or documents from disclosure if they were created for the purpose of seeking or providing legal advice or in anticipation of litigation.

In addition, parties may seek protective orders from the court to limit the disclosure of confidential proprietary information during the discovery process or in response to requests for information from the enforcement agency. However, the practical ability to shield confidential or proprietary information from DOJ is limited because, as a government agency, DOJ is generally not in a position to misuse such information against a company.

Third parties may also seek protection for confidential or proprietary information, such as through confidentiality agreements or protective orders.

Defence counsel for the target of a cartel investigation may raise legal and factual arguments at various stages of the investigation, including during meetings with the enforcement agency and in some cases in written submissions.

Typically, counsel representing a company subject to a cartel investigation will provide multiple proffers to the DOJ, summarising the relevant evidence and ultimately framing that evidence in a light most favourable to the company. Proffers are generally provided orally. Written submissions are rare in criminal cartel matters but can be used to underscore key points or provide more comprehensive analysis of relevant legal issues. Counsel will often also make witnesses available to the DOJ for interviews as part of the advocacy process to give the DOJ an opportunity to hear directly from knowledgeable individuals whose testimony may support a decision to forego prosecution.

Companies are generally well served by early engagement with the DOJ. As a result, counsel should work quickly to conduct an internal investigation to understand the facts, collect key evidence, and interview key witnesses so that it can begin making proffers and advocating its client’s position on the merits with the DOJ.

The DOJ maintains an active leniency programme that generally makes immunity from prosecution available to the first company that self-reports an unknown criminal antitrust violation. The immunity to the first company can potentially extend to its employees and officers.

To obtain leniency or immunity, a cartel participant must come forward with information and evidence about the cartel that is not already known to the authorities. The applicant must co-operate in the DOJ investigation, continue to provide evidence and make witnesses available for DOJ interviews. The applicant must also ultimately admit that it engaged in a criminal antitrust violation.

The first participant to come forward and satisfy the requirements of the leniency programme may be granted full immunity from prosecution, including criminal fines and jail time for covered co-operating executives and employees. Leniency is not available for other companies although generally companies that are not “first in” can obtain better treatment from the DOJ through early and full co-operation.

A company can apply for a “marker” under the DOJ’s Corporate Leniency Policy. The marker provides the company with a limited period to gather the necessary information and evidence to satisfy the leniency requirements. The marker protects the company’s place in line for leniency while it conducts its internal investigation.

The DOJ has a strong record of granting leniency to co-operating parties, and the programme has been successful in uncovering cartels and prosecuting participants.

There is no separate amnesty regime distinct from the leniency programme. As mentioned above, the Antitrust Division operates a leniency programme that offers immunity to corporations and individuals who self-report their involvement in cartel activity, co-operate fully with the investigation, and meet other conditions.

The Criminal Antitrust Anti-Retaliation Act (15 U.S.C. § 7a-3) prohibits employers from retaliating against certain individuals who report criminal antitrust violations. The Act allows an individual to file a complaint with the Secretary of Labor if they are retaliated against for reporting to the federal government information about what they believe to be a criminal violation of the antitrust laws. The Antitrust Division of the Department of Justice has a Report Violations Page on its website.   

The law is different from other whistle-blower protection statutes in the US, however, in that whether a whistle-blower can receive financial compensation for reporting a criminal antitrust violation depends on whether the victim of the violation was a government entity or private individuals. The law does not provide financial compensation to an antitrust whistle-blower where the Antitrust Division brings criminal prosecution and fines are imposed. The whistle-blower can bring a qui tam lawsuit under the False Claims Act if the federal government is a victim of the criminal antitrust violation. If the government recovers money from a qui tam lawsuit, then the whistle-blower is entitled to a portion of that recovery.

Last year, the DOJ updated its Evaluation of Corporate Compliance Programs (ECCP) guidance to emphasise the DOJ’s expectations that corporations should actively promote internal whistle-blowing and safeguard individuals who report misconduct. The ECCP guidance sets out factors that the DOJ will consider in determining whether to bring charges and negotiating plea or other agreements. This assessment will include whether companies have adequate policies and training to encourage whistle-blowing and prevent retaliation. 

As a practical matter, the DOJ will generally interface with counsel to obtain documents or testimony from employees who are not separately represented and with individual counsel for employees who are separately represented.

The DOJ can seek information directly from company employees through various means, including issuing subpoenas, conducting interviews or requesting voluntary co-operation.

If the DOJ chooses to issue a subpoena, it must comply with procedural requirements, such as providing notice to the recipient and allowing an opportunity to challenge the subpoena in court.

As a matter of course, the DOJ seeks documentary information directly from the target company, generally through a grand jury subpoena. A subpoena seeking the production of documents and other evidence is one of the early steps in an investigation and sets the stage for document searches and productions that can be large in volume, broad in scope, and can take months to complete.

Grand jury subpoenas are subject to grand jury secrecy rules and require a court order for a recipient to challenge or quash the subpoena.

The most common way for the Division to seek information from foreign entities is by serving subpoenas on their US-based operations or subsidiaries, but the DOJ’s ability to obtain foreign-located evidence is limited. The DOJ may also seek other forms of international co-operation, but this process can be protracted and is rarely used in cartel investigations.

Most criminal cartel investigations are led by the Antitrust Division. The Division co-ordinates with other DOJ departments, including the FBI, to conduct investigation. The DOJ co-ordinates with local and federal law enforcement or other agencies as appropriate, to conduct a thorough investigation.

The Antitrust Division has various co-operation agreements to facilitate international cartel investigations, including the Mutual Legal Assistance Treaties (MLATs), antitrust co-operation agreements (ACAs), and Memoranda of Understanding (MOUs). These agreements enable the authorities to share information and co-ordinate enforcement actions. One notable benefit of international co-operation is the ability of agencies, including the DOJ, to co-ordinate dawn raids or the timing when their investigations become public or overt.

In the United States, criminal cases for cartel conduct are typically brought by the DOJ in federal court. The process of bringing a criminal case usually begins with an investigation by the Antitrust Division. If the Antitrust Division concludes that there is sufficient evidence of cartel conduct, it may bring criminal charges against the individuals and companies involved.

The DOJ will typically seek an indictment from a grand jury, which is a group of citizens who are convened to hear evidence presented by the government and decide whether there is probable cause to believe that a crime has been committed. If the grand jury returns an indictment, the case will proceed to trial in federal court.

Defendants in criminal cases have the right to access information in the hands of the government through the discovery process, which allows them to request and review documents and other evidence that the government plans to use at trial. The DOJ is required to provide defendants exculpatory evidence in its possession. This includes evidence that is favourable to the defendant, that may reduce the defendant’s exposure, or that may go against the credibility of unfavourable witnesses. Defendants also have the right to request information from third parties that may be relevant to their defence.

Before trial, there are several pretrial procedures that may apply, including motions to suppress evidence obtained in violation of the defendant’s rights, motions to dismiss the case for lack of evidence, motions to suppress irrelevant or prejudicial evidence and plea negotiations.

The DOJ has the option to pursue a cartel offence criminally, civilly or both. Civil proceedings are governed by the Federal Rules of Civil Procedure. The DOJ can also issue civil subpoenas before proceedings with a complaint and federal court discovery. Unlike in criminal cases, the DOJ can also seek formal deposition testimony through civil discovery.

In cartel matters, private civil litigation is more common than civil litigation against the government, except where the government is the alleged victim. Civil litigation often involves extensive dual-discovery, including document productions, third-party subpoenas and depositions. 

Civil cases can be tried in front of a judge or jury, although plaintiffs generally prefer juries and exercise their rights to jury trials more often than agreeing to proceed with bench trials.

Retained experts, including economists, can play an important role in cartel investigations and related proceedings. Economists may be retained to analyse market structure, market power, pricing behaviour and damages. Other experts, such as accountants, may be retained to analyse financial records and other data. At times, parties will also retain industry experts.

As a practical matter, experts (including economists) are more often used in private litigation than in criminal proceedings. In private litigation, experts play a key role because their reports are used as key evidence on damages, and damages are a key issue in civil cases but not in criminal cases. In criminal cases, the DOJ may seek to introduce experts where it seeks to base a fine on affected commerce rather than the statutory USD100 maximum. In cases where a defendant claims financial inability to pay a penalty, the DOJ and the defendant may retain accountants to analyse the defendant’s finances.

In all cases, the experts are expected to provide impartial and objective analysis based on sound methodology and principles of their respective fields. The rules of evidence and admissibility standards also apply to the expert reports and testimony, and the experts are subject to cross-examination by opposing counsel.

In the United States, evidence obtained in one proceeding can generally be used in other proceedings, subject to certain limitations. These can include demonstrating authenticity, relevance, admissibility and providing an opportunity to challenge the evidence.

For example, a defendant can seek to exclude deposition testimony from another proceeding if it was not involved in that proceeding and did not have an opportunity to object and ask questions during the deposition. Moreover, evidence obtained through illegal means, such as wiretaps conducted without proper authorisation, is generally not admissible in court.

Evidence proffered by an applicant for leniency or obtained from another jurisdiction can also be used in other proceedings, again subject to certain limitations. However, the DOJ must follow strict rules for evidence used in criminal proceedings and generally cannot obtain evidence from other jurisdictions.

In the United States, investigatory agencies have the authority to bring enforcement actions against companies and individuals engaged in cartel conduct. However, they do not have the authority to impose sanctions directly. Instead, they must bring their cases before a court. The court then has the authority to impose penalties and sanctions if liability is established.

The limitations on the authority of the investigatory agencies include the requirement to follow established procedures for bringing cases to court and proving their case through the presentation of evidence. Additionally, the agencies must adhere to statutory limitations on the types of penalties and sanctions that may be imposed in antitrust cases.

Plea bargaining and settlements are common in United States antitrust enforcement proceedings, including those involving cartel conduct.

The plea bargaining or settlement process can occur at any stage of the proceeding, from the initial investigation through trial. Defence counsel can start laying the groundwork for a plea bargain informally through proffers and presentations to the DOJ early in an investigation. More formal plea bargaining occurs later in an investigation after both sides indicate openness to a negotiated, pretrial resolution.

A plea bargain in a DOJ criminal cartel investigation will ultimately result in a plea agreement, whereby the defendant usually agrees to plead guilty in exchange for a specifically negotiated sentence or a set of sentencing parameters that would be presented to the court. The court must approve a plea agreement in a criminal matter.  For strictly civil matters, court approval is not required.

There can be collateral effects in other litigation or government contracting if liability or responsibility is established in cartel cases in the United States. For example, a criminal sentence for a cartel violation, whether pursuant to a plea agreement or verdict at trial is prima facie evidence of a violation in subsequent civil proceedings. Additionally, a company or its officers may be debarred from government contracting if they are found to have violated antitrust laws.

Plea bargaining or settlement can potentially mitigate these collateral effects, depending on the terms of the agreement. For example, a settlement agreement may include provisions that allow the company to avoid debarment from government contracting. However, the availability and scope of such provisions will depend on the specific circumstances of each case and the negotiating positions of the parties involved. The primary way to limit the evidentiary value of a plea agreement in subsequent civil cases is to limit the scope of the conduct to which the defendant pleads guilty (eg, the time period of the offence or the products or customers covered).

In the United States, the range of available sanctions and penalties in criminal proceedings for cartel conduct can be severe. Companies and individuals can face fines, imprisonment and other penalties. The fines can be significant and may be calculated on a formula based on the value of commerce affected by the cartel conduct or statutory maximum of USD100 million per violation for companies, and USD1 million for individuals. Corporate fines based on the volume of affected commerce (twice the loss or gain from the conduct) can often exceed USD100 million.

The United States Sentencing Guidelines provide guidance for judges in determining the appropriate penalties for companies and individuals convicted of cartel conduct. The guidelines consider factors such as the nature and seriousness of the offence, the level of culpability of the defendant and the defendant’s co-operation with the government’s investigation. However, the guidelines are not mandatory, and judges have discretion in determining the appropriate sentence.

In addition to fines and imprisonment, companies and individuals can face other sanctions and penalties, such as probation, asset forfeiture and restitution. In criminal matters, the DOJ will typically propose a fine and/or penalty to be imposed, but the ultimate decision rests with the judge presiding over the case.

There are also special circumstances under which more severe penalties can be imposed when additional charges are brought. For example, if a company or individual is found to have obstructed justice or committed perjury during the investigation or trial, penalties can be enhanced.

Total annual criminal penalties exceeded USD1 billion for four years in a row from 2012 to 2015 and exceeded USD3.6 billion in 2015 alone. Since 2015, total criminal fines and penalties have decreased drastically exceeding USD500 million only in 2020 and reaching an all-time low of USD2 million in 2022. Prison sentences in practice rarely approach the statutory maximum of ten years because few individuals risk a criminal trial. The United States Sentencing Guidelines recommend ten to 16 months of imprisonment for a base offence level crime. During the first half of the 2010s, the average prison sentence started to creep up to the 22- to 25-month range.

While there have been instances where the United States has sought to extradite alleged antitrust violations, these instances have been exceedingly rare. To date, only Germany and Italy have extradited individuals based solely on alleged antitrust violations.

Historically, the DOJ has not given credit to compliance programmes on the theory that a programme was ineffective if a company participated in a cartel. Under recent policy changes, the DOJ will consider a company’s compliance programme as a factor in assessing how to proceed against a corporate defendant. In assessing the effectiveness of the compliance programme, the DOJ considers various factors, such as the company’s commitment to compliance, the resources allocated to the compliance programme, the quality of the programme, the experience and training of the individuals responsible for the programme, and the company’s compliance culture.

In antitrust cartel cases, the court may order injunctive relief to prevent further antitrust violations and may also order restitution to consumers who have suffered harm from the violation. However, the DOJ generally does not seek restitution in cartel cases because private plaintiffs generally seek damages in follow-on litigation.

In the United States, both criminal and civil enforcement proceedings may be subject to judicial review or appeal.

In criminal cases, a defendant can typically appeal a conviction and/or sentence to a higher court, such as a federal appellate court, and ultimately to the United States Supreme Court. The standard of review on appeal is typically whether the lower court made an error of law or abused its discretion. It is relatively common for criminal convictions to be appealed. Defendants that enter plea agreements waive their right to appeal. Courts will generally not disrupt this waiver, absent extraordinary circumstances.

It is also relatively common for civil judgments to be appealed. The standard of review will depend on the nature of the decision being appealed and the legal issues involved. For example, a district court’s findings of fact will generally be reviewed for clear error, while its conclusions of law will be reviewed de novo.

It is worth noting that, in some cases, parties may have the opportunity to seek interlocutory review, which allows for immediate review of a decision by a higher court before the case has concluded. However, such reviews are typically only available in limited circumstances, such as when the lower court’s decision involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from the decision may materially advance the ultimate termination of the litigation.

Investigations can often extend for a year or more, but unless an investigation target agrees to toll the running statute of limitations, the DOJ must file charges within five years of from the last act in furtherance of the alleged conspiracy.

In the United States, there is a private right of action to seek damages for harm caused by antitrust violations, including alleged cartels. The threshold requirements for such an action generally require that the plaintiff demonstrate antitrust injury, which means injury resulting from conduct that violates antitrust laws and that harm competition.

While civil actions carry a lower burden of proof than government actions, they must also focus on proof of damages, which the government does not need to prove in a cartel action.

Private antitrust actions in the United States can be brought as class actions by individuals or companies that can demonstrate harm from the cartel conduct; generally, buyers of the price-fixed products.

To bring a class action lawsuit, the plaintiff(s) must meet the requirements of Rule 23 of the Federal Rules of Civil Procedure, which include a numerosity requirement (the class must be so large that joinder of all members is impractical), commonality (there are questions of law or fact common to the class), typicality (the claims or defences of the representative parties are typical of the claims or defences of the class), and adequacy of representation (the representative parties will fairly and adequately protect the interests of the class).

In the United States, the issue of indirect purchasers or “passing-on” defences was traditionally handled through the application of the Illinois Brick doctrine. Under this doctrine, only direct purchasers have standing to sue for damages resulting from an antitrust violation, while indirect purchasers (such as consumers who purchase goods or services from the direct purchaser) do not have standing to bring a damages claim. 

However, there are several exceptions to the Illinois Brick doctrine. These exceptions allow indirect purchasers to have standing to bring an antitrust claim for damages when the indirect purchaser has a pre-existing, fixed quantity, cost-plus contract with the direct purchaser, when the indirect purchaser owns or controls the direct purchaser, or when a conspiracy exists between defendants and the direct purchaser. In addition, more than two-thirds of states and the District of Columbia have enacted laws that allow indirect purchasers to sue for damages.

Generally, evidence obtained from governmental investigations or proceedings may be admissible in private civil litigation involving alleged cartels, subject to the usual rules of evidence. In some recent instances, courts have ordered defendants to produce documents provided to the government in parallel proceedings to private plaintiffs in the early stages of a case.

The frequency of completed litigation versus dismissal or settlement in private antitrust cases depends on various factors such as the strength of the plaintiff’s case, the complexity of the legal and factual issues involved and the resources of the parties. That said, a significant percentage of antitrust cases are resolved through settlement.

Timeframes also vary depending on the complexity of the case and the pace set by the court. On average, private antitrust cases in the United States take several years to reach resolution. However, some cases can be resolved more quickly if the parties reach a settlement early in the litigation process.

Successful attorneys for class action claimants in private antitrust litigation are typically compensated by an amount determined by the court. In the United States, class action attorneys’ fees are often awarded under a “lodestar” method, which multiplies the number of hours spent by an attorney on a case by an hourly rate that is reasonable for the attorney’s experience and skill level. The court may then adjust the lodestar figure based on various factors, such as the complexity of the case, the results obtained, and the risk of non-payment.

Attorneys for direct action plaintiffs who are not part of a class or “opt out” of a class, are compensated based on agreements with their clients which can include traditional hourly fees or contingency fees.

Under the default rule in the United States, each party is responsible for paying their own attorneys’ fees and litigation costs, regardless of the outcome of the case. However, some statutes provide for the award of attorneys’ fees to the prevailing party. For example, in antitrust cases, the Clayton Act allows for the award of attorneys’ fees to the prevailing party.

In the United States, decisions involving private civil litigation can be subject to appellate review. The standard of review is typically deferential to the lower court’s factual findings and legal conclusions, and the appellate court will generally only reverse if it finds that the lower court committed a clear error of law or fact. In some cases, there may be further opportunities for review, such as a petition for rehearing or an appeal to the United States Supreme Court.

Information sharing can be a stand-alone violation of US antitrust laws. The Antitrust Division has taken the position that information exchanges among competitors “is itself a form of concerted action that can violate the antitrust laws”, even when done through a third party.

Information sharing violates Section 1 of the Sherman Act when it tends to harm competition. In some circumstances, communication between competitors that include certain forms of exchange of highly confidential or sensitive information that can serve as circumstantial evidence of an agreement to fix prices. This means that information-sharing claims are subject to the rule of reason analysis, a fact-specific inquiry in each case. 

The DOJ has highlighted several factors to be considered in assessing whether an information exchange among competitors tends to harm competition. These factors include the sensitivity of the information exchanged, granularity of the information exchanged, public availability of the information exchanged, contemporariness of information exchanged and structure of the industry involved.

Recently, a federal court considering the use of an algorithmic pricing tool in Duffy v Yardi Systems, Inc. applied per se treatment where plaintiffs alleged that defendants joined a conspiracy to share detailed, competitively sensitive, non-public information which would be used to establish supracompetitive rental rates in the multifamily housing market. The DOJ has also argued in several statements of interest that algorithmic price-fixing is per se illegal. Moving forward, companies and counsel should anticipate the DOJ to apply heavy scrutiny to exchanges of competitively sensitive information between separate entities.

The Antitrust Division has shifted significant attention to information-sharing cases involving the use of AI and algorithms in recent years, while casting the conduct under a traditional price-fixing theory. In 2024, the Division opened a criminal investigation into a software company that was alleged to use algorithmic pricing to fix rental prices among competitor landlords, and other large apartment owners and managers using the company’s software.  While the Division ultimately decided to pursue only a civil lawsuit, opening a criminal investigation signals they are seeing information sharing and algorithmic pricing as an area subject to criminal enforcement. 

Similarly, the DOJ statements of interest in other algorithmic pricing cases involving the hotel and residential rental industries state that certain types of indirect information sharing through an algorithm, software or AI tool should be condemned as per se violations of Section 1 of the Sherman Act. Such statements further demonstrate that the DOJ is closely monitoring tools that permit sharing information through AI or algorithms.

Monopolisation has traditionally not been viewed as a cartel offence in the United States. Under Section 2 of the Sherman Act, monopolisation, attempted monopolisation and conspiracy to monopolise, are prohibited activities.  Monopolisation requires (i) monopoly power in the relevant market and (ii) the wilful acquisition or maintenance of that power as distinguished from growth or development resulting from a superior product, business acumen, or historic accident. Attempted monopolisation requires (i) anti-competitive conduct, (ii) a specific intent to monopolise and (iii) a dangerous probability of achieving monopoly power. Conspiracy to monopolise (similar to a Section 1 conspiracy claim) requires (i) a combination or conspiracy, (ii) an overt act furthering the conspiracy and (iii) specific intent to monopolise.

Healthcare, public procurement, algorithmic pricing and labour market infringements have received significant scrutiny in recent years and are likely to continue to receive scrutiny moving forward. 

Biden administration enforcers were highly active in the healthcare space, targeting anti-competitive practices in the healthcare and pharmaceutical industries. The Trump administration is expected to continue investigations into the role of PBM middlemen in the healthcare industry.

The DOJ has also successfully targeted cases in the public procurement space over the last five years. During that time, the Procurement Collusion Strike Force (PCSF) has successfully pursued and supported prosecutions involving government procurement, grants and programme funding both domestically and abroad. To date, the PCSF has opened more than 145 criminal investigations, secured more than 60 criminal convictions, and prosecuted over 85 companies and individuals involving more than USD500 million in government contracts. Though PCSF efforts have resulted largely in prosecutions of small, local cartels, one can anticipate additional resources being applied.

A subject likely to be of continued interest to DOJ enforcers is artificial intelligence and algorithmic pricing, particularly with the rapid development and adoption of AI tools by businesses. The Antitrust Division has hired data scientists and specialists to support its case teams to detect, investigate and prosecute cases involving “algorithmic collusion”.  It has also been very vocal on the issue in press releases, speeches by officials and a series of statements of interest filed in private lawsuits alleging antitrust violations involving common use of algorithmic pricing software by competitors and suggesting that algorithmic collusion can be a per se violation of the antitrust laws, subject to criminal enforcement.

The DOJ has provided updated guidance to emphasise its concern over the adoption of ephemeral messaging systems in day-to-day business communications. The DOJ’s position is that a failure to preserve an ephemeral message where there is an obligation to preserve evidence can put a company at risk of obstruction of justice charges or other sanctions.

The DOJ has taken the position that “no poach” and labour market allocations agreements can constitute per se antitrust violations. Joint FTC-DOJ Guidance provides that certain naked no-poaching agreements among employers, whether entered directly or through a third-party intermediary, are unlawful. No poach agreements are “naked” when they are separate from or not reasonably necessary to a larger legitimate collaboration between the employers. Where a company can demonstrate a no poach agreement is ancillary to a legitimate purpose, the agreement will be evaluated under the rule of reason and not the per se standard. 

Although the DOJ has brought several no poach criminal prosecutions, it has generally been unsuccessful in persuading juries (and some judges) that this kind of conduct amounts to criminal behaviour. Indeed, it was not until April 2025 that the DOJ won its first conviction before a jury in a no poach case. In that case, United States v Lopez, No. 2:23-cr-00055 (D. Nev.), a federal jury convicted a home health agency executive of conspiring to fix the wages for home healthcare nurses in Las Vegas and for fraudulently failing to disclose the investigation during the sale of the company. One reason convictions have perhaps been difficult is that until recently, the widespread nature of no poach conduct makes it seem less offensive than other types of criminal cartel behaviour. “No poach” agreements were common in business. Estimates suggest that no poach agreements covered 60% of major franchises in the United States in 2016, and that 20% of labour force participants in the United States were covered by a non-compete agreement in 2014. 

Market allocation cases are illegal even if intended to help smaller businesses compete. One obstacle in market allocation cases is that courts have held that per se treatment for horizontal market allocation requires the DOJ to show a “cessation of ‘meaningful competition’” in the alleged allocated labour market. This means any continued or ongoing cross-hiring can cast doubt on whether an agreement’s true intention was to allocate the relevant labour market.

Leniency applications have declined over the last decade, and particularly since the DOJ announced changes to the leniency programme in 2022. The 2022 revisions raised costs, or perceived costs, associated with applying for leniency, and created the perception that the DOJ would be less favourable towards leniency applicants moving forward. Leniency applicants also face significant civil exposure from follow-on litigation and significant administrative burdens of responding to investigations in multiple jurisdictions. Additionally, Type B leniency, which may be available when a company is not the first to self-report, no longer presumptively protects current directors, officers and employees. This modified approach risks putting the company and its people at odds with each other, which can greatly disincentivise companies from seeking leniency and offering co-operation. 

There also appears to be less cartel behaviour, as industries, companies and individuals have learned the hard lessons of the enormous cost of cartel violations. Technological developments may also be helping those who are still engaging in unlawful conduct hide their activities more effectively.

Early in the 2000s the Antitrust Division shifted its priority toward large international cartels with the uncovering of the auto-parts cartel. This was the most significant and wide-ranging cartel investigation ever conducted by DOJ. As a result, 85% of corporations fined at least USD10 million between 1994 and 2018 have been foreign companies. More recently, the Division has had more of a domestic focus, targeting a range of allegedly anti-competitive conduct related to labour market collusion. The Division continues to co-operate and work with enforcers from around the world to investigate, deter and prosecute cartel schemes but it does not favour or pursue one type of cartel investigation over another, and has not released recent data on cross-border versus domestic cartel investigations.         

ESG collaborations are another area where increased investigative activity could be seen. Past antitrust enforcers have consistently taken the position that ESG co-ordination carries antitrust risks, but the federal enforcement agencies have not brought ESG-related actions. At the state level, attorneys general have filed ESG-related lawsuits, including two major cases in 2024. One lawsuit involved allegations that efforts by private equity companies to pressure coal companies to lower carbon emissions constituted anti-competitive conduct; the other alleged truck manufacturers engaged in an industry-wide conspiracy to phase out internal combustion vehicles in violation of the antitrust laws.

Inflation can put margin pressure on sellers, thus increasing incentives to collude. Given the inflationary environment of the last few years and lingering supply chain issues, market conditions are relatively conductive to cartel behaviour. In dealing with this, the Antitrust Division has been proactive about investigating those who attempt to exploit supply chain disruptions to engage in collusive conduct. Recently, several US government agencies have also launched inquiries into industries with key roles in the supply chain or prone to inflation, including most recently a civil investigation into major egg producers to address concerns about market manipulation of egg prices in the United States.