Cartels 2026 Comparisons

The primary legal basis for challenging cartel-related conduct in the United States is Section 1 of the Sherman Act, which outlaws “[e]very contract, combination... or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations”. This law prohibits collusion between horizontal market participants, such as price fixing, wage fixing, bid rigging and market allocation.

Cartel violations can be charged alongside other violations, such as monopolisation offences under Section 2 of the Sherman Act and fraud or obstruction-of-justice-related offences under Title 18 of the US Code.

In the United States, the Department of Justice’s Antitrust Division (DOJ or “the Division”) and the Federal Trade Commission (FTC) share responsibility for civil enforcement of the federal antitrust laws. DOJ maintains responsibility for criminal antitrust enforcement. Generally, DOJ reserves its criminal enforcement authority for “per se” violations, such as price fixing, bid rigging and market allocation agreements. Under certain circumstances, DOJ may also bring criminal charges under Section 2 of the Sherman Act, which prohibits monopolistic conduct.

Corporations can face fines of up to USD100 million or alternatively, twice the gain or loss from the crime, whichever is greater. Individuals may be penalised with fines of up to USD1 million and/or face a prison sentence of up to ten years if found guilty of violating the antitrust laws.

Although state attorneys general have rarely pursued criminal cartel prosecutions on their own, Ohio brought such an action in early 2026 involving a “shill bidding” scheme. In the last decade, New York has also brought two cases alleging bid rigging schemes, with one ending in an acquittal after trial and the other with a guilty plea. California recently adopted legislation increasing criminal penalties for violations of the Cartwright Act, the state’s analogue to the Sherman Act, and similar legislation is under consideration in New York and other states. Given the variance and rarity in state criminal practice, this guide focuses on federal cases unless stated otherwise.

In the United States, Sections 4 and 16 of the Clayton Act provide for a private right of action to challenge cartel behaviour and its effects. Under the law, private plaintiffs may recover treble damages and attorney fees, and may also enjoin unlawful conduct.

Private plaintiffs must meet certain requirements to maintain standing:

• antitrust injury – the plaintiff’s injury must be one that results from anti-competitive behaviour (ie, the type of loss that the antitrust laws were meant to prevent, not mere competition);
• causation – the plaintiff’s injury would not have occurred but for the defendant’s unlawful behaviour; and
• damages – the plaintiff suffered a loss as a result of the defendant’s behaviour, such as overcharges.

Private plaintiffs must also meet the direct purchaser requirement to sue; that is, indirect purchasers harmed by anti-competitive conduct further up the chain of commerce cannot seek damages under federal law. However, many states maintain repealer statutes that allow indirect purchasers to obtain relief in court.

Cartel conduct refers to agreements among competitors to fix prices, fix wages, rig bids or allocate markets in violation of Section 1 of the Sherman Act. These types of agreements are considered “per se” illegal, meaning they are presumed to harm competition and condemned without further examination of anti-competitive effects.

Very few industries or practices are exempt from scrutiny under Section 1 of the Sherman Act. In limited circumstances, Congress has enacted statutory antitrust exemptions. For example, agricultural producers are granted a limited exemption to join co-operatives to market products and set prices collectively. Similarly, the National Labor Relations Act provides an exemption to labour union activities related to collective bargaining including strikes, picketing, and negotiations regarding wages and working conditions.

Some activities have been deemed exempt from antitrust scrutiny based on constitutional principles. For example, under the Noerr-Pennington doctrine, collective efforts to petition the government are immune from antitrust scrutiny under the First Amendment of the US Constitution. Similarly, professional baseball has a longstanding antitrust exemption rooted in constitutional principles.

The statute of limitations for criminal cartel cases is five years. The statute of limitations typically begins to run from the last unlawful act. All acts in furtherance of the cartel are actionable so long as the final act occurred within the five-year limitations period, even if earlier acts extended beyond the five-year time limitation. Generally, tolling doctrines do not apply in criminal cartel cases, though parties sometimes voluntarily toll the limitations period through agreements with the government.

For civil claims, the statute of limitations is four years. The statute can be tolled in civil claims. If the cartel was fraudulently concealed, the statute of limitations is tolled and does not begin to run until the plaintiff discovers the violation.

The Foreign Trade Antitrust Improvements Act (FTAIA) outlines the extraterritorial reach of the Sherman Act. The FTAIA generally provides that foreign conduct is beyond the scope of Sherman Act unless the conduct has a direct, substantial, and reasonably foreseeable effect on US commerce. This means that purely foreign conduct may fall within US jurisdiction if the conduct has the requisite effect on US prices.

Principles of international comity act as a check on the extraterritorial reach of US antitrust law. The contours of these principles have been defined through case law.

In limited circumstances, comity principles may preclude antitrust claims where the challenged foreign conduct is mandated under foreign law. For example, a US court vacated a price-fixing judgment against two Chinese exporters of Vitamin C, finding that Chinese law effectively required defendants to engage in the challenged conduct. See In re Vitamin C Antitrust Litig., 8 F.4th 136 (2d Cir. 2021).

Principles of comity may be invoked when a US court is asked to enforce a foreign judgment. Courts make determinations regarding the enforcement of foreign judgments on a case-by-case basis, based on a number of factors including whether the foreign court had personal and subject matter jurisdiction over the parties and claims at issue, whether the foreign judgment is final, and whether the judgment runs contrary to US public policy.

DOJ remains active in investigating and seeking to prosecute all criminal antitrust violations. In 2025, DOJ initiated nearly 100 criminal investigations. The number of open grand jury investigations has more than doubled from a decade ago – from 72 in 2015 to 167 in 2024. DOJ has also focused on individual accountability, seeing it as central to its deterrence model. While data regarding the sources of DOJ’s cases is not publicly available, anecdotal evidence suggests that a significant portion of its cases are self-originated. Based on a review of recent DOJ press releases and case filings, approximately half of DOJ’s cases over the past two years involved bid rigging, and the majority of its cases involved purely domestic conduct.

Government authorities publish a number of materials relating to cartel conduct and enforcement in the United States. These include the following.

• DOJ Justice Manual – in particular, Title 7-3.000 describes internal policies and procedures related to criminal enforcement of federal antitrust law.
• Price Fixing, Bid Rigging, and Market Allocation Schemes: What They Are and What to Look For – most recently updated in 2021, this DOJ-published document describes the most common antitrust violations and describes the circumstances that may indicate anti-competitive collusion.
• Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations – DOJ guidance document for prosecutors when making charging and sentencing decisions (revised in 2024).
• Antitrust Guidelines for Business Activities Affecting Workers – guidance describing the federal agencies’ approach to assessing whether business practices affecting workers violate the antitrust laws, jointly published by DOJ and FTC.
• Antitrust Enforcement Guidelines for International Operations – DOJ-published guidance for businesses engaged in international operations.
• Antitrust Guidelines for Collaborations Among Competitors – jointly published by DOJ and FTC, this document was designed to offer guidance on competitor collaboration. Originally published in 2000, these guidelines were withdrawn in late 2024. In February 2026, the agencies launched a joint public inquiry seeking input on these guidelines. The comment period closed on 21 May 2026.
• DOJ Corporate enforcement website – website offering policy guidance, maintained by the DOJ Criminal Division.
• DOJ Leniency Policy – website describing the procedures and process for corporations who make voluntary self-disclosures and co-operate in criminal antitrust investigations.
• DOJ Whistleblower Rewards Program – website describing the procedures and process for individuals to report antitrust crimes and related offences.

Information related to potentially anti-competitive conduct may come to DOJ through several sources. In some instances, DOJ may receive information through its leniency or whistle-blower programmes. DOJ may also obtain tips, referrals or evidence from other divisions within DOJ, or from federal law enforcement agencies such as the FBI or the US Postal Inspection Service. Third parties, including industry participants, may also offer intelligence to DOJ. The Division also monitors public sources for evidence of anti-competitive conduct, including social media, news reports and public communications made by companies and their representatives. Finally, DOJ has launched a team of specialised investigators to carry out investigations or liaise with other federal law enforcement agencies.

Based on the strength of the evidence, DOJ may open a preliminary investigation to explore the potential violation further. During this time, DOJ may interview key witnesses, review documentary evidence and entertain evidence from leniency applicants and whistle-blowers. DOJ may also direct federal agents to conduct drop-in interviews to elicit information from witnesses.

If further investigation is warranted, DOJ will begin issuing grand jury subpoenas to compel the production of documentary evidence from alleged cartel participants. Depending on the strength of the initial evidence, DOJ may proceed directly to the grand jury investigation phase without a preliminary investigation.

DOJ may execute search warrants to obtain evidence from business premises and private residences. These searches, often carried out unannounced and early in the morning, are sometimes referred to as “dawn raids”. Such searches are effectuated by federal law enforcement agents pursuant to a judicial warrant, which defines the scope of the search and the categories of material subject to seizure. Agents may commence a search upon arrival and are not required to wait for counsel to be present.

During a dawn raid, agents may seize documents, hard drives, mobile phones and other physical records. Companies and individuals are required to allow the agents to conduct their search, and to provide access to relevant materials, devices and systems that may contain pertinent information. This will likely include computers, email accounts and mobile devices. However, agents’ access is limited to those materials which are related to the subject matter of the investigation as described within the search warrant. The government is generally unable to compel an individual to furnish the password to access a device due to the Fifth Amendment, though the government may be able to obtain court authorisation to unlock a device through biometric means such as a fingerprint or facial recognition.

Throughout the dawn raid, agents may attempt to conduct on-site interviews with individuals to obtain additional information. Individuals are not required to submit to interviews, and may decline to answer questions. The right to remain silent is constitutionally protected by the Fifth Amendment.

Individuals and counsel may monitor agents’ activity throughout the course of the dawn raid to record all produced documents and ensure that the search does not exceed its permitted scope. However, individuals and counsel must not obstruct the search.

Companies and individuals have a duty to preserve potentially relevant evidence – including stored communications, documents, and data – as soon as an investigation or litigation becomes reasonably anticipated. This may occur following a dawn raid or the issuance of a grand jury subpoena. After this point, companies and individuals must not only refrain from destroying, altering or concealing evidence, but must also take affirmative steps to suspend automated file deletion practices to preserve evidence.

Failure to preserve information may lead to criminal obstruction of justice charges. Additionally, it may result in the issuance of an adverse inference instruction at trial, directing a jury to assume the destroyed evidence would have been unfavourable to the party that destroyed it.

In the United States, subjects involved in criminal proceedings have a right to counsel. Companies and individuals may obtain legal counsel before or during the investigatory process. Company counsel may represent an employee if the relevant parties consent to the joint representation.

In the early stages of an investigation, defence counsel must quickly master the facts of the case by reviewing documents, conducting industry research and interviewing key witnesses. Information gathered through this internal investigation is used to develop a defence strategy and to position the client to DOJ.

Individuals, such as employees of a company under investigation, may choose to be represented by separate counsel to avoid potential conflicts of interest. Oftentimes, companies pay to obtain separate counsel for their employees to ensure that their employees receive experienced representation and to facilitate potential joint defence efforts.

Generally, individuals sit for DOJ interviews on a voluntary basis and maintain their right to counsel during these meetings. DOJ may, but is not required to, permit company counsel to participate in an interview of an employee who is separately represented. Individuals also maintain the right to assert their Fifth Amendment privilege against self-incrimination and to refuse to answer questions from investigators.

DOJ may obtain evidence to prove a cartel offence through a number of channels. 

• DOJ may obtain documentary evidence through:
1. judicial search warrant; and
2. grand jury subpoena or Office of Inspector General subpoena to compel the production of documents, communications and data.
• DOJ may procure non-documentary evidence through:
1. grand jury testimony;
2. witness interviews; and
3. proffers from defence counsel.
• Whistle-blowers and leniency applicants may also offer evidence in the form of documents, data, recordings and testimony.

No singular rule defines the government’s procedural obligations when collecting evidence through these means. However, DOJ is constitutionally required to ensure that the scope of any search or seizure is reasonable and relevant to the violation under investigation.

Attorney-client privilege and the attorney work product doctrine offer strong protections for individuals working with legal counsel in the United States. 

The attorney-client privilege protects confidential communications between a client and their attorney made for the purpose of seeking legal advice. In the context of a company, the privilege generally belongs to the corporation rather than the individual employees who speak to counsel; notably, it is the corporation that holds the right to waive this privilege, not the employee. Communications with in-house counsel and foreign lawyers are privileged, so long as those communications were made in the context of seeking legal advice. See Anwar v Fairfield Greenwich Ltd., 982 F. Supp. 2d 260, 264 (S.D.N.Y. 2013). Maintaining confidentiality is important, as the privilege may be inadvertently waived if communications occur in the presence of third parties not acting as agents for the attorney. The privilege covers the communication itself, not the underlying factual information conveyed through those communications.

The work product doctrine exempts from discovery materials prepared in anticipation of litigation, including memoranda prepared following client interviews, drafts of briefs written in preparation for trial, and prepared documents outlining litigation strategies.

Other privileges may also be relevant for cartel matters, including the Fifth Amendment’s privilege against self-incrimination, which may be asserted by individuals during interviews and while offering testimony.

In a cartel investigation, it is rare to resist an initial request for information in the form of a grand jury subpoena. A subpoena recipient has a legal obligation to comply, and outright refusal would result in a contempt finding by the court, which may result in the issuance of fines or imprisonment. This is an inadvisable strategy because under US case law, a grand jury has broad authority to investigate the potential commission of a crime, including cartel violations. For this reason, it is rare for a party to successfully quash a subpoena. Instead, it is far more common for parties to engage in negotiations with DOJ to narrow the scope of an information request.

DOJ may occasionally make a voluntary request for information in a matter. Because the government cannot enforce such requests, parties may narrow or decline such requests. For strategic reasons, however, it may be advisable to comply with a voluntary request to maintain a co-operative posture with DOJ.       

Subjects of enforcement matters have certain mechanisms to designate and protect confidential or proprietary information, primarily through established legal privileges and doctrines. For example, attorney-client privilege may protect confidential communications between a client and their attorney made for the purpose of seeking legal advice, and such materials would not have to be provided to the government. The work product doctrine similarly protects materials prepared in anticipation of litigation (including investigations).

Additional protections are granted for information obtained solely through a grand jury subpoena. The rule protecting the secrecy of grand jury proceeding generally prevents the government from disclosing subpoenaed materials to third parties outside of criminal discovery. This information is also protected from public disclosure under the Freedom of Information Act.

Parties may seek additional protections through the court to secure the confidentiality of their information. For example, in response to concerns raised by a third party responding to a document subpoena, the government may seek a protective order for that party’s materials if they end up being produced in criminal discovery.

In criminal antitrust matters, defence counsel may raise legal and factual arguments at various points throughout the investigative process. Most notably, defence counsel may provide attorney proffers to the government. The proffer serves as a strategic “audition” through which defence counsel may present a factual narrative developed through their own investigatory process. DOJ will take this opportunity to learn from defence counsel and to weigh the value of prosecuting the subject of investigation, versus offering some form of leniency or immunity in return for full co-operation. These presentations are generally given orally and may occur at multiple points throughout the investigation as DOJ and defence counsel continue to uncover relevant information.

Defence counsel are occasionally invited to provide “white papers”, which are written submissions to DOJ summarising the arguments against prosecutions relating to a specific legal issue, such as an element of proof or jurisdiction. Counsel may elect to make such submissions unilaterally, though DOJ’s receptivity to such advocacy will vary with the maturity of the investigation. Written submissions to DOJ could be discoverable in a civil action.

Before proposing criminal charges to the grand jury, DOJ will generally provide the target of an investigation with an opportunity to meet with prosecutors and their management, also known as a “pitch” meeting. The targets of an investigation do not have a right to such pre-indictment conversations, but if afforded a meeting, defence counsel are encouraged to present all factual, legal, and policy arguments against indictment in good faith.

Individuals with knowledge of the industry or the alleged cartel may also sit for interviews with DOJ throughout the investigatory process. Such interviews are not voluntary, and prosecutors may agree to provide the interviewee limited immunity for self-inculpatory statements during the interview. The goals of these interviews are similar to a proffer.       

DOJ maintains a robust leniency programme, which has historically operated as its most powerful detection tool and most compelling incentive for self-reporting. Through the programme, companies and individuals involved in criminal antitrust offences may self-report their participation in the crime and potentially avoid convictions, fines and incarceration.

The core requirements for leniency are stringent. To qualify, a corporate or individual conspirator must be the first to report the crime to DOJ. They must also fully co-operate with DOJ’s ensuing investigation and provide timely, truthful, continuing and complete co-operation. The applicant must not have been the leader of the cartel and must not have coerced others to participate in it. Ultimately, the applicant must also admit wrongdoing.

To preserve an applicant’s place in line, DOJ will issue a marker when an applicant self-reports a potential violation. The marker allows the applicant a limited period to complete an internal investigation while preserving their priority for leniency. A marker is “perfected” – ie, the applicant’s place is secured, when it has provided sufficient information to confirm that it meets the requirements under the leniency programme. Once DOJ determines the marker has been perfected, it will issue a conditional leniency letter to the applicant.

While DOJ does not publish statistics regarding leniency applications, anecdotal evidence suggests that companies continue to take advantage of the programme’s benefits.

The requirements to receive leniency under the Antitrust Division Leniency Program can be found online. If those requirements are satisfied, a company and its employees can earn full immunity from prosecution for an antitrust violation and acts or offences in furtherance of that violation.

In July 2025, DOJ launched the Whistleblower Rewards Program for individuals to voluntarily provide information about antitrust crimes and related offences. Through the programme, whistle-blowers who report original information that results in successful prosecution and fines of at least USD1 million are eligible to receive a reward ranging from 15–30% of the amount collected.

DOJ has observed a surge in whistle-blower submissions, resulting in a substantial number of credible tips related to criminal anti-competitive behaviour. Anecdotal evidence suggests that many whistle-blower counsel are actively involved and explicitly encouraged by DOJ to engage with the programme.

While the reported conduct must “affect” the US Postal Service to qualify for the whistle-blower payment, officials have emphasised that they are adopting a broad interpretation of this statutory requirement. For example, in a recent matter, this requirement was satisfied when conspirators used the US mail to carry out the scheme, even though a public tender was not involved.

DOJ’s published guidance regarding corporate compliance programmes encourages companies to have a reporting mechanism for employees to report potential antitrust violations confidentially and without fear of retaliation.

DOJ may directly current and former company employees during a criminal investigation. The primary process for compelling testimony is through grand jury subpoenas, which can require individuals to produce documents or testify under oath. Before a formal grand jury appearance, the government often conducts informal interviews with potential witnesses and their counsel to assess the value and truthfulness of their expected testimony.

DOJ also co-ordinates with law enforcement agencies such as the FBI to conduct voluntary “knock-and-talk” interviews with current or former employees. During questioning, the government may ask an interviewee to provide relevant documents or serve a subpoena for documents.

DOJ may also execute search warrants on individuals to obtain evidence from personal devices and online accounts. Constitutional and procedural guidelines apply to DOJ when issuing subpoenas, to protect individuals from overbreadth or harassment. Similarly, the government must make an application to the court when seeking a search warrant, and parties may file a motion to suppress evidence resulting from a search on various procedural or legal grounds in a subsequent prosecution.

Most often, DOJ obtains documentary evidence directly from the subject/target company through a grand jury subpoena. Search warrants may also be executed to obtain evidence. These information-gathering tools are generally utilised early in an investigation, and may result in the production of thousands of documents including emails, text and chat messages, and company documents. Based on the volume and potential scope of the subpoena requests, compliance may take several months and involve a negotiation process with the government.

Subpoena recipients may move to quash or modify the subpoena if compliance would be unreasonable or oppressive.

DOJ is limited in its ability to obtain evidence from companies and persons located outside of its jurisdiction. Because grand jury subpoenas generally cannot reach evidence located outside the United States, prosecutors must rely on alternative methods to obtain such evidence. For example, where there is a mutual legal assistance treaty (MLAT), DOJ may submit a formal document request to another sovereign, though this is a complex and lengthy process.  It may also be possible for DOJ to gather foreign-located evidence through informal requests. Where appropriate, DOJ may seek information from US-based branches or representative offices of foreign targets.

The CLOUD Act gives US law enforcement agencies the authority to seek electronic evidence from US-based service providers regardless of whether the data is stored on servers outside the United States.

There is significant co-operation and co-ordination between US agencies to enforce criminal antitrust laws. Most notably, DOJ, US Attorneys’ Offices and various federal Inspectors General collaborate through the Procurement Collusion Strike Force (PCSF) to target antitrust crimes and related fraudulent schemes impacting government procurement at federal, state and local levels. DOJ has also partnered with the US Postal Service to support the Whistleblower Rewards Program. DOJ also receives tips and formal referrals from other government agencies that lead to criminal investigations.

An exception to the grand jury secrecy rules allows DOJ to share information with other government officials when there is an investigative need.

DOJ regularly engages in significant co-operation and co-ordination efforts with enforcement agencies in other jurisdictions. This collaboration is facilitated though MLATs, co-operation agreements, Memoranda of Understanding (MOUs) and informal exchanges of information. Through these tools, jurisdictions may be able to share investigative files, co-ordinate search warrants and dawn raids, and facilitate fugitive recovery.

In the United States, criminal antitrust cases are brought by DOJ in federal court. DOJ will obtain an indictment by presenting a potential case to a grand jury, composed of citizens who convene to determine whether probable cause exists to believe a crime was committed. If an individual or company is indicted by a grand jury, the case will proceed to trial.

In a criminal case brought in federal court, the defendant has a right to review information that DOJ intends to use at trial. The government must also disclose to the defendant any exculpatory evidence in the government’s possession, including information which may reduce the defendant’s potential sentence or which a jury may use to infer the defendant’s innocence. 

The government must prove the defendant’s guilt beyond a reasonable doubt. The jury is the ultimate finder of fact in making this determination, and its verdict must be unanimous.

Prior to trial, the defendant may seek to dismiss the case on grounds related to the statute of limitations, grand jury defects, or other challenges to the sufficiency of the indictment. The defendant may also move to suppress evidence obtained in violation of his rights, or to limit the admission of certain evidence at trial.

The federal government, state attorneys general and private parties may file civil claims against companies and individuals for anti-competitive behaviour under Section 1 of the Sherman Act. Plaintiffs may seek damages and equitable relief, determined under a preponderance-of-the-evidence standard. Most often, the plaintiff will opt to have their case heard by a jury rather than agreeing to a bench trial.

Important pre-trial procedures include extensive discovery, governed by the Federal Rules of Civil Procedure, which permits oral and written depositions, interrogatories, requests for admission and the production of documents and electronically stored information.

At times, civil cases may be stayed to prevent interference with ongoing criminal investigations.

In criminal and civil cases, plaintiffs and defendants may utilise experts to provide testimony and analysis. Most often in criminal antitrust matters, parties rely on testimony from economists to describe industry mechanics and pricing behaviour in the market. In civil matters, expert economists may also provide opinions on class certification, liability and damages. For the defence, economists can be vital in introducing plausible reasons for conduct and pro-competitive justifications that rebut an inference of conspiracy.

DOJ may conduct civil proceedings against a defendant in parallel with a criminal investigation provided that certain procedural requirements are met. However, civil cases may be stayed to prevent interference with an ongoing criminal investigation.

Although prosecutors may use evidence obtained in a civil proceeding in a grand jury investigation, the reverse is less common due to the limitations imposed by grand jury secrecy. It is common for DOJ to charge multiple conspirators in the same charging instrument.

While DOJ has the authority to prosecute criminal antitrust crimes, federal district courts determine individual sanctions and fines following a conviction or guilty plea.

DOJ must abide by established procedural safeguards to protect a defendant’s rights and ensure fairness. Although prosecutors may make sentencing recommendations based on advisory guidelines, it is the court that makes the final sentencing determinations.

Plea bargaining and settlement are common in criminal antitrust cases. These processes typically occur at various stages, from pre-indictment (eg, through leniency applications) to post-indictment (but before trial). For example, a defendant may negotiate a plea agreement through which he forfeits trial and pleads guilty to criminal charges. In other cases, DOJ will offer a deferred prosecution agreement (DPA), through which the government files criminal charges but holds them in abeyance pending full co-operation with the investigation and an agreement to certain compliance and remedial measures. Finally, a defendant may enter into a non-prosecution agreement (NPA) with the government, which may similarly impose remedial or co-operation obligations, but where no charges are filed.

The benefits of settling through a DPA or NPA are significant for defendants. Such agreements allow them to avoid criminal convictions, mitigate financial penalties and achieve greater certainty in resolution when compared to the risks of trial.

There are significant collateral effects in civil matters if liability is established or admitted in criminal antitrust matters.

Firstly, a criminal conviction or judgment for an antitrust violation can be used as prima facie evidence of a defendant’s guilt in subsequent civil proceedings. This means that once a final criminal judgement is reached, it may be introduced as evidence against the defendant in follow-on civil claims. This makes it significantly easier for private plaintiffs (including state and local governments) to pursue their claims.

Secondly, individuals and companies may face suspension or debarment from doing business with the government because of a criminal conviction. This point is particularly salient for cases arising through the Procurement Collusion Strike Force, which often involve schemes impacting government procurement.

These collateral effects can often be avoided or significantly mitigated through plea bargaining or settlement by influencing the scope the of the criminal judgment.

The Sherman Act provides a statutory maximum punishment for individuals of ten years in prison and a fine of up to USD1 million. A corporation can be fined up to USD100 million. Under the Alternative Fines Act, the fine can be increased up to twice the gross pecuniary gain or loss, though may require the jury to make additional findings regarding loss.

Under US law, the sentencing judge has discretion to impose a sentence no greater than necessary after considering the seriousness of the offence, the defendant’s history, the need to avoid unwarranted sentencing disparities, and the sentencing range calculated under the US Sentencing Guidelines Manual. In a contested federal sentencing proceeding, the defendant, government and a representative of the US Probation Office submit recommendations on an appropriate sentence, which is ultimately decided by the judge.

Between 2020 and 2024, total criminal fines and penalties exceeded USD1 billion. 2017 marked the peak for total fines imposed, at USD2.78 billion. Between 2020 and 2025, the average prison sentence for individuals was seventeen months. In 2025, individuals who have served custodial sentences spent an average of 766 days in jail, an increase from the prior year’s average of 150 days. This trend is in line with the Division’s recent messaging emphasising personal accountability. The maximum prison sentence that may be imposed under the Sherman Act is ten years.

Although non-US citizens may be extradited to the United States for cartel-related behaviour, the practice is rare. In certain cases, the Division has agreed to permit a defendant to serve a portion of their sentence in another jurisdiction as part of a plea bargain.

DOJ will consider the effectiveness of a company’s compliance programme when making charging decisions and when recommending monetary penalties to the court. DOJ outlines this guidance in Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations. Under these guidelines, DOJ will review the adequacy and effectiveness of the company’s compliance programme, the company’s remedial efforts to implement an effective compliance programme or improve its existing programme, resources dedicated to antitrust compliance, the strength of reporting mechanisms, and compliance incentives and discipline, among other factors.

Although a sentencing court has discretion to order defendants to pay restitution to victims (eg, for overcharges) for criminal antitrust violations, it will often leave such restitution to be resolved in follow-on litigation.

Private litigation plays a significant role in consumer redress for antitrust matters. Following a conviction or guilty plea in a criminal antitrust case, private plaintiffs often introduce this as prima facie evidence of a defendant’s guilt in a subsequent private civil proceeding. Private parties may then recover treble (triple) damages for the antitrust injury they suffered.

Defendants may appeal both civil and criminal enforcement proceedings in the United States.

In criminal matters, it is common for a defendant to appeal the district court’s rulings to a higher court. The higher court will review questions of law de novo (no deference), and review evidentiary rulings and sentencing decisions for abuse of discretion (high deference). Higher courts give substantial deference to lower courts’ factual findings, unless clearly erroneous. Defendants have a right to appeal criminal convictions and sentencing decisions. However, defendants that enter into plea deals with the government may waive this right as part of the bargain.

From initiation to resolution, cartel enforcement investigations may take several years to complete. In particular, the investigative phase may be extensive, due to the numerosity of cartel participants, the long-running nature of cartel agreements, and cartel participants’ use of covert methods to conceal illegal behaviour.

There is a private right of action for companies and individuals to seek civil redress for cartel conduct, including cartel violations previously prosecuted by DOJ. Unlike in criminal cases, where the government is the plaintiff, a private civil case is brought by direct or indirect purchasers. Private civil cases also differ in the burden of proof required. Unlike the criminal liability standard (beyond a reasonable doubt), civil plaintiffs need only prove their case by the lower preponderance-of-the-evidence standard. Additionally, unlike DOJ, which needs only to prove defendant’s participation in an unlawful agreement, private plaintiffs must prove injury and damages to obtain monetary compensation.

The available relief in private civil actions for cartel conduct differs significantly from criminal proceedings. First, only the government may seek carceral sentences against individuals, and injunctive relief is generally not sought in a criminal prosecution but common in civil actions. Second, both the government and private plaintiffs may seek monetary penalties (fines and damages, respectively) but the calculation methodologies differ. In criminal cases, the fine is calculated based on the volume of commerce affected, meaning the amount of a defendant’s sales impacted by the misconduct. The fine may shift up or down depending on culpability and co-operation. In civil cases, damages are typically calculated based on the alleged overcharge and then trebled pursuant to Section 4 of the Clayton Act. Third, unlike criminal cases, civil cases impose joint and several liability on the defendants, meaning that defendants are collectively and individually liable for the full measure of damages.

Private plaintiff-led actions can be styled as “class actions” in the United States. Through class actions, groups of plaintiffs may seek relief in a common proceeding. To bring a class action lawsuit for violations of the Sherman Act, plaintiffs must satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure. Under this rule, the plaintiff class must be sufficiently large (numerosity), individuals’ claims within the class must share questions of law or fact (commonality), the named plaintiff’s claim must be similar to those of the rest of the class (typicality), and the class representatives and their counsel must be capable of protecting the interest of all absent class members (adequacy). The nature of the class action – whether or not damages are sought – may add requirements.

Consumer associations and public interest groups are unlikely to have standing because they are not market participants.

Under the Illinois Brick doctrine, only direct purchasers have standing to bring damages claims under federal antitrust law. This doctrine was established in order to prevent duplicative recoveries. There are a few exceptions Illinois Brick, including allowing an indirect purchaser to sue if they have a pre-existing, fixed-quantity contract with a direct purchaser. Additionally, a majority of states have enacted Illinois Brick repealer statutes, which permit indirect purchasers to seek damages for antitrust violations under state law.

Under US law, there is no “pass on” defence to liability. However, in Illinois Brick repealer states, a defendant may argue that a direct purchaser passed on any alleged overcharge such that they suffered no damages.

Evidence from governmental investigations or proceedings may be admissible in private litigation, subject to the Federal Rules of Evidence. For example, a guilty plea or guilty verdict is admissible under Section 16 of the Clayton Act. Likewise, deferred prosecution agreements may be admissible against a defendant because their statements in the agreement are considered admissions by a party opponent under Federal Rule of Evidence 801. Other evidence created during a criminal investigation may also be admissible if a civil litigant is able to access it, but this is rare because grand jury proceedings are secret.

Whether a private plaintiff’s antitrust claims will proceed to trial and jury verdict, as opposed to dismissed or settled, depends on a number of factors. Factors will include the strength of the plaintiff’s legal claims, the cost of litigation and the parties’ risk tolerance, among other reasons. Private antitrust cases – especially class actions – are often resolved prior to trial, either through an early motion to dismiss, a motion for summary judgment or a negotiated settlement. The percentage of class action antitrust cases that proceed through trial is likely in the low single digits.

The discovery process begins with compulsory duties to exchange information under Federal Rule of Civil Procedure 26, including naming and locating the persons who are likely to possess discoverable information, locations and categories of discoverable information, and calculations of damages sought. From there, parties have the right to request documents so long as they relate to their claims or defences, are non-privileged, and the request is proportional to the needs of the case.  Parties often send interrogatories seeking written answers regarding claims and defences, and seek to depose witnesses. Finally, discovery may include requests for admission, asking the other party to admit to facts, application of law to fact, opinions about either, or the authenticity of documents described.

Separately, the case may involve the creation and exchange of expert reports, followed by depositions of the experts, and rebuttal reports. Parties employ experts to support or undermine the claims or defences in the litigation. For example, a plaintiff’s expert may create a model to show common impact from alleged price fixing.

The timeframe of litigation, from the inception of the claim to its resolution, will vary based on the factors described above and the schedule determined by the court. Complex matters with active dockets may last can last for several years (ie, three to five years). Although settlement may hasten the conclusion of litigation, parties may not always choose to do so prior to the start of trial.

When plaintiffs win an antitrust case, defendants are obligated to pay for plaintiffs’ legal fees. In class actions, attorneys’ fees are most often calculated by one of two methods. In common fund cases (where the class is awarded a fixed amount to be distributed to all group members), fees are calculated as a percentage of the fund, typically between 25% and 35%. Under the lodestar method, judges calculate attorneys’ fees by multiplying the reasonable number of hours worked by the attorney by a reasonable hourly rate for that attorney. Payout under both methods may be adjusted by the court.

Under US federal and state law, plaintiffs are not obligated to pay defence counsel’s fees if they lose, assuming that the lawsuit was not frivolous.

Private civil litigants may appeal final decisions (and sometimes, interlocutory orders) in the United States. Appellate courts generally give substantial deference to lower courts’ factual findings (reversing only if the finding is clearly erroneous), while legal conclusions are reviewed de novo, without deference to lower-court findings. An appellate court will only reverse procedural decisions if that decision was the result of an abuse of discretion.

While DOJ has brought various civil cases challenging information sharing as an antitrust violation, it does not criminally prosecute information sharing as per se unlawful.

In a recent statement of interest, DOJ reiterated its view that “information exchanges can soften competition” even when they are not simply a facilitating practice for another form of antitrust violation (eg, price fixing). Information sharing claims are handled under Section 1 of the Sherman Act, and may be condemned even if a third party facilitates the exchange. If the information exchange is a standalone claim, courts analyse the claim under the rule-of-reason standard. Under that standard, the exchange is unlawful if it creates substantial anti-competitive effects without redeeming pro-competitive value.

DOJ has said that there is no “checklist” to evaluate information sharing claims. Although DOJ and the courts consider a number of factors, including the likelihood the information will harm competition, the structure of the industry involved, the granularity of the data at issue, the age of the data exchanged, and whether the data is publicly available. Generally, information exchanges involving current pricing information or future forecasts are considered most likely to be anti-competitive.

Over the last several years, the rise of AI and algorithmic pricing practices has become a serious concern. DOJ maintains that the use of AI and algorithms can be punishable under a price-fixing theory of harm. DOJ recently settled its civil lawsuit against a software company allegedly using algorithmic pricing tools to fix rental prices using data collected from competing landlords using the software. Before reaching a civil resolution, DOJ even considered bringing criminal charges in the case.

DOJ’s aggressive posture in this area demonstrates its genuine concern about the advance of technology to shield potential price-fixing violations from their view. DOJ continues to file statements of interest in algorithmic cases, such as those involving the rental and hotel industries, urging per se treatment of the use of certain types of software to exchange information and create pricing uniformity.

In 2022, DOJ announced that it would resume bringing criminal prosecutions for monopolisation and subsequently secured individual guilty pleas in several cases. Under Section 2 of the Sherman Act, monopolisation claims come in three forms. First, monopolisation requires proof that the defendant (i) possesses monopoly power in a relevant market and (ii) rather than acquire or maintain that power through the development of a superior product, the result of business acumen or historic accident, undertakes conduct to wilfully acquire or maintain that power.

Second, attempted monopolisation requires proof that the defendant (i) engaged in anti-competitive conduct, (ii) with the specific intent to monopolise and (iii) the defendant took actions that were a substantial step toward committing the crime of monopolisation, and (iv) there was a dangerous probability to achieve that result.

Finally, conspiracy to monopolise requires proof of (i) a combination or conspiracy to monopolise, (ii) the defendant knowingly joined the conspiracy, and (iii) the conspiracy had a substantial effect on, or occurred within the flow of, interstate commerce.

The last five years have continued to show antitrust enforcers concerned about cartel behaviour in healthcare, public procurement, algorithmic pricing and labour markets. 

DOJ under the current administration has continued an aggressive enforcement agenda aimed at anti-competitive conduct harming ordinary citizens. For example, DOJ has continued to scrutinise the healthcare industry across administrations. DOJ is actively investigating potential criminal violations by a major healthcare provider’s pharmacy benefit manager entity.

Public procurement continues to be a hot spot, especially as the Antitrust Division’s Procurement Collusion Strike Force continues to find success in prosecuting criminal violations. Since its founding in 2019, the PCSF has opened more than 195 investigations and secured over 75 guilty pleas and convictions, including the only trial conviction in 2026 thus far.

DOJ has also kept focus on labour market violations and algorithmic pricing-related offences. DOJ secured a trial conviction in 2025 for a wage-fixing conspiracy in US v Lopez, securing a 40-month prison sentence and USD13.5 million in financial penalties. On the technological side, DOJ remains actively engaged in cases around the country through its statements of interest seeking to shape the way antitrust law addresses the use of algorithms and AI in pricing.

DOJ continues to emphasise that the use of ephemeral messaging systems is no excuse for failure to comply with one’s obligations to preserve evidence. DOJ has stated that a failure to preserve evidence may result in obstruction of justice charges or other sanctions. Last year, DOJ secured a guilty plea from a former military contractor who destroyed text messages during a pending investigation.

DOJ has brought criminal prosecutions involving “no poach” and other labour market violations, such as wage fixing. Naked “no poach” agreements, meaning those agreements that are separate from or not reasonably necessary to achieve the benefits of a larger and lawful collaboration between parties, are unlawful market allocations among purchasers of labour. Even “no poach” agreements that are reasonably necessary are not free from scrutiny, and may be challenged under the rule-of-reason standard. Despite prevailing in a wage-fixing trial last year, DOJ has not filed a new labour market prosecution since 2023, suggesting efforts to deter such conduct among employers have been successful.

While DOJ does not publish leniency statistics, anecdotal evidence suggests that leniency applications have trended toward domestic cartels in recent years. DOJ officials have reported that leniency applications increased to a decade-high in 2023 following a decline during the COVID-19 pandemic. The decline in cross-border resolutions suggests that leniency applications continue to be impacted by the threat of follow-on civil litigation and the burdens of applying in multiple jurisdictions, which may dampen incentives to report anti-competitive misconduct. 

DOJ has continued to make resource investments in cartel detection initiatives, such as its Whistleblower Rewards Program. DOJ also continues to be aggressive in detecting anti-competitive activity through the adoption of AI and other technological tools, including through its Data Analytics Project housed under the PCSF. Given the growing number of investigations initiated by DOJ each year, it is likely that ex officio investigations are a major component of its workload.

Domestic cartel investigations comprise a significant portion of DOJ’s matters, especially as the PCSF brings numerous investigations impacting public procurement with a distinct local focus. In 2022, for example, DOJ collaborated with other international enforcers on 13 cross-border investigations out of a total of 153 grand jury investigations. DOJ also established a collaborative effort with Canadian and Mexican antitrust enforcers to police anti-competitive behaviours related to the impending 2026 FIFA World Cup. DOJ remains interested in policing cartel activity abroad, and it is possible that investments in cartel detection will lead to more cross-border matters in the coming years.

The US antitrust laws cover all economic activities, including ESG initiatives, and it is no defence that the underlying conduct may be beneficial in other contexts. The current administration has continued to sound that message. Last year, the FTC and DOJ jointly filed a statement of interest in a civil lawsuit brought by several state attorneys general alleging that private equity companies colluded to pressure coal companies to lower carbon emissions.

The persistent inflation seen in the last five years has increased DOJ’s focus on potential collusion affecting supply chains. Following an Executive Order encouraging investigations into the food supply chain in late 2025, the FTC and DOJ formed a Food Supply Chain Security Task Force aimed at uncovering anti-competitive conduct in the meat processing, seed, fertiliser and food equipment markets. Given current economic stresses, markets remain potentially vulnerable to cartel behaviour.