With the appointment of the new head of the Antitrust Division of the U.S. Department of Justice now in place, companies and practitioners alike are eagerly awaiting a mission statement from the agency with respect to U.S. criminal antitrust enforcement. By any measure, the three-decade-long wave of criminal antitrust enforcement waned during the prior administration. See, e.g., Todd S. Fishman and David C. Esseks, Criminal Antitrust Enforcement (Chapter 1) at §1.02[4], White Collar Crime: Business and Regulatory Offenses, Law Journal Press (2019 rev. ed.). In addition, President Biden’s July 2021 executive order on promoting competition in concentrated U.S. markets made only passing reference to cartel activity. So the question remains whether the agency’s present focus on single-enterprise market dominance in a number of domestic markets, including the information technology, agriculture and health care sectors, will displace the past emphasis on multi-firm cartel conduct.

As the answers begin to emerge in the new year, two active criminal prosecutions by the Antitrust Division are likely to frame any renewed priority on criminal enforcement. One case involves the first trial in a set of criminal indictments in the District of Colorado charging fourteen executives with participating in a scheme among some of the country’s largest poultry producers to fix the price of broiler chicken products. There, the trial court declared a mistrial after the federal jury remained deadlocked and failed to return a verdict as to all ten defendants. The second case involves the labor markets and the Antitrust Division’s first criminal wage-fixing case. If anything, these cases augur for the aggressive use of criminal enforcement to expand the categories of business conduct subject to per se condemnation under the antitrust laws.

First Principles

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