Karen Hoffman Lent, left, and Kenneth Schwartz. Courtesy Photo

Introduction

Department of Justice (DOJ) cartel investigations have historically targeted corporate defendants. The current enforcement landscape, however, is increasingly focused on individual accountability and has evinced the Antitrust Division's willingness to embrace new and undertested approaches of ensuring competitive domestic markets. From a jury's conviction of a cartel in coastal Georgia, to the rising review of third-party algorithms, to a continuing emphasis on labor markets, we look at some of the latest developments in American cartel enforcement. 

The Current State of Cartel Enforcement

Cartel enforcement, especially of corporate defendants, has declined in recent years. Between 2022 and 2023, the number of defendant corporations dropped by nearly 80%, while the rate of individuals charged fell 29%. U.S. Department of Justice, "Criminal Enforcement Trends Charts." The DOJ collected $267 million in criminal penalties in 2023—a significant improvement over its 2022 total of $2 million, but nevertheless a far cry from the record $3.6 billion it accrued in 2015. Id. Furthermore, the DOJ suffered high-profile defeats in the prosecutions it did pursue. The Division has particularly struggled to obtain criminal convictions from juries—in 2023, jurors acquitted defendants in the no-poaching and wage-fixing cases United States v. Manahe and United States v. Jindal. The DOJ fared little better with judges last year. In United States v. Patel, a Connecticut district court granted the defendant's motion for judgment of acquittal, and in United States v. Brewbaker, the Fourth Circuit reversed a lower court's denial of the defendant's motion to dismiss. Both the Patel and Brewbaker courts found the DOJ's application of the per se rule overly broad, noting that the rule of reason standard applies unless there is "demonstrative economic evidence" of "manifestly anticompetitive effects." United States v. Brewbaker (4th Cir. 2023). 

Diminishing enforcement levels could potentially reflect changes to the DOJ's leniency policy. Whistleblowers frequently trigger cartel investigations, and many of the Antitrust Division's prosecutions have depended on leniency applications. In 2022, the DOJ made the application process more stringent, adding a requirement that applicants "promptly report" illegal activities to the Division upon discovery of such conduct. Press release, U.S. Department of Justice, "Antitrust Division Updates its Leniency Policy and Issues Revised Plain Language Answers to Frequently Asked Questions" (Apr. 4, 2022). The new condition introduces an element of uncertainty to the process, and leniency applications have declined since the DOJ announced these changes. However, these trends are consistent with a worldwide downward trajectory in leniency applications, so the exact effect of the revised policy is unclear.