1. Overview of the law and enforcement regime relating to cartels

In the United States, there are two major federal antitrust laws relating to cartels:

  • Section 1 of the Sherman Antitrust Act (15 U.S.C. § 1), which prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations;" and
  • Section 5(a) of the Federal Trade Commission Act ("FTC Act") (15 U.S.C. §§ 41–58), which prohibits "unfair methods of competition" and "unfair or deceptive acts or practices."

The Sherman Act can be enforced criminally or civilly by the Antitrust Division ("Division") of the U.S. Department of Justice ("DOJ"). Criminal antitrust enforcement is reserved for "hard core" violations of Section 1: price-fixing; bid-rigging; and market allocation schemes among horizontal competitors. The DOJ can also pursue less egregious cases civilly. Section 4 of the Clayton Act provides for a private right of action to enforce Section 1 of the Sherman Act. Private plaintiffs may recover treble damages and litigation costs and may also seek injunctive relief.

While Section 1 of the Sherman Act on its face prohibits all restraints of trade, the Supreme Court has interpreted it to prohibit only "unreasonable" restraints. SeeStandard Oil Co. v. United States, 221 U.S. 1, 60–68 (1911). Naked horizontal agreements with competitors to fix prices (or any component of pricing), restrict output, rig bids, or allocate customers or geographic markets, i.e., the hard core violations discussed above, are considered "per se" illegal.1

Other types of agreements are assessed under the rule-of-reason standard, which weighs the anticompetitive harms caused by the restraint against its procompetitive benefits to determine whether competition has been harmed in the relevant antitrust market. This approach distinguishes restraints that have an anticompetitive effect and harm the consumer from restraints that promote competition and are in the consumer's best interest. Cont'l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 26, 49 (1977). In analyzing a case under the rule of reason, courts consider several factors, such as the intent of the conduct and restriction, the position of the defendant in the market, market conditions, barriers to entry, objective justification, and procompetitive justifications.

A central element in all Section 1 cartel cases is proof of an illegal agreement. Illegal agreements do not have to be in writing; they may be reached verbally, through emails, or even with a wink or nod – i.e., a "conscious commitment to a common scheme" is sufficient. Direct or circumstantial evidence may be used to establish the existence of an agreement, but the U.S. Supreme Court has held that "there must be evidence that tends to exclude the possibility of independent action" and establishes that the defendants "had a conscious commitment to a common scheme." Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 768 (1984). Proof that the defendants engaged in parallel conduct is insufficient, standing alone, to show such a "conscious commitment." Plaintiffs must also allege certain "plus factors" to give rise to an inference of an agreement. Plus factors are proxies for direct evidence of an agreement because they tend to ensure that courts punish concerted actions as opposed to unilateral, independent competitive conduct.

Although the Federal Trade Commission ("FTC") does not technically enforce the Sherman Act, it can bring civil cases under Section 5(a) of the FTC Act. The Supreme Court has said that all violations of the Sherman Act also violate the FTC Act, thus allowing the FTC to challenge the same kind of conduct that would violate the Sherman Act through the FTC Act. The FTC Act also reaches other practices that do not meet all elements of a Sherman Act violation, such as invitations to collude that do not lead to actual collusion.

State attorneys general can also seek to enforce these federal antitrust laws on behalf of the state's residents or the state. They often work on a multistate basis with each other and coordinate with the DOJ and the FTC.

In addition to these federal statutes, all 50 states (and the District of Columbia and Puerto Rico) have some type of antitrust or unfair trade practice statute, most of which are based on and/or interpreted consistently with federal antitrust laws. State attorneys general are responsible for the public enforcement of these laws, and nearly all states permit private civil damages actions, most for treble damages, although some states limit recovery to actual or double damages. State attorneys general may also pursue criminal antitrust violations of state law, where applicable. These types of enforcement actions tend to focus on local bid-rigging schemes.

The antitrust laws in the United States also provide for exemptions in certain circumstances, such as: (i) a state action exemption, which exempts certain conduct that is undertaken under state or local government policy; (ii) conduct to influence the government (Noerr-Pennington doctrine); (iii) collective bargaining under the labor exemption; (iv) the filed-rate doctrine, which bars antitrust suits based on tariffs filed with a federal or state regulatory agency; and (v) the limited implied exemption from laws regulating sales of securities.

2. Overview of investigative powers in the United States

Leniency cooperation and dawn raids

The leniency program (discussed further below) and dawn raids are the DOJ's most important investigative tools. Dawn raids are unannounced searches of offices or residences by officers and agents of the DOJ and the Federal Bureau of Investigation or other law enforcement agencies to seize documents, equipment, records, and data. In the United States, a court will only issue a search warrant to authorize a dawn raid if agency officials have probable cause to support the allegations underlying the warrant.

Electronic surveillance

The Omnibus Crime Control and Safe Streets Act of 1968 curtails the government's ability to intercept wire, oral, and electronic communications. Thus, in the antitrust context, the government may only intercept said communications pursuant to criminal cartel investigations and with a search warrant authorized by a court.

Issuance of subpoenas

A grand jury investigation is generally opened if the DOJ's investigation yields evidence confirming the alleged anticompetitive conduct and prosecution is expected to proceed. A grand jury must approve the issuance of subpoenas to produce documents and compel testimony. Subpoena recipients who fail to provide requested information or refuse to testify can be held in contempt. The scope of a subpoena is usually limited to evidence and documents located within the United States because of jurisdictional limitations on the DOJ. However, targets may voluntarily provide documents located overseas to the government.

Civil investigative demands

Civil investigations by federal or state enforcement agencies do not involve a grand jury. Instead, the federal or state enforcement agencies can directly issue civil investigative demands ("CIDs") or civil subpoenas to obtain documents or sworn written or oral testimony from targets of a civil investigation or relevant third parties. A CID is usually issued before the government files a complaint. CIDs may seek documents located outside of the United States consistent with due process. In September 2020, the DOJ announced that all CIDs issued by the Division may be used by the DOJ in other civil, criminal, administrative, or regulatory cases or proceedings.2 In September 2021, the FTC passed an omnibus resolution that permits staff attorneys to issue CIDs and subpoenas in certain prioritized areas with the approval of only one commissioner rather than the full commission as previously required.3 Investigations that begin in a civil context may eventually lead to criminal prosecutions. In November 2021, the FTC announced an expansion of its criminal referral program to ensure the FTC promptly refers to criminal law enforcement agencies any criminal conduct the FTC uncovers in an antitrust investigation.4

In August 2022, the FTC approved an omnibus resolution to allow compulsory process in investigations into collusive acts and practices in violation of Section 5 of the FTC Act for the next 10 years, allowing the FTC to quickly investigate emerging threats of anticompetitive conduct.5


3. Overview of cartel enforcement activity during the last 12 months

The DOJ filed a total of 18 criminal cases in 2022 – the lowest since 2010.6 The DOJ charged nine corporations and 31 individuals with criminal antitrust conduct and the average prison sentence between 2020–2022 was 15 months.

The total criminal fines and penalties in 2022 totaled USD2 million, a considerable reduction from USD151 million in 2021 and the lowest total fine imposed by the DOJ in the past 10 years.7

Criminal prosecutions for wage-fixing and no-poach agreements

Labor market collusion cases continue to be an increasingly significant part of the DOJ's docket, and prosecuting no-poach and wage-fixing agreements remains a top priority for the Division. In March 2022, the DOJ and Department of Labor ("DOL") signed a Memorandum of Understanding to work together to eliminate collusion in labor markets, ensure compliance with the labor laws and promote competitive labor markets and worker mobility.8

In October 2022, the DOJ secured its first guilty plea in a no-poach case. A grand jury indicated a Nevada healthcare staffing company that had colluded with a competitor not to recruit or hire each other's nurses and not to raise the wages of their respective nurse employees. The company agreed to pay a criminal fine of USD62,000 and restitution of USD72,000 to the nurses affected by the action.

4. Key issues in relation to enforcement policy

Executive Order on Promoting Competition in the American Economy

In July 2021, President Biden signed an executive order designed to "promote competition in the American economy, which will lower prices for families, increase wages for workers, and promote innovation and even faster economic growth."9 The order calls for a "whole-of-government" approach to combat anticompetitive conduct in a number of priority sectors, including healthcare (i.e., insurance, hospital, and prescription drug markets), telecommunications, agriculture, transportation, technology, and banking and consumer finance. Within the cartel context, the order "[e]ncourages the FTC and DOJ to strengthen antitrust guidance to prevent employers from collaborating to suppress wages or reduce benefits by sharing wage and benefit information with one another," suggesting that the focus on the labor market will continue.

DOJ policy changes

In October 2021, the DOJ announced major changes to its policies regarding corporate criminal investigations and resolutions, which demonstrates a heightened interest by the DOJ in holding accountable both companies and individuals responsible for criminal wrongdoing. First, the DOJ restored prior policy requiring companies seeking cooperation credit to provide information on all individuals involved in misconduct rather than only those who were "substantially" involved. Second, when determining whether to bring charges, the DOJ will now evaluate a company's entire history of misconduct (including any civil, criminal, and regulatory matters), rather than focusing solely on "similar misconduct." Finally, the DOJ rescinded prior guidance that disfavored the imposition of independent compliance monitors.10

Enforcement priorities

In addition to no-poach agreements and procurement collusion (discussed below), the DOJ has recently indicated a renewed focus on cartel activity in agricultural markets.

In November 2022, the FTC issued a new policy statement that expands the reach of Section 5 of the FTC Act prohibiting "unfair methods of competition." The new policy statement rescinds the 2015 policy statement, and notes that the agency will go beyond the rule of reason and consumer welfare standards that previously guided Section 5 analyses. The policy statement grants the FTC the power to act "against conduct that is unfair" and limits the potential justifications for unfair methods of competition, requiring defendants to show that any restriction "is narrowly tailored to limit any adverse impact on competitive conditions." Also, unlike the rule of reason framework, the burden will be on the defendants to show that the asserted "benefits outweigh the harm to market participants."11

Use of deferred prosecution agreements

In July 2019, the Division announced that prosecutors could consider resolving criminal antitrust investigations through deferred prosecution agreements ("DPAs") where companies meet four pillars of "good corporate citizenship:" (i) maintaining a robust compliance program; (ii) self-reporting the wrongdoing; (iii) cooperating with the DOJ in its investigation; and (iv) remedying the past misconduct. The Division simultaneously issued detailed guidance articulating specific components that the DOJ would like to see as part of corporate compliance programs.

Since this policy shift, the DOJ has reached 10 DPAs for Sherman Act violations. In one such case, the Division resolved antitrust conspiracy charges against a concrete company through a DPA that required the company to reform its antitrust compliance program.12 In January 2023, a federal district court approved a DPA between the DOJ and the former regional manager for a healthcare staffing company after the manager admitted to agreeing with a competitor to not recruit each other's nurses and fix their wages.

Procurement Collusion Strike Force

The DOJ continues to work with law enforcement and prosecutorial agencies and offices across the country to combat antitrust crimes and related fraud in government procurement through the Procurement Collusion Strike Force ("PCSF"). In 2022 alone, the PCSF indicted a concrete company in Minnesota and its CEO for conspiring to rig bids for public repair and construction contracts from 2012 to 2017 and three Florida men for a conspiracy to rig bids for customized promotional products sold to the U.S. Army. In July 2022, the PCSF secured a guilty plea from a military contractor in Texas for conspiring to rig bids in government contracts over five years, resulting in a USD17.2 million fine.

Antitrust whistleblower protection

The Criminal Antitrust Anti-Retaliation Act was enacted in December 2020 to prohibit employers from retaliating against employees who report antitrust violations.13 The law provides new whistleblower protections to employees, contractors, subcontractors, or agents of private employers who report conduct related to a suspected criminal antitrust violation to their employer or the federal government, or who assist the federal government with an investigation or proceeding related to suspected criminal antitrust violations.

5. Key issues in relation to investigation and decision-making procedures

When the Division has reason to believe an antitrust violation may have occurred, it will open either a preliminary inquiry or grand jury investigation. If the Division lacks sufficient evidence to open a grand jury proceeding, it will consider the following factors before opening a preliminary inquiry: (i) whether there is reason to believe that an antitrust violation may have been committed; (ii) what amount of commerce is affected; (iii) if the investigation will duplicate or interfere with other efforts of the Division, the FTC, a U.S. attorney, or a state attorney general; and (iv) whether allocating resources to the matter fits within the needs and priorities of the Division.


6. Leniency/amnesty regime

Leniency Program

The Division offers immunity from criminal penalties for companies and their directors, officers, and employees who cooperate in its investigations. The Leniency Program creates a race to the agency because immunity is only available to the first company to cooperate, while subsequent cooperating companies qualify for fine reductions and other potential benefits. When a company uncovers potential cartel conduct, it can approach the DOJ for a "marker" that serves as a placeholder for a finite period to allow the company to conduct a more thorough investigation. To "perfect" the marker and otherwise qualify for leniency, the company must: terminate its participation in the cartel; provide complete, candid, and continuing cooperation to the DOJ; admit wrongdoing; and make restitution where possible. Leniency is available whether or not the Division has received information about the illegal conduct from another source, provided the DOJ does not yet have sufficient evidence against the company to sustain a conviction. On April 4, 2022, the DOJ updated its leniency policy to state that an applicant must, "upon its discovery of the illegal activity, promptly report[] it" to the DOJ. This prompt reporting requirement means that an applicant may not qualify for leniency if it waited too long to report the illegal conduct after becoming aware of it. The DOJ has indicated that it will be the applicant's burden to prove that the self-reporting was prompt.

A company under investigation for one cartel that is unable to obtain leniency for that conspiracy can receive substantial assistance credit and a reduced fine under the Division's "Leniency Plus" policy by reporting its involvement in a separate cartel in another product line and obtaining leniency for the newly reported conspiracy. Conversely, if a company pleads guilty to an antitrust violation but fails to report an additional cartel it was involved in, the DOJ will generally seek a more severe punishment for the new crime under its "Penalty Plus" policy. Both policies provide added incentive for companies to conduct thorough internal investigations and to report any additional antitrust crimes they uncover. A company contemplating whether to apply for leniency should carefully weigh the costs against the benefits. A leniency applicant bears the full expense of cooperating with the DOJ, which often lasts multiple years and requires reviewing millions of documents and making certain witnesses available for interviews and testimony. Furthermore, companies should consider their exposure to liability outside of the jurisdiction in which they have immunity as well as potential civil liability.

A cooperating company that does not qualify for amnesty because it was not the first to report the conduct may still receive a reduced fine for providing substantial assistance to the DOJ in its investigation. In October 2021, the DOJ restored its prior policy requiring companies seeking cooperation credit to provide information on all individuals involved in misconduct rather than only those "substantially" involved.

Antitrust Criminal Penalty Enhancement and Reform Act

In addition to immunity from criminal sanctions under the Leniency Program, amnesty applicants may also be eligible for benefits in follow-on private civil actions – including reduction from treble to single damages and the elimination of joint and several liability – by virtue of the Antitrust Criminal Penalty Enhancement and Reform Act ("ACPERA"), which was originally passed in 2004. On October 1, 2020, the Antitrust Criminal Penalty Enhancement and Reform Permanent Extension Act reauthorized ACPERA and made it permanent.

7. Administrative settlement of cases

Civil cases

A company or individual charged with a civil violation of U.S. antitrust laws can choose to settle with the DOJ or the FTC to resolve the enforcement action by consent decree. The agencies use consent decrees to stop unlawful conduct, prevent it from recurring, and restore competition. The DOJ and FTC must comply with different regulations in reaching consent decrees, but both agencies are required to submit decrees to public scrutiny and comment before making them final.

Criminal cases

Companies or individuals charged with criminal antitrust violations can voluntarily negotiate with the DOJ to plead guilty rather than face trial. Plea bargains provide the defendant with several benefits, including certainty, expedience, finality, and reduced criminal penalties. Plea agreements allow the government to save resources that it can allocate toward other enforcement priorities.

The scope of a plea agreement is subject to negotiation between the parties. Fines are determined based on the volume of affected commerce as well as the company's assigned culpability score (which considers several factors, including the size of the company, involvement of its high-level officials, and its cooperation and acceptance of responsibility) as well as any discount provided for assisting the DOJ with its investigation.

8. Third-party complaints

Third parties can contact the DOJ or the FTC to report a possible violation of the antitrust laws and provide the initial evidence to begin an investigation. The Division's PCSF Tip Center receives and reviews complaints, concerns, or tips regarding potential violations affecting government procurement, grant, and program funding. Antitrust concerns that do not deal with those areas can be reported to the Division's Citizen Complaint Center.

9. Civil penalties and sanctions

The federal government and private parties (including state and local governments) may pursue civil penalties against those accused of illegal cartel activities. Through government enforcement, corporations may be fined up to USD100 million or twice the gain from the illegal conduct or twice the loss to the victims. Individuals can be fined up to USD1 million. When the federal government is the victim of the cartel's actions, the DOJ may obtain treble damages under the Clayton Act and/or the False Claims Act. To date, the highest fine awarded in a cartel case is USD925 million against Citicorp in 2015, after the firm admitted to participating in an international cartel that conspired to manipulate the foreign currency exchange ("FX") spot market.

Private parties harmed by the cartel's activities can seek damages, an injunction, and costs of the action (including attorneys' fees). They may also recover treble damage for harms they suffered as a result of violations. If there is a successful federal prosecution of the cartel on collusion claims, that evidence can be used by the private plaintiffs in follow-on civil proceedings.

10. Right of appeal against civil liability and penalties

In civil matters, both plaintiffs and defendants have the right to appeal an adverse ruling on the merits of a case to an appellate judicial body composed of neutral decision-makers. After the appellate court enters a final decision, a case may be appealed to the U.S. Supreme Court, but that review is discretionary.

11. Criminal sanctions

Cartel violations are subject to prosecution as criminal felonies. Corporations may be fined up to USD100 million or twice the gain from the illegal conduct or twice the loss to the victims. Individuals can be fined up to USD1 million and imprisoned for up to 10 years. Courts can also impose probation or require the payment of restitution to victims.

Criminal sanctions in each case are imposed by the federal judge presiding over the matter in accordance with the Federal Sentencing Guidelines established by the U.S. Sentencing Commission. The Sentencing Guidelines prescribe a range of sanctions that depend on factors such as the level of trade affected by the offense, the defendant's criminal history, cooperation and acceptance of responsibility, and the presence of an effective compliance and ethics program. In most cases, defendants negotiate a plea agreement that includes sanctions consistent with the range of punishments allowed under the Sentencing Guidelines, which leaves limited opportunity for the exercise of discretion by the presiding federal judge.

From 2015 to 2022, the DOJ prosecuted 99 companies and 270 individuals for criminal antitrust violations. During the same period, the criminal fines and penalties imposed totaled USD5.285 billion. The average prison sentence from 2010 to 2020 was 18 months, which has decreased in the last three years to 15 months. Since 1998, criminal fines of USD100 million or more have been imposed against 36 companies, including 13 fines of USD300 million or more.

12. Cooperation with other antitrust agencies

The DOJ cooperates with foreign authorities wherever appropriate to investigate cartels. To do so, the DOJ enters into Mutual Legal Assistance Treaties ("MLATs") with other countries' respective enforcers, allowing the various agencies to exchange information and to coordinate dawn raids, among other things. The DOJ and foreign authorities, for example, can time dawn raids and searches to coincide in multiple jurisdictions to minimize the risk of evidence destruction.

The DOJ may also seek the cooperation of foreign authorities to obtain indicted fugitives by issuing an Interpol "Red Notice," which operates as an international "wanted" notice that permits authorities in some Interpol member countries to arrest the subject. If the subject of a Red Notice is located in a member country, the DOJ (through the State Department) may request the subject's extradition to the United States. Extradition is only available if the jurisdiction is a party to a treaty with the United States containing a reciprocal right to extradition or it maintains an informal extradition policy.

13. Cross-border issues

The federal antitrust laws of the United States can have broad extraterritorial reach. Under the Foreign Trade Antitrust Improvements Act ("FTAIA"), any conduct – including if it is purely foreign – may be subject to the U.S. antitrust laws and falls within the jurisdiction of the DOJ so long as it "has a direct, substantial, and reasonably foreseeable effect" on commerce in the United States and that "gives rise to a claim under [Section 1 of the Sherman Act]."

In 2017, the DOJ and FTC issued "Antitrust Guidelines for International Enforcement and Cooperation" ("International Guidelines"), which articulate the agencies' enforcement policy and investigative tools available in connection with challenging conduct occurring abroad. They also provide guidance on the agencies' enforcement cooperation with foreign authorities. The International Guidelines explain that in making investigative and enforcement decisions in situations involving foreign commerce, the agencies consider the connection between the conduct and the United States and whether enforcement would redress real or threatened harm to U.S. consumers and commerce. The agencies also consider whether significant interests of any foreign sovereign would be affected. The agencies may coordinate and cooperate with foreign authorities conducting parallel investigations, including through informal discussion, exchanges of information, and joint interviews.

The extraterritorial reach of the DOJ to prosecute cartels across jurisdictions is evident from the rise in charges, indictments, and pleas against international suppliers of component parts that allegedly cartelized the parts sold outside the United States, with only the final finished product being sold in the United States. The DOJ has argued that cartels formed outside the United States have directly harmed American consumers by inflating the price of components incorporated into products sold to them. These include cartels involving automotive parts, foreign-exchange markets, liquid-crystal displays, electrolytic capacitors, and other products. The DOJ has also imposed substantial fines on the companies involved in these international cartels. Before 2021, of the 156 corporations that had paid fines of USD10 million or more, 129 were foreign corporations.

Still, the DOJ's extraterritorial reach only goes so far. For example, the Second Circuit, in In Re: Vitamin C Antitrust Litigation, 8 F.4th 136, 140 (2d Cir. 2021), reversed a treble damages award against China-based companies that had coordinated the price and supply of vitamin C exports to the United States, finding that Chinese law required the defendants to engage in the allegedly anticompetitive conduct.

Extradition

There are certain obstacles that may stand in the way of the DOJ actively prosecuting individuals in international cartels, as individuals can choose not to voluntarily submit to U.S. jurisdiction. Where provided by treaty, however, the DOJ may seek extradition of such individuals from foreign jurisdictions.

Despite the challenges that it faces, the DOJ has actively attempted to extradite individuals who have violated the Sherman Act. For example, in March 2020, the DOJ extradited a Korean national, a former executive for an auto-parts manufacturer from Germany, for violating the Sherman Act. The former manager, who pleaded guilty for his role in an international market-allocation and bid-rigging conspiracy involving the sale of instrument-panel clusters to several automobile producers, was fined USD130,000 and sentenced to nine months in prison.

14. Developments in private enforcement of antitrust laws

U.S. antitrust laws are widely enforced through private lawsuits and often through class actions. These highly complex cases can last for many years and potentially involve billions of dollars in treble damages. Under Section 4 of the Clayton Act, "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States." The term "persons" also includes the state governments, which can bring action under state antitrust statutes (as well as under federal antitrust laws) on behalf of the state's citizens or directly on behalf of the state as a purchaser.

One baseline issue in many private disputes is standing. According to the Supreme Court's decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), a long-standing precedent, only "direct purchasers" have statutory standing to bring claims for damages under federal antitrust laws. Although indirect purchasers are generally prohibited from bringing claims for damages under federal antitrust laws, several court-made exceptions to Illinois Brick have emerged over the years. In addition to federal statutes, state statutes may provide a private right of action for antitrust violations. Some state antitrust statutes and consumer-protection laws provide more expansive rights for private litigants, such as states that permit indirect purchasers of allegedly price-fixed goods to collect damages (known as Illinois Brick repealer states).

In terms of class actions, given the high stakes and the tremendous significance of the class-certification decision, federal district courts in the United States are empowered to act as gatekeepers to consider whether the plaintiffs satisfy the requirements for an antitrust claim to proceed as a class action. For one thing, the putative class representatives must prove that causation can be established for all members of a putative class at trial (Walmart v. Dukes, 564 U.S. 338 (2011)) and that damages can be established using a common method and on a class-wide basis (Comcast v. Behrend, 569 U.S. 27 (2013)). In more recent years, some courts have continued to find that material inconsistency between the named plaintiffs' theory of damages and theory of liability precludes certification. Members of a putative or certified antitrust class action seeking damages have the right to exclude themselves (i.e., "opt out") from the class action proceeding and pursue their own individual claims directly against the defendants.

In private litigation, co-defendants or participants in a conspiracy that have acted in concert and have violated Section 1 of the Sherman Act are liable jointly and severally. Each defendant is responsible for the full damages attributable to all the others, and an injured antitrust plaintiff may seek the total amount of its damages from any or all of the defendants that caused the injury. There is no right to contribution between the defendants.

15. Reform proposals

In February 2021, Senator Klobuchar introduced the Competition and Antitrust Law Enforcement Reform Act, which would (i) give enforcement agencies greater resources to enforce the antitrust laws, (ii) strengthen laws governing anticompetitive conduct, (iii) improve enforcement, and (iv) allow the FTC and DOJ to seek additional civil penalties.14

More recently, Senators Lee and Grassley introduced the TEAM Act, which would (i) assign sole responsibility for antitrust enforcement to the DOJ, (ii) increase civil penalties, and (iii) repeal Illinois Brick to permit indirect purchasers to seek damages.15

Footnotes

1. U.S. Dep't of Just., Just. Manual § 7-1.000 (2020), [Hyperlink]; see also U.S. Dep't of Justice, Antitrust Primer ("Price Fixing, Bid Rigging, and Market Allocation Schemes: What They Are and What to Look For"), [Hyperlink]

2. Fed'l Trade Comm'n, Statement of Chair Lina M. Khan Joined by Commissioner Rebecca Kelly Slaughter on Actions to Expedite Staff Investigations (Sept. 14, 2021), [Hyperlink]

3. U.S. Dep't of Just., Antitrust Division Announces Updates to Civil Investigative Demand Forms and Deposition Process (Sept. 10, 2020), [Hyperlink]

4. Fed'l Trade Comm'n, FTC to Expand Criminal Referral Program to Stop and Deter Corporate Crime (Nov. 18, 2021), [Hyperlink]

5. Fed'l Trade Comm'n, Resolution Directing Use of Compulsory Process in Nonpublic Investigations of Collusive Practices (Aug. 26, 2022), [Hyperlink]

6. U.S. Dep't of Just., Criminal Enforcement Trends Chart Through Fiscal Year 2022 (Nov 8, 2022), [Hyperlink]

7. Id.

8. Memorandum of Understanding Between the U.S. Department of Justice and U.S. Department of Labor (March 10, 2022), [Hyperlink]

9. The White House, Executive Order on Promoting Competition in the American Economy (July 9, 2021), [Hyperlink]

10. U.S. Dep't of Just., Deputy Attorney General Lisa O. Monaco Gives Keynote Address at ABA's 36th National Institute on White Collar Crime (Oct. 28, 2021), [Hyperlink]

11. Fed'l Trade Comm'n, Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act Commission File No. P221202 N (Nov. 10, 2022), [Hyperlink]

12. See Deferred Prosecution Agreement, United States v. Argos USA LLC, 4:21-002-RSB-CLR (S.D. Ga. Jan. 4, 2021), [Hyperlink]

13. Criminal Antitrust Anti-Retaliation Act of 2019, S. 2258, 116th Cong. (2019), [Hyperlink]

14. Competition and Antitrust Law Enforcement Reform Act of 2021, S. 225, 117th Cong. (2021–2022), [Hyperlink]

15. TEAM Act, S. 2309, 117th Cong. (2021–2022), [Hyperlink]

Originally published by Global Legal Insights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.