Winston & Strawn Partner Thomas Melsheimer was featured on the webinar "Recent DOJ Antitrust Cartel Trials: A Look Back and a Look Ahead," hosted by the Antitrust Section of the New York State Bar Association.
At the beginning of 2022, the DOJ scored a trial victory against a government contractor in a bid-rigging case. Since then, however, the DOJ has suffered trial losses in multiple high-profile cases. In the DOJ's first-ever trials involving no-poach and wage-fixing charges, the juries returned not-guilty verdicts in favor of the corporate and individual defendants. In the DOJ's price-fixing case against chicken industry executives, the jury found the five remaining defendants not guilty. This trial loss came after two earlier mistrials resulted in the DOJ dropping the charges against other defendants and having to respond to the judge's questions about the appropriateness of a third trial.
The panel included defense counsel involved in the DOJ's 2022 criminal antitrust trials. The panelists discussed key issues from these trials and best practices for trying cartel cases against the DOJ. They also discussed key takeaways from these trials and how these takeaways may influence the DOJ and defense counsel's strategies in upcoming trials.
- The Department of Justice will continue to pursue antitrust allegations in the labor market, in spite of some high-profile losses in that space. Indeed, the DOJ Antitrust Division has signaled that it is "not backing down" from litigating these types of cases. True to its word, the DOJ Antitrust Division has a number of upcoming criminal trials where it will seek to get back on a winning streak.
- The Antitrust Division will likely refine its approach in future cases to make the cases more jury-friendly.
- Trying an antitrust case isn't really all that much different from trying any kind of case. Bad emails will hurt a criminal defendant. It's important for defense counsel to have a theme or story to tell. As with all trials, preparation is half the battle.