In late March, attendees gathered in Washington, D.C., for the ABA Antitrust Law Section’s 71st Annual Spring Meeting, including officials from state, federal and international antitrust enforcement agencies. These enforcers gave updates on new policy initiatives and continued areas of focus that companies should be mindful of in their practices and in evaluating the effectiveness of their compliance programs. The major takeaway from both state and federal agencies is that antitrust violations will continue to be aggressively enforced.
More to Come from DOJ
Despite some recent setbacks, the Department of Justice (DOJ) Antitrust Division reiterated its commitment to enforcement through its willingness to litigate cases. In fact, in response to recent trial losses, Deputy Assistant Attorney General Michael Kades responded that “if you bring only cases you know you will win, it means you are underenforcing.” Emma Burnham, Acting Director of Criminal Enforcement highlighted this aggressive enforcement attitude when she noted that the Division currently has several open cases and nearly a dozen upcoming trials, and has had more grand jury investigations in the past year than in previous decades. She also noted some recent successes for the Division, including the first sentencing in a criminal monopolization case in over 40 years and a jury verdict of guilty for three military contractors submitting sham quotes for government contracts. It is clear that the DOJ hopes to build on these successes, making 2023 an even bigger year for prosecutions.
The DOJ additionally noted several new policy announcements and areas of focus:
- Preservation of Messaging Application Data: The Antitrust Division mirrored statements made by senior Department officials at the recent ABA White Collar Crime Conference, warning companies that when the DOJ is conducting an investigation of a company, prosecutors will seek communications and other data from ephemeral and encrypted messaging applications. Companies must work to ensure that their document retention policies will enable them to comply with DOJ requests for this data.
- Compliance: The DOJ made note that it will be holding compliance programs to a higher standard. Echoing the compliance guidance from the DOJ over the past few years, Chief of the Division’s Criminal II Section James Fredericks distilled DOJ expectations for compliance programs to the following three questions: (1) Is the compliance program well-designed? (2) Is it applied in good faith? (3) Does it work in practice?
- Focus on Consumer Protection Issues: Federal Trade Commission Consumer Protection Bureau Senior Attorney Lesley Fair and DOJ Civil Division Deputy Assistant Attorney General for Consumer Protection Arun Rao discussed increased cross-agency collaboration in the consumer protection space, including with the Drug Enforcement Agency, the Food and Drug Administration, and state enforcers. Companies in relevant fields should pay particular attention to ensure they are operating in line with all relevant antitrust laws.
- Labor Markets Remain a High Priority: After a busy year of enforcement in the labor market, Burnham and Fredericks noted to attendees that they expect an uptick in labor-related cases in 2023. The DOJ continues to send a clear message that no-poach, no-solicitation, no-hire and wage-fixing agreements may all be considered per se violations of Section 1 of the Sherman Act, and the Division will not shy away from conducting investigations and bringing charges against what they believe to be guilty parties, both individuals and companies. Deputy Assistant Attorney General Manish Kumar stated that these cases “are about protecting the economic freedom of individuals to sell their labor into a competitive market and therefore earn a livelihood.”
- Criminal Monopolization Cases: The DOJ also made apparent that it will continue to pursue cases under Section 2 of the Sherman Act, as announced at last year’s spring meeting. In 2022, the Division brought two Section 2 cases, the first ones in over 40 years. Assistant Attorney General for the Antitrust Division Johnathan Kanter specifically noted that the DOJ will not hesitate to bring these cases when they are supported by the facts and the law. Making this area even more risky, and increasing the importance of effective navigation of what is and is not prohibited by law for companies, Fredericks indicated that the Division would not be providing guidance on what it views as criminal in this space.
- Interlocking Directorates (Section 8): Fredericks also noted that the Division currently has approximately 20 open investigations in this area and will continue to aggressively enforce the prohibition against directors simultaneously serving on boards of competitors.
State Attorneys General Continuing to “Forge Their Own Path[s]”
Companies and individuals need to ensure compliance programs are tailored to mitigate the risk of not only federal antitrust enforcement but state enforcement as well, which in some instances may look quite different. States often have unique investigative, prosecutorial and remedial powers and tools at their disposal. The New York Assistant Attorney General noted that states must continue to “forge their own path” when pursuing antitrust matters.
Speakers from state attorneys general offices highlighted industries such as pharmaceuticals, fast-food franchises, retail chains, technology and airlines as high-priority targets. In addition, the states reiterated the focus on potential antitrust violations in the labor markets. New York’s antitrust chief, Elinor Hoffman, specifically noted the ability to work with other state agencies, such as the Labor Bureau, to more effectively collect information and prosecute these cases.
Representatives from different attorneys general offices additionally discussed the effect of the recently passed State Antitrust Enforcement Venue Act (28 U.S.C. § 1407), which was signed into law on Dec. 29, 2022. This law makes all state attorney general antitrust actions ineligible for consolidation in multidistrict litigation. This encourages state attorneys general to bring more antitrust actions because it is easier to maintain the cases in the venue of their choosing.
As highlighted at the recent ABA conference, state and federal agencies will continue to aggressively look for and enforce antitrust violations. Businesses in all industries should consider strengthening their compliance programs and related policies. It may be helpful to ensure management and staff are fully trained on these issues, and consult with both in-house and outside counsel as appropriate.