US DOJ tests new approaches to boost cartel enforcement revival efforts

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In summary

This article summarises developments over the past year in the US Department of Justice (DOJ) Antitrust Division’s efforts to investigate and prosecute criminal cartel conduct. The article discusses the likely causes for record low fines and enforcement activity, as well as the Division’s efforts to expand the enforcement to new areas such as monopolisation offences and to use digital tools such as artificial intelligence (AI) and algorithms in investigation. Finally, the article summarises recent case developments, including the Division’s unsuccessful efforts to prosecute individuals accused of no-poach and related offences and successful prosecutions by the Procurement Collusion Strike Force.

Discussion points

  • Criminal antitrust enforcement and collected penalties at a record low
  • DOJ struggling to identify and prosecute large international cartels
  • Despite losses in court, DOJ continues to pursue no-poach and wage-fixing prosecutions
  • Division digitising investigation efforts through increased use of AI and algorithmic tools
  • DOJ Procurement Collusion Strike Force continues to successfully prosecute collusion on government contracts

Referenced in this article

  • US DOJ
  • Procurement Collusion Strike Force
  • United States v Patel
  • United States v Zito
  • United States v Martinez
  • USA v Penn et al


During the past year, criminal antitrust enforcement in the United States reached a record low, with the Department of Justice Antitrust Division (DOJ or Division) collecting a mere US$2 million in total penalties for cartel offences. The Division is continuing to struggle to identify large domestic and international cartels and to entice companies that may be participating in these cartels to come forward through its Leniency Program. The bulk of the Division’s recent cartel prosecutions have targeted individuals and small companies involved in alleged schemes to collude in labour markets and on government procurement contracts.

Despite this state of affairs, the DOJ remains undeterred in its efforts to reinvigorate criminal antitrust enforcement. Among other things, the Division is continuing to investigate and prosecute no-poach and wage-fixing agreements, notwithstanding a string of losses since it started treating these agreements as criminal violations. The Division is also continuing to invest in its Procurement Collusion Strike Force (PCSF) to uncover collusion on government contracts, which has been quite successful, albeit resulting largely in prosecutions of small, local cartels. The Division is also investing in new investigative techniques, most notably computer algorithms aimed at identifying patterns of collusion on government contracts and in online marketplaces. Coupled with the Division’s recent withdrawal of information exchange safety zones, this points to a potential new direction of the focus of future cartel enforcement.

Enforcement trends

Cartel enforcement levels continue to be at record lows. While the number of individuals charged in 2022 (31) increased by roughly 7 per cent from the previous year, the number of corporations charged (nine) dropped almost 36 per cent. Total criminal penalties collected dropped even further: from US$151 million in 2021 to just US$2 million in 2022.[1] While criminal penalties have consistently remained low relative to a peak in 2015 when the DOJ imposed nearly US$3.6 billion in penalties, the US$2 million collected in 2022 is the lowest annual amount collected in the past decade.

The low fine amounts, however, do not necessarily mean there is no enforcement activity at the DOJ. The Division has reported a 30-year high in pending grand jury probes (ending FY2022 with over 150 pending grand jury investigations).[2] As at December 2022, the Division had 16 pending trials for indicted criminal cases, which included trials against 13 companies and 44 individuals.[3] Rather, the record low fines are likely attributable to continued low levels of whistle-blower activity and a decrease in the number of ‘leniency’ applicants. Leniency applications have been depressed since the DOJ announced changes to the Leniency Policy that have been criticised for making the leniency application process more uncertain, and therefore less appealing, for companies and individuals considering going in. Whether the changes in the Leniency Policy are a material cause of the decrease in the number of applications is open to debate. Leniency applications have experienced a drop worldwide,[4] indicating that the trend in the US is more than just a reaction to the changes to the Policy (although, for international cartels, US considerations are often key to the decision as to whether to seek leniency anywhere). Other drivers of decreased leniency application are the burdens presented by follow-on private litigation and the greater number of national antitrust enforcers that prospective applicants have to factor in once they choose to engage with one.[5]

Low fine levels in the United States are also attributable to a lack of enforcement against international cartels,[6] as cross-border cases tend to be larger and have historically resulted in significant fines.[7] In recent years, cartel enforcement in the United States has shifted to a more domestic focus, with efforts oriented towards uncovering previously hard-to-reach conduct through the development of new investigative strategies, pursuit of novel legal theories and the charging of previously less enforced statutes. As discussed in more detail below, the DOJ has hired a team of data scientists and artificial intelligence (AI) specialists to help develop its investigatory techniques and expertise in a more digitised world. It is also prosecuting a wider range of conduct criminally; for example, by treating wage-fixing and no-poach agreements in labour markets as analogous to traditional per se violations such as price-fixing and market allocation.

That said, the DOJ has recently reaffirmed its commitment and efforts towards effective international antitrust enforcement,[8] and support from the Biden administration in the form of a US$100 million budget increase over the previous year for FY2024 will support DOJ efforts to ramp up its international detection and enforcement activities.[9] In 2022, the Division announced an international working group on supply chain collusion with the Australian Competition and Consumer Commission, the Canadian Competition Bureau, the New Zealand Commerce Commission and the United Kingdom Competition and Markets Authority.[10] The DOJ is also assisted in its international enforcement efforts through a series of international cooperation agreements aimed at facilitating the cross-border exchange of information and collaboration between enforcers in different jurisdictions. For example, the Division has entered into antitrust cooperation agreements with 15 foreign governments – Australia, Brazil, Canada, Chile, China, Colombia, the European Union, Germany, India, Israel, Japan, Korea, Mexico, Peru and Russia.

One highlight for the DOJ has been the PCSF, which was created in 2019 with prosecutors from various agencies, including the Antitrust Division, the United States attorney’s offices, the Federal Bureau of Investigation and the Department of Defense. Its goal is to investigate and prosecute antitrust crimes related to government procurement, as well as to facilitate training for procurement officials and government contractors about antitrust risks. The PCSF has so far opened more than 60 criminal investigations and prosecuted over 30 companies and individuals, involving over US$350 million worth of government contracts. The PCSF was especially active in 2022 and has reportedly been making use of algorithmic tools that look for patterns of collusion during the bidding process.[11]

Division efforts to expand criminal antitrust enforcement

The Division has taken a number of steps to expand the scope of criminal antitrust enforcement. In particular, it is continuing to prosecute labour-related antitrust offences, seeking to extend criminal enforcement of monopolisation offences and using algorithmic tools (ie, computer programs) to detect collusion while simultaneously making changes to its treatment and investigation of information exchanges.

Labour markets

The Division remains undeterred in its efforts to criminally prosecute alleged no-poach and wage-fixing agreements, despite a series of stinging losses in court. The DOJ first announced a policy to prosecute no-poach and wage-fixing agreements in 2016. In its 2016 guidance for HR professionals (published jointly with the Federal Trade Commission), the DOJ took the position that ‘naked’ agreements between competing employers not to poach one another’s employees, and agreements to fix wages, should be viewed as per se violations of Section 1 of the Sherman Act, and therefore subject to criminal prosecution.[12] While the DOJ published the HR guidance in 2016, no criminal cases were brought until late 2020. Since 2020, the DOJ has brought a series of cases alleging price-fixing or no-poach agreements. While judges have allowed these cases to proceed past the motion to dismiss stage, juries have consistently returned not guilty verdicts.

The fact that judges have allowed the cases to proceed past the motion to dismiss stage can be seen as a partial validation of the DOJ’s theory that conspiracies to fix wages or not compete for employees can be prosecuted as per se violations of the antitrust laws. The DOJ also achieved a pair of plea deals in a no-poach case against a Nevada healthcare staffing agency and its former regional manager, Ryan Hee.[13] Juries, however, have proved harder to convince. Juries in Colorado and Texas declined to find defendants guilty of criminal antitrust violations in the first two cases that went to trial.[14]

The trend has continued this year. The DOJ racked up a third loss in March 2023 when a federal jury in Maine acquitted four home healthcare agency managers accused of fixing wages and agreeing not to hire one another’s workers during the pandemic.[15] The prosecution claimed that the four defendants had communicated over WhatsApp and Zoom to reach agreements and played excerpts of recorded Zoom meetings at trial. The defence argued that although there was evidence that a potential agreement to fix wages was negotiated, it was never finalised or signed. They also presented evidence that wages did not change following the alleged agreement and that the defendants were ignorant of the law. While as a general matter, the DOJ does not need to show either knowledge of the law or actual market effect in per se cases, these arguments seem to have been compelling to the jury, who were likely reluctant to put people in jail for conduct that had no anticompetitive effect and that they did not know was criminal.

Then, in April 2023, the federal judge overseeing another alleged no-poach case involving aerospace executives and managers dismissed the criminal charges before the case even went to a jury. The DOJ alleged that the aerospace companies entered into no-poach agreements in the context of teaming agreements on contracts to supply the Department of Defense. Ruling on the defendants’ motion for an acquittal, the judge found that the prosecutors failed to show that there was a blanket agreement to prevent hiring.[16] The judge also admonished the government for ‘try[ing] to expand the common and accepted definition of market allocation in a way not clearly used before’. The judge reasoned that no reasonable juror could find the defendants guilty beyond a reasonable doubt because although the defendants’ alleged agreement may have ‘constrain[ed]’ the applicants ‘to some degree’, the government had failed to establish that the agreement allocated the labour market of the suppliers’ engineers ‘to any meaningful extent’.[17]

Despite these setbacks, the DOJ appears undeterred. Assistant Attorney General (AAG) Jonathan Kanter, who leads the Division, recently told an audience that ‘we are not part of the Chickenshit Club. . . . We’re going to stick with it.’[18] The Division’s approach, as reflected in speeches and press releases, is to continue to pursue cases that raise novel theories of antitrust liability, even if it means losing.[19] The DOJ hopes that this approach will reap yet unseen results by clarifying the law as well as by creating a deterrent effect. But viewed differently, the DOJ’s approach seems to be backfiring for the government as it continues to chalk up losses and as defendants look increasingly emboldened to defend themselves at trial rather than entering plea agreements and admitting guilt.

In March 2023, the DOJ announced a new indictment charging another healthcare staffing executive with violating Section 1 of the Sherman Act.[20] According to that indictment, the defendant held executive positions at multiple home health agencies and reached agreements with other unnamed co-conspirators to fix the wages of nurses across different facilities.[21]

Prosecution of Section 2 offences

In a potential sea change, the DOJ announced in 2022 that it would start pursuing criminal prosecutions of alleged violations of Section 2 of the Sherman Act, which prohibits monopolisation and attempted monopolisation. This represents a major departure from prior practice. For decades, the DOJ’s policy has been to only bring criminal charges for ‘hardcore’ violations of Section 1 of the Sherman Act, most notably price-fixing and bid rigging. Before the policy change, the DOJ had not brought a criminal Section 2 case in nearly 45 years.

Announcing the change, AAG Kanter stated that ‘if the facts and the law, and a careful analysis of Department policies guiding our use of prosecutorial discretion, warrant a criminal Section 2 charge, the Division will not hesitate to enforce the law’.[22] In October 2022, the DOJ announced that it had obtained a guilty plea from a construction company president for attempting to monopolise the market for highway crack-sealing services in Montana and Wyoming. According to the felony charge, the president had reached out to a competitor and proposed that their companies should allocate and thereby monopolise regional markets.[23] Shortly thereafter, in December 2022, a second criminal Section 2 case was announced – an 11-count indictment with 12 defendants who allegedly used violence, threats and extortion to fix prices, allocate the market and eliminate competition in the transmigrante forwarding industry in Texas.[24] Both cases present unique facts. The former essentially alleges a horizontal market allocation scheme, which is per se unlawful under traditional Section 1 principles, while the latter also alleges tortious conduct in addition to concurrent Section 1 claims. It still remains to be seen whether the DOJ is willing to bring criminal charges against stand-alone monopolisation offences.

Withdrawal of benchmarking safety zones

Finally, DOJ policy and guidance changes in the civil enforcement space suggest new areas of enforcement with potential cartel spillovers. Most notably, in February 2023, the DOJ withdrew three policy statements related to benchmarking and information exchanges. The withdrawal means the elimination of safety zone guidance, which – although contained in policy statements originally directed at the healthcare industry – had been widely interpreted to apply across industries and served as a basis for companies seeking to structure benchmarking and information exchanges in compliance with the antitrust laws. The now withdrawn guidelines created enforcement safety zones when companies took steps such as using intermediaries, exchanging only historical data and aggregating the data. In remarks announcing the withdrawal of the policy statements, Doha Mekki, the Principal Deputy AAG at the Division, presented the Division’s view that adherence to the previous safety zone guidance no longer necessarily eliminates the risk of anticompetitive harm. Mekki stated that the DOJ is particularly concerned about the use of pricing algorithms and other AI tools that may lead to tacit or express collusion.[25]

The DOJ’s withdrawal of the prior guidance and Mekki’s statements point to increased DOJ scrutiny of information exchanges. While not necessarily directly related to criminal enforcement, DOJ investigations of information exchanges are likely to increase, with potential spillover into criminal enforcement in cases where the exchange of information between competitors crosses the line to agreements to fix prices or other hardcore conduct that the DOJ pursues criminally.

To stay ahead of these developments, the DOJ has hired data experts and set up a programme, named Project Gretsky, after the famous hockey player who is credited with the quote ‘skate where the puck is going’.[26] As with its procurement strike force, the DOJ is looking for areas where it can use its own algorithms to identify patterns that indicate criminal agreements, such as bid rigging in public procurement or price-fixing in online markets. Project Gretsky embodies a view at the DOJ that future collusive conduct will involve computer algorithms and AI, potentially facilitated with information exchanges. The DOJ is thus looking to skate in the direction of these developments.

Other case developments

Broiler chicken cases

October 2022 marked the end of a spate of criminal cases against executives in the broiler chicken industry that began after the DOJ opened an investigation into alleged price-fixing and bid rigging in 2019. The DOJ went to trial against multiple defendants but failed to secure any convictions after three tries. All three trials ended in hung juries, and the DOJ ultimately dismissed the charges against the defendants. Before the final trial, the judge questioned the government’s basis for proceeding with a third attempt after two unsuccessful tries, given the DOJ’s policy to only prosecute cases where they have a good-faith basis to believe that the evidence is sufficient to sustain a conviction. Representing the Division directly in court, AAG Kanter argued that the DOJ made changes to the trial team and strategy that would avoid jury confusion and that, in his opinion, ‘[a]t the end of the day it’s about the evidence and the evidence in this case after looking at it again and again and again supports a conviction just as it did the day we charged it’.[27] Before its unsuccessful trials, the DOJ had secured one guilty plea.[28] The case attracted criticism of the DOJ’s approach, including the decision to structure its case around text messages and other written documents allegedly showing agreements to rig bids, without meaningful witnesses who would testify about those agreements. The case was a departure from the traditional DOJ practice of secure plea agreements with individuals involved in the alleged cartel conduct before prosecuting others and using testimony from the pleading defendants to secure convictions.

Procurement Collusion Strike Force

The DOJ has had a number of successful new prosecutions coming out of its procurement strike force. Some examples of these are summarised below.

Contech Engineered Solutions LLC

In September 2022, Brent Brewbaker, former executive of Contech Engineered Solutions, was sentenced to 18 months’ imprisonment by a North Carolina jury for participation in bid rigging and fraud schemes targeting the North Carolina Department of Transport (NCDOT). The complaint alleged that Mr Brewbaker had conspired to rig bids and submit false statements of non-collusion for more than 300 aluminium infrastructure projects funded by the state of North Carolina between 2009 and 2018 by instructing a co-conspirator to submit non-competitive bids to NCDOT. According to the DOJ, Brewbaker took steps to hide his conduct by varying the amount of inflated bids submitted and telling his co-conspirator that he would delete text messages related to their conspiracy.[29] Contech previously pleaded guilty in 2021 to one count of bid rigging under Section 1 of the Sherman Act and one count of conspiracy to commit mail and wire fraud. Contech agreed to pay a criminal fine of US$7 million and restitution to NCDOT in the amount of US$1,533,988.[30]

Military contractor cases

In January 2023, Aaron Stephens pleaded guilty to rigging bids on military contracts in Texas. The plea agreement alleged that Stephens and others had conspired to rig bids on certain government contracts between May 2013 and January 2018. The contracts were for work projects that included refurbishing armour kits for military trucks and turrets for Humvees. One of Stephens’s alleged co-conspirators, John ‘Mark’ Leveritt previously pleaded guilty in 2022. Leveritt admitted to bribing government employees by buying tickets to a World Series game. He also admitted paying for family holidays to Las Vegas for one government employee, making donations to youth sports teams coached by the employee and paying for approximately 100 restaurant meals. Mr Leveritt has yet to be sentenced.

In March 2023, a federal jury in the Northern District of Georgia convicted three military contractors for conspiring to defraud the United States by preparing and submitting sham quotes for government contracts. As at the time of writing, the defendants have yet to be sentenced. The case was investigated by the Division, along with the US Attorney’s Office for the Northern District of Georgia, the Army Criminal Investigation Division and the Defense Criminal Investigative Service.


The DOJ’s investigation into a bid-rigging and bribery scheme targeting the California Department of Transportation (Caltrans) resulted in more plea agreements and sentences over the past year. For example, on 24 April 2023, Choon Foo ‘Keith’ Yong, a former Caltrans contract manager, and William D Opp, a former contractor, were sentenced to 49 months’ and 45 months’ imprisonment, respectively. Yong was ordered to pay US$984,699.53 in restitution, and Opp was ordered to pay US$797,940.23. A third co-conspirator, former construction company owner Bill R Miller, was sentenced to 78 months’ imprisonment and nearly US$1 million restitution on 17 April 2023. According to the plea agreements, Yong and his co-conspirators had engaged in a conspiracy from 2015 to 2019 to subvert the Caltrans bidding process and ensure that the conspiring companies would be awarded the contract. Opp had apparently formed a separate construction company, with his wife as the nominal president, to submit sham bids to Caltrans. Yong also admitted to receiving bribes in the form of cash, wine, furniture and remodelling services on his home.[31]


While criminal antitrust enforcement in the US has hit a modern low, the Antitrust Division is focusing its efforts on new areas of enforcement, most notably in labour markets and on government contracts. Perhaps more notably, the Division is also looking to modernise its enforcement efforts with the aid of computer algorithms and AI to stay ahead of perceived efforts by cartelists to evade detection. Whether these efforts reinvigorate cartel enforcement remains to be seen. If not, the Division will doubtless continue to face external pressure to address perceived problems with its changes to the Leniency Program, which has historically been the primary source of new investigations and prosecutions, including those on large international cartels.


[1] Department of Justice (DOJ), ‘Criminal Enforcement Trends Charts: Trends Charts Through Fiscal Year 2022’ (updated 8 November 2022),

[3] ibid.

[4] Bryan Koenig, ‘Amid Aggressive Domestic Antitrust Push, Fine Amounts Fall,’ Law360 (18 January 2023),

[5] ibid.

[6] That said, in March 2023, there were reports that companies in the fragrance industry were subject to dawn raids as part of an international cartel probe. At least one company also received a DOJ subpoena. However, no official actions against these companies have yet been announced. See

[7] As at July 2021, of the 157 Sherman Act violations resulting in criminal fines and penalties of US$10 million or more, 142 were violations involving international cartel activities. See DOJ, ‘Antitrust Division, Sherman Act Violations Resulting in Criminal Fines & Penalties of $10 Million or More’ (3 February 2022),

[8] DOJ, ‘Deputy Assistant Attorney General Manish Kumar Delivers Remarks at Global Competition Review Live: Cartels 2023’ (7 June 2023),

[9] Michelle Freeman, David Hickerson and William McCaughey, ‘Prepare for Extraterritorial Enforcement of US Antitrust Law’, Law360 (30 March 2023),

[11] DOJ, ‘Assistant Attorney General Jonathan Kanter of the Antitrust Division Testifies Before the Senate Judiciary Committee Hearing on Competition Policy, Antitrust, and Consumer Rights’ (20 September 2022),

[13] Press Release, DOJ, ‘Health Care Company Pleads Guilty and is Sentenced for Conspiring to Suppress Wages of School Nurses’ (27 October 2022),; Bryan Koenig, ‘Deal Caps DOJ’s 1st Win in Individual No Poach Criminal Case,’ Law360 (24 January 2023),

[14] Ruling, United States v Jindal, No. 4:20-cr-00358-ALM-KPJ, Dkt No. 1 (E.D. Tex. 9 December 2020); Ruling, United States v DaVita Inc., et al., No. 21-cr-00229-RBJ, Dkt No. 1 (D. Colo. 14 July 2021).

[15] United States v Manahe, et al., No. 2:22-cr-00013-JAW (D. Me. 22 March 2023).

[16] Ruling, United States v Patel, No. 3:21-cr-220-VAB (D. Conn. 28 April 2023),

[17] United States v Patel, at 43:9 (29 March 2023).

[18] Guy Rolnik, Asher Schechter and Brooke Fox, ‘DOJ Antitrust Head Jonathan Kanter: “We Are Making It Very Clear: We’re Going to Hold Individuals Accountable”’, ProMarket (28 April 2022),

[19] For example, DOJ, ‘Assistant Attorney General for the Antitrust Division Jonathan Kanter Speaks on the “Enforcers Roundtable” panel at the ABA Annual Antitrust Spring Meeting’ (31 March 2023), (‘[T]he courts have said that as a matter of law, antitrust crimes focused on workers are just as important just as actionable as antitrust crimes focused on consumers. . . . Those are . . . righteous cases, and we will continue, when the facts and the law support it, to bring those cases.’).

[20] Press Release, DOJ, ‘Health Care Staffing Executive Indicted for Fixing Wages of Nurses’ (16 March 2023),

[21] Indictment, United States v Lopez, Dkt. No. 1, 2:23-cr-0055-CDS-DJA (D. Nev.).

[22] DOJ, ‘Assistant Attorney General Jonathan Kanter Delivers Opening Remarks at 2022 Spring Enforcers Summit’ (4 April 2022),

[23] Press Release, DOJ, ‘Executive Pleads Guilty to Criminal Attempted Monopolization’ (31 October 2022),

[24] Press Release, DOJ, ‘Criminal Charges Unsealed Against 12 Individuals in Wide-Ranging Scheme to Monopolize Transmigrante Industry and Extort Competitors Near U.S.-Mexico Border’ (6 December 2022),

[25] DOJ, ‘Principal Deputy Assistant Attorney General Doha Mekki of the Antitrust Division Delivers Remarks at GCR Live: Law Leaders Global 2023’ (2 February 2023),

[26] DOJ, ‘Assistant Attorney General Jonathan Kanter of the Antitrust Division Delivers Keynote at Fordham Competition Law Institute’s 49th Annual Conference on International Antitrust Law and Policy’ (16 September 2022),

[27] Matthew Perlman, ‘DOJ Told To Think Over 3rd Chicken Price-Fixing Trial,’ Law 360 (15 April 2022),

[28] Dan Papscun, ‘Pilgrim’s Ex-Execs’ Charges Dropped in End to DOJ Chicken Probe,’ Bloomberg Law (17 October 2022),

[29] Response Brief, United States v Brewbaker, No. 22-4544, Dkt. No. 35 (4th Cir. 4 May 2023),

[30] Press Release, DOJ, ‘Engineering Firm Pleads Guilty to Decade-Long Bid Rigging and Fraud Scheme’ (7 June 2021),

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