IN THIS JULY 2023 ISSUE
WITH LOSSES MOUNTING, REGULATORS REMAIN AGGRESSIVE IN LABOR MARKET ENFORCEMENT
Under the Biden administration, DOJ has repeatedly made clear that increasing enforcement of alleged anticompetitive conduct within labor markets remains a top priority.
However, DOJ’s record to date in its criminal enforcement of labor markets has been less than stellar, with judges and juries rejecting DOJ’s approach, as evidenced by recent acquittals of 13 individuals and one company of antitrust charges across four trials. Importantly, one of these recent dismissals delivered a major setback to DOJ’s labor market enforcement program and raises questions about the viability of these investigations and prosecutions—particularly as it relates to alleged non-solicitation agreements—and has created a difficult legal precedent for DOJ to overcome.
THE EC ENHANCES ITS ONLINE “eLENIENCY” TOOL
In September 2022, the European Commission (EC) upgraded its online platform “eLeniency” to ensure that companies that are parties to cartel and antitrust proceedings can easily and securely access documents online. The upgraded platform allows for an efficient interaction with the parties and adapts the tool to today’s new working methods. In October 2022, the EC published a Frequently Asked Questions (FAQs) document on leniency to clarify certain concepts and current practices when the EC applies the Leniency Notice.
In October 2021, EC Executive Vice-President and Commissioner for Competition Margrethe Vestager announced a new era of cartel enforcement while acknowledging that the number of leniency applications was falling, thus expressing the need to reform the leniency program. According to estimates of the Organization for Economic Co-operation and Development (OECD), leniency applications in 2020 were 70.5% lower in Europe compared to 2015. In the European Union speciﬁcally, only four leniency applications were ﬁled with the EC in 2021, down from 15 in 2019.
PCSF, DOJ CONTINUE CRACKDOWN ON ANTITRUST CRIMES AND RELATED FRAUD
DOJ’s PCSF has continued its crackdown on antitrust crimes and related fraud involving government procurement and funding. In its ﬁrst three years, it opened more than 65 investigations—domestically and abroad—across 50 different industries and has prosecuted more than 30 individuals and companies. Enforcement continues to pick up steam each year. The PCSF and its procurement cases are now a mainstay of the Antitrust Division’s criminal enforcement program efforts and remain a top priority for DOJ.
Recent important developments with the PCSF include the following:
BRINGING BACK SECTION 2: DOJ’S NEW ENFORCEMENT TOOL
Section 2 of the Sherman Act makes it unlawful to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations…” (15 U.S.C. § 2). The Division has worked to “reinvigorate” Section 2 to prosecute monopolization criminally, bringing charges for such violations for the first time in almost five decades. (See DOJ press release, “Assistant Attorney General Jonathan Kanter of the Antitrust Division Delivers Remarks at Howard Law School” (January 12, 2023)).
As we move into the second half of 2023, we should expect the number of antitrust investigations and enforcement actions to grow. Defeat at the hands of judges has not deterred antitrust enforcers from seeking to expand the law. Nor have losses in front of juries stopped the Division’s push to remake certain areas of antitrust law. The trend line is clear, and DOJ officials have articulated it through their words and actions. In the months to come, we expect more of the same: aggressive, often boundary-breaking, antitrust enforcement.
Royce Brosseau, a summer associate in the Washington, DC, office, also contributed to this newsletter.