Turning of the tide: The transformation of criminal antitrust enforcement

This year presented many changes to the white-collar enforcement space. The changes to the enforcement of the Foreign Corrupt Practices Act seemed to receive more significant attention in the news, but the field of criminal antitrust has also dramatically transformed. Many of the large antitrust cases litigated in past years have been in the civil space. Many of the large antitrust cases litigated in past years have been in the civil space. Specifically, cases brought by Department of Justice (DOJ) and Federal Trade Commission (FTC) demonstrated an emphasis on curbing monopolistic behavior and blocking large mergers and acquisitions. Civil antitrust laws include prohibitions against various restraints of trade: monopolizing or conspiring and attempting to monopolize, enacting predatory pricing, creating tying agreements (where consumers wanting to buy one item must buy another with it), and engaging in other collusive conduct. In the federal space, criminal antitrust enforcement is solely in the purview of the DOJ’s Antitrust Division, Washington Criminal Section. Criminal violations of antitrust law typically include agreements among competitors to fix prices, rig bids, or allocate markets (dividing consumers or territories between each competitors). This year has seen changes to the tools in the Washington Criminal Section’s belt and emphasis on using other capabilities to strengthen enforcement of the criminal antitrust statutes. Additionally, state attorney generals have demonstrated that they are prioritizing enforcing criminal antitrust laws.

The Antitrust Division’s Washington Criminal Section has “signaled a shift towards more aggressive criminal enforcement when it comes to rooting out collusion” in several ways. First, the Antitrust Division rolled out its first whistleblower program, partnering with the United States Postal Inspection Service and the United States Postal Service Office of Inspector General. When whistleblowers voluntarily report original information about criminal antitrust offenses—i.e., price fixing, bid rigging, or market allocation—that result in criminal fines or recovery of minimum $1 million and are otherwise eligible, the whistleblower may receive between 15 and 30% of the recovery. Additionally, in September 2025, the Antitrust Division also tightened the eligibility requirements for its leniency program to require grand jury and trial testimony by leniency applicants. The Antitrust Division’s leniency program has existed since the early 1990s and provides opportunities for corporations and individuals to self-report participation in illegal anti-competitive conduct. Now, applicants will be expected to be more directly involved in the criminal prosecutions to qualify for declinations, non-prosecution agreements, and other more favorable resolutions.

On top of these actions suggesting the Antitrust Division’s new goals in white-collar criminal enforcement, leadership also stated that it will focus on more “[Sherman Act] [s]ection 2 litigation that will provide clarity and ‘more oomph’ to the underdeveloped doctrine.” This section allows the DOJ to criminally prosecute people monopolizing, attempting to monopolize, or conspiring with another to monopolize. In criminally enforcing the federal antitrust laws, leadership also emphasized that it seeks to treat “white-collar” crime and “blue-collar” crime the same.

Similarly, some state attorneys general have recently signaled that they intend to strengthen criminal antitrust enforcement in their jurisdictions. California’s Senate Bill 763, which passed in October 2025, increased criminal monetary penalties and potential sentences for violations of its antitrust statute, among other provisions. New York’s pending legislation would also increase criminal monetary penalties for both corporate and individual actors, as well as extend the statute of limitations for antitrust violations. As of 2023, Colorado has a strong criminal antitrust statute with high criminal penalties and broad investigative authority in the hands of the state’s AG.

Although forty-eight states plus the District of Columbia have laws that allow them to prosecute antitrust violations as criminal offenses, there has been very limited usage of this enforcement mechanism up to this point. However, this may be the turning of the tide. Various states have demonstrated an emphasis on antitrust enforcement, evidenced by the bolstering of their statutes, increasing staff, and dedicating specific resources to antitrust enforcement—not to mention, California’s Attorney General pledging to “reinvigorate criminal prosecutions under [their antitrust law].” Further, the National Association of Attorneys General created the Bid Rigging and Criminal Enforcement Committee (BRACE). BRACE mirrors the federal Procurement Collusion Strike Force in that it provides a forum for 30 states to detect bid coordination, especially when directed towards public contracts and foreclosure auctions. It also coordinates investigations and provides criminal prosecution training for antitrust violations.

Edited by: Lauren Favre