The Fraying of Criminal Antitrust Enforcement

Evidence in recent years points to a fraying of criminal antitrust enforcement. Aggregate criminal penalties have fallen dramatically, and a series of recent acquittals has reduced Department of Justice (DOJ) win rates in (Sherman Antitrust Act) Section 1 cases from previously stratospheric levels. An obvious explanation is that the overall strength of the federal enforcement regime, bolstered by increases in statutory penalties, has deterred most offenses and left a paucity of explicit conspiracies. From our review of eleven cases filed from 2020 to 2023, we do observe indirect evidence of deterrence. But we also conclude that other factors are at work, including the DOJ’s attempts to apply criminal penalties to conduct that diverges from classic horizontal agreements, stronger efforts by defendants at trial, and the DOJ’s unwillingness to adjust its strategies in light of courts’ demonstrated willingness to allow economic evidence of anticompetitive effects. If the DOJ continues to pursue enforcement in a broad selection of cases and remains committed to the view that per se violations do not require economic evidence of anticompetitive harm, then its track record will continue to suffer, with potentially adverse consequences for criminal antitrust enforcement to follow.