FEDERAL ANTITRUST CRIME:
A PRIMER FOR LAW
ENFORCEMENT PERSONNEL
U.S. Department of Justice
Antitrust Division
Updated October 2023
TABLE OF CONTENTS
I. Introduction ....................................................................................................... 1
II. Overview of Federal Antitrust Crimes ............................................................. 1
Price Fixing, Bid Rigging, and Market Allocation.................................. 1
Monopolization Offenses .......................................................................... 5
Proof of the Conspiracy ............................................................................ 7
Statute of Limitations .............................................................................. 8
Victims and Restitution ........................................................................... 8
III. Detecting Antitrust Crime................................................................................ 8
Investigative Leads .................................................................................. 8
Procurement Collusion Strike Force ..................................................... 10
IV. Antitrust Advice and Training ....................................................................... 10
I. INTRODUCTION
This Primer provides an overview of federal antitrust crimes: price fixing, bid
rigging, market allocation, and monopolization, including conspiracies and attempts
to monopolize.
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These economic crimes threaten the U.S. economy and undermine our
democratic institutions and national security. They rob purchasers, hurt workers,
contribute to inflation, destroy public confidence in the economy, and undermine our
system of free market competition. Deterring, detecting, and successfully prosecuting
these offenses is a crucial part of the Justice Department’s mission. Successful
prosecutions lead to prison time for executives and substantial criminal fines and
penalties for corporations.
The Antitrust Division’s 100+ criminal prosecutors fulfill our mission by
working collaboratively with law enforcement partners to detect, investigate, and
prosecute antitrust crimes. In addition to prosecutors, the Division has a host of
resources—paralegals, a document review unit, and access to additional technical
resources—that can help you, as agents, investigate cases efficiently and effectively.
The Antitrust Division also charges other crimes affecting competitive markets and
public procurement processes—such as wire fraud, public corruption, money
laundering, and obstruction of justice.
II. OVERVIEW OF FEDERAL ANTITRUST CRIMES
Price Fixing, Bid Rigging, and Market Allocation
The Antitrust Division frequently criminally prosecutes price fixing, bid
rigging, and market allocation conspiracies.
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These are general intent crimes
(meaning we do not need to prove an intent to defraud) and limited defenses are
available.
1. Price Fixing
Price fixing is an agreement among competitors to raise, fix, or otherwise
maintain the price at which their products or services are sold. Price fixing can take
1
This Primer offers the views of the Antitrust Division of the Department of Justice and has no force
or effect of law. It is not intended to, does not, and may not be relied upon to create any rights,
substantive or procedural, enforceable at law by any party in any matter civil or criminal. Nothing in
this document should be construed as mandating a particular outcome in any specific case, and nothing
in this document limits the discretion of the U.S. Department of Justice or any U.S. government agency
to take any action, or not to take action, with respect to matters under its jurisdiction.
2
15 U.S.C. § 1.
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many forms, such as an agreement among manufacturers of a particular product to
establish a minimum price, or an agreement among competing buyers of a product to
lower the prices they will pay. Price fixing is any agreement among competitors that
affects the ultimate price or terms of sale. It is not necessary that the conspirators
agree to charge the same price for a given item; for example, an agreement to raise
individual prices or maintain a profit margin violates the law even if the resulting
prices are not the same.
Price-Fixing Agreements: Examples
• Establish or adhere to uniform price discounts
• Eliminate discounts
• Adopt a standard formula for prices
• Notify others before reducing prices
• Fix credit terms
• Add a fee or a component of price, such as a fuel surcharge
• Maintain predetermined price differentials between different products
2. Bid Rigging
In a bid-rigging conspiracy, competitors agree in advance who will submit the
winning bid on a contract that a public or private entity wants to award through a
formal or informal competitive bidding process. In other words, competitors agree to
eliminate competition for some piece of defined business, whether it be a sale, a
contract, or a project. Bid rigging allows conspiring businesses to effectively raise
Case Example: Air Transportation Conspiracies
An investigation by the Antitrust Division and the Federal Bureau of Investigation
revealed conspiracies to fix the prices of airline passenger tickets and air cargo
shipments. Conspirators also fixed the rates that customers paid to ship cargo, such
as heavy equipment, perishable commodities, and consumer goods, by air for
certain routes to and from the United States, including by fixing fuel and post-
September 11 security surcharges. As a result of this investigation, 22 airlines and
21 executives were charged with antitrust offenses, and more than $1.8 billion was
recovered in criminal fines.
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prices when purchasers—often federal, state, or local governments—acquire products
or services by soliciting bids.
Bid Rigging: Common Types
• Bid Rotation: Competitors agree to take turns being the winner bidder
• Bid Suppression: A competitor agrees not to bid
• Complementary (“Comp”) Bid: A competitor agrees to submit bid that is
designed to lose or be disqualified to give false appearance of competition
For other conspirators to bid higher than the designated winning bidder, there
is often some type of communication among them as to what each of them should bid.
This is why our investigations often focus on communications between competitors.
Case Example: Bid Rigging at Real Estate Auctions
Since 2010, the Antitrust Division and FBI have partnered to combat a pattern of
collusive and fraudulent schemes among real estate speculators aimed at
eliminating competition at real estate foreclosure auctions all across the country,
including Northern California and the Southeast. Instead of competitively bidding
at public auctions for foreclosed properties, groups of real estate speculators
worked together to keep public auction prices artificially low by paying each other
to refrain from bidding against one another, or holding unofficial “knockoff”
auctions among themselves and paying each other money that should have gone to
those with an interest in foreclosed property—such as homeowners and banks.
To date, more than 130 individuals and several companies have been prosecuted
for participating in bid-rigging and fraud conspiracies targeting foreclosure
auctions in California, Georgia, Alabama and North Carolina.
After the bid is awarded, the winning bidder may pay off the co-conspirators
through cash payments or subcontracts. Purchasing agents might also receive
payoffs, and evidence sometimes shows the purchasing agent started the bid-rigging
conspiracy. Evidence of payoffs can be very persuasive to a jury.
Frequently, conspirators rig more than one bid and rather than compensating
each other through cash payoffs, they take turns being the winning bidder (“rotating”
the bids). Competitors may take turns on contracts according to the identity of the
customer or the size of the contract, trying to equalize the value of the contracts won
by each conspirator over time.
Bid rigging generally results in price increases for consumers, though we do
not need to prove that the price increased.
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3. Market Allocation
Market allocation schemes are agreements among competitors to divide the
market among themselves, usually by customer or geography. For example, in a
customer allocation, competing firms may agree to divide up specific customers or
types of customers so that only one competitor will be allowed to sell to, buy from, or
bid on contracts let by those customers. In return, the other competitor will not sell
to, buy from, or bid on contracts let by customers allocated to its co-conspirator.
Territorial market allocation is also illegal. Its effects are comparable to customer
allocation, but geographic areas are divided up instead of customers. The conspirators
thereby insulate themselves from competition and are collectively able to raise prices
to all customers.
Red Flags: Market Allocation
• Competitors suddenly stop selling in a territory
• Competitors suddenly stop selling to a customer
• Competitor refers customers to other competitors
• Salesperson or prospective bidder says that a particular customer or contract
“belongs” to a certain competitor
4. Labor Market Allocation (“No-Poach”) and Wage Fixing
The Antitrust Division also criminally prosecutes labor market allocation (also
known as “no-poach”) and wage-fixing conspiracies. Wage fixing is an agreement
between employers not to compete on employee salary, benefits, or other terms of
compensation.
A no-poach conspiracy is an agreement between two or more employers not to
solicit (including cold calling or recruiting), hire, or otherwise compete for each other’s
employees. These are market allocation agreements, but instead of allocating a
corporation’s output (its customers or territory), labor allocation agreements allocate
a corporation’s input (its employees). The Division criminally prosecutes no-poach
conspiracies that are not reasonably necessary to a separate, legitimate transaction
or collaboration between the employers, like a lawful joint venture.
5. Agreement Is Key
The agreement is the key to any conspiracy charge, including in antitrust. To
prove an agreement, we must establish a meeting of the minds or mutual
understanding between two or more independent businesses or individuals. The
agreement can be established by direct evidence, e.g., co-conspirator testimony that
the defendant agreed to fix prices, or circumstantial evidence, e.g., bids that establish
a pattern of business being rotated among competitors. Jury instructions from a
recent criminal antitrust trial put it simply: “It is the agreement to act together that
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constitutes the crime. Whether the agreement is actually carried out or whether it
succeeds or fails does not matter.”
Attempts or solicitations to enter into agreements to fix prices, rig bids, or
allocate markets that are unsuccessful are not prosecutable under Section 1 of the
Sherman Act. But depending on the evidence, they may be charged under other
statutes, including mail fraud, wire fraud, and Section 2 of the Sherman Act (as
attempted monopolization).
6. Limited Defenses
Because criminal antitrust conspiracies are inherently anticompetitive, the
agreement to fix prices, rig bids, or allocate markets is the crime. In a case alleging a
price-fixing, bid-rigging, or market allocation agreement, it is not a defense that the
challenged conduct was necessary to avoid cutthroat competition, that it actually
stimulated competition, or that it resulted in reasonable prices. We do not need to
prove loss to the customer under the Sherman Act, so lack of loss is not a defense
either. It is also not a defense that the agreement was unsuccessful.
7. Legal Elements
To establish these violations, the government must prove three elements:
a. The conspiracy existed at or about the time alleged;
b. The defendant knowingly joined the conspiracy; and
c. The conspiracy had a nexus to interstate or foreign commerce.
Monopolization Offenses
The Antitrust Division also prosecutes schemes to monopolize markets:
monopolization, attempted monopolization, and conspiracy to monopolize. This can
include conduct within just one company, rather than a conspiracy among competing
companies and executives.
To bring a monopolization case, the prosecutor must show a specific intent to
monopolize. A specific intent to monopolize means an intent to acquire or maintain
monopoly power in a market via anticompetitive or exclusionary conduct. Monopoly
power is the ability to control prices in a market or exclude actual or potential
competition.
1. Conspiracies to Monopolize
The elements of a monopolization conspiracy offense are:
a. An agreement;
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b. A specific intent to monopolize, i.e., an intent to (1) acquire or
maintain monopoly power in a market (2) via anticompetitive or
exclusionary conduct; and
c. A nexus to interstate or foreign commerce.
The “anticompetitive or exclusionary conduct” is how a monopolization crime
is effectuated; intent to acquire or maintain monopoly power is why the crime is
committed. The anticompetitive conduct the Division prosecutes criminally often—
but not always—falls into the following categories:
• Criminal price fixing, bid rigging, or market allocation.
Criminals may conspire to fix prices, rig bids, or allocate a market with
the ultimate goal of monopolization. For example, co-conspirators who
agree to divide a market into geographic territories to exclude
competition in those markets have both committed a market allocation
crime and entered into a criminal monopolization conspiracy.
• Other criminal conduct. For example, a group of competitors who
threaten a rival with violence to push it out of a market may be
prosecuted criminally—both for the violent crime and for the
monopolization. And the predicate criminal conduct need not be violent.
For example, the Division has prosecuted cases where bribery, extortion,
and wire or mail fraud were designed to create or keep a chokehold on a
market.
2. Monopolization and Attempted Monopolization
To support a charge of monopolization or attempted monopolization, the
government must prove additional elements. Unlike conspiracy to monopolize, which
requires no showing of market power, the government must prove that a defendant
or co-conspirators actually obtained or maintained monopoly power over a relevant
market (when charging monopolization) or that there was a “dangerous probability”
of achieving monopoly power (when charging attempted monopolization).
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Case Example: Highway Crack-Sealing Services
An investigation by the Antitrust Division, U.S. Attorney’s Office for the District of
Montana, and the Department of Transportation Office of Inspector General
uncovered a scheme to monopolize the markets for highway crack-sealing services
in Montana and Wyoming. The president of a paving and asphalt contractor
approached his largest competitor and proposed a “strategic partnership” under
which his company would stop competing for projects in Nebraska and South
Dakota and the competitor would stop bidding for projects in Montana and
Wyoming. He further proposed that the companies enter into a sham transaction
to disguise the collusion. The defendant pleaded guilty to one count of attempted
monopolization.
Monopolization and attempted monopolization charges can also reach purely
unilateral conduct—i.e., monopolization schemes carried out by a single firm or
individual. Such cases usually involve either (1) other criminal conduct in furtherance
of the monopolization scheme, or (2) unsuccessful attempts or solicitations to enter
into agreements to fix prices or allocate markets.
Proof of the Conspiracy
Antitrust prosecutions often feature evidence of an oral agreement between
competitors, usually from co-conspirator cooperators who testify about what they said
when they agreed not to compete or about what they understood the agreement to be.
Many of our cases also benefit from documentary evidence of an agreement, for
example emails, text messages, calendar entries, and notes.
Although overt acts in furtherance of the agreement are not required to prove
an antitrust violation, we often offer this evidence at trial to prove the existence of
the agreement. Overt acts can include secret meetings among corporate
representatives, the issuance of price lists, bid submissions, phone calls and
conversations between competitors to exchange future bid numbers or other
confidential customer information, and the use of code words to conceal the
conspiracy. Relatedly, we often seek evidence showing the steps conspirators take to
hide their relationships, communications, and agreements, during and after the
conspiracy. This evidence not only helps prove the existence of a conspiracy, but also
can be important to demonstrate consciousness of guilt, which is often powerful
evidence for the jury.
Proof of these overt acts generally comes from the testimony of conspirators,
supported by documents, such as bids, price lists, price quotations, transmittal
letters, telephone records, appointment books, job estimates, and expense account
records. These documents are important pieces of evidence that can also corroborate
witness testimony.
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Antitrust cases do not require proof of loss or harm, although if such proof
exists, it can be quite persuasive. Victims who testify that they were deceived and
cheated by the conspirators can have a substantial impact with the jury.
Statute of Limitations
The statute of limitations for antitrust crimes is five years.
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Victims and Restitution
The victims of antitrust crime include retail consumers, workers, small
businesses, and government entities that purchase goods and services and award
contracts. For example, an antitrust crime could affect everyone who purchased a
certain product nationwide during the time period of the crime.
Restitution is not mandatory for Sherman Act offenses, but a court may order
an antitrust defendant to pay restitution if it is part of the defendant’s plea
agreement. Circumstances where government entities are victims, or a defendant has
insufficient resources to pay both a Guidelines criminal fine and restitution to the
victims, receive particular consideration from Antitrust Division prosecutors.
Additional Consequences of Conviction
Collateral consequences include civil damages actions and debarment. When
the federal government or its agencies are victims of antitrust crime, the Department
of Justice may obtain treble damages. In addition, private parties (including state
and local governments) can recover treble damages they suffer as a result of an
antitrust violation, and they may use successful federal prosecution of collusion as
prima facie evidence against a defendant in a follow-on suit for treble damages.
Finally, individuals and entities may be suspended or debarred from doing business
with the government as a result of a criminal conviction for violating the Sherman
Act.
III. DETECTING ANTITRUST CRIME
Investigative Leads
Criminal investigations come to the Antitrust Division from many sources.
Frequent sources include law enforcement agents and prosecutors investigating other
conduct, complainants, leniency applicants, and proactive investigative methods by
the Antitrust Division or other government agencies.
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18 U.S.C. § 3282.
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1. Proactive Investigation and Covert Methods
Like any other criminal investigation, the Antitrust Division undertakes
proactive efforts to uncover violations, often in conjunction with the Federal Bureau
of Investigation, federal Offices of Inspector General, and other law enforcement
agencies. Tools used to investigate antitrust crime include confidential informants,
wiretaps, undercover agents, surveillance, consensual monitoring, cooperators,
search warrants, and foreign assistance requests.
For example, in the highway crack-sealing investigation highlighted above,
Department of Transportation OIG agents were able to record phone calls between
the defendant and a cooperator in which the defendant made numerous admissions—
including an explanation that the two companies were each other’s only real
competition and the allocation scheme and lack of competition would mean higher
margins for both companies.
The Antitrust Division also works to expand awareness of “red flags” for
antitrust violations by making outreach presentations to the public and private
sectors.
2. Agents Investigating Other Conduct
Agents investigating other conduct often uncover evidence of price fixing, bid
rigging, or market allocation. The Antitrust Division and the U.S. Attorney’s Office
in Guam, for example, conducted an investigation resulting in the prosecution of the
director of Guam’s Department of Parks and Recreation for organizing separate bid-
rigging conspiracies among contractors providing repair work for typhoon damage.
The director was convicted of soliciting and receiving bribes of more than $100,000,
committing wire fraud, and conspiring to launder money, in addition to organizing
the bid-rigging schemes. He was ultimately sentenced to over eight years in prison.
In another example, an executive of a fish company was facing a prison
sentence for a tax-evasion charge. The defendant provided information about his
company’s involvement in a bid-rigging conspiracy in the sale of fresh fish to the
Department of Defense. His cooperation, for which he received a reduced sentence,
led to a dozen convictions, including criminal fines and jail sentences for other
conspirators, and a large restitution award to the Department of Defense.
3. Complainants
Complainants report possible antitrust violations directly to the Antitrust
Division or other investigative agencies. Many complainants are not directly involved
in the illegal activity. Often they are victims, including disgruntled former employees
of conspirators, overcharged customers, or executives of smaller competitors that
have been affected by the conduct.
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Complaints may also come from purchasing officials working for private
businesses or public agencies. Such individuals are familiar with many industries
and are in good positions to spot price-fixing red flags, such as simultaneous price
increases by two or more suppliers. In addition, they can spot bid-rigging red flags,
such as the submission of identical bids and suspicious patterns among winning and
losing bidders.
4. Leniency
The Antitrust Division’s Leniency Policy allows companies and individuals
involved in price fixing, bid rigging, or market allocation to self-report and avoid
criminal convictions and resulting fines and incarceration. The first corporate or
individual conspirator to confess participation in an antitrust crime, fully cooperate
with the Antitrust Division, and meet additional conditions (which are set forth here)
receives leniency for the reported antitrust crime. Additional information about the
Antitrust Division’s leniency program is available at
https://www.justice.gov/atr/leniency-program.
Procurement Collusion Strike Force
The Antitrust Division leads the Procurement Collusion Strike Force (the
“PCSF”), the Department of Justice’s coordinated, national response to collusion in
public procurement. The PCSF is an interagency partnership dedicated to deterring,
detecting, investigating, and prosecuting antitrust crimes and related schemes that
target government procurement, grants, and program funding at all levels of
government—federal, state, and local.
The PCSF consists of several interagency partners: the Antitrust Division,
strategically important U.S. Attorney’s Offices, and national law enforcement
partners. The PCSF has two main objectives: 1) deter antitrust and related crimes on
the front end of the procurement process through outreach and training; and 2)
facilitate more effective detection, investigation, and prosecution of these crimes.
Contact information and more is available at: https://www.justice.gov/procurement-
collusion-strike-force.
IV. ANTITRUST ADVICE AND TRAINING
The Antitrust Division has offices in Washington, D.C.; New York; Chicago;
and San Francisco. Feel free to contact these offices with any questions or information
you may have, or to request training. The Antitrust Division’s Criminal Enforcement
Program maintains a website at https://www.justice.gov/atr/criminal-enforcement.
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