Where Have We Been, and Where Are We Going? The Criminal Prosecution of Buyer Cartels

The announcement in October 2016 that the Antitrust Division of the U.S. Department of Justice intended “to criminally investigate naked no-poaching or wage-fixing agreements,” or buyer cartels for labor, was widely viewed as a momentous shift in enforcement policy. This was not only because of the focus on labor as a commodity was previously not a significant area of interest for antitrust enforcement — much less criminal enforcement — but also because it represented a buyer-side agreement. But, in light of the Division’s history prosecuting other buyer cartels, particularly auction bidders, why has this new criminalization policy sent shock waves through the business world? Does the difference between buyer and seller cartels matter and, if so, how? As the Division enters this brave new world of prosecuting buyer cartels for labor, answers to these questions will help establish guideposts for understanding what the Division is doing, why it is doing it, and some of the likely consequences. Time will tell if courts support the Division’s aggressive interpretation of its authority or reject the assertion that this is per se conduct that the Division just didn’t bother pursuing criminally for the past 130 plus years since the Sherman Act was passed.

By Lisa M. Phelan, Joseph Charles Folio III & Hannah Elson¹

The prosecution of buyer cartels as conduct contrary to antitrust laws is not new. Although buyer cartels are a minority of the cartel prosecutio