Federal Antitrust Criminal Defense

The Department of Justice will prosecute you for what your competitors also did. That is the central tension of federal antitrust enforcement, and it is the reason the distinction between parallel conduct and actual conspiracy determines whether someone goes to prison or goes home. In fiscal year 2025, the Antitrust Division opened close to one hundred criminal investigations, filed twenty-four percent more cases than the year before, and secured a twelve-hundred-percent increase in prison days imposed. Those numbers represent people. Executives. Owners of companies who believed a handshake or a phone call would remain private.

Section 1 of the Sherman Act prohibits agreements that restrain trade. Section 2 prohibits monopolization. The criminal penalties under the current statute permit fines of up to one hundred million dollars for a corporation and one million dollars for an individual, plus ten years of imprisonment. When the gain to conspirators or the loss to victims exceeds one hundred million dollars, the fine ceiling doubles to match. These are not theoretical maximums. The Procurement Collusion Strike Force alone has produced over seventy-five guilty pleas and trial convictions, with more than sixty-five million dollars in fines and restitution since its creation.

What separates criminal antitrust from civil antitrust is intent. The Division reserves criminal prosecution for hard-core cartel conduct: price fixing, bid rigging, and market allocation. These are per se violations. A court will not entertain argument about whether the restraint was reasonable or whether the market benefited. The Supreme Court settled this long ago. Proof of a conspiracy, proof that its purpose was to raise prices, and proof that it caused or contributed to a price increase satisfies Section 1. No justification is permitted.

Bid rigging remains the Division’s obsession. The scheme is old. Two or more firms agree in advance which one will submit the winning bid on a government contract, and the others submit deliberately high or incomplete proposals. Sometimes they rotate winners across contracts. Sometimes the losing bidders receive subcontracts as compensation. In January 2025, the Division announced criminal charges against six individuals for rigging bids on IT services sold to the Department of Defense. Four of the six pleaded guilty within days of the announcement. The speed of those pleas tells a particular story about the weight of the evidence the government had assembled before anyone knew an investigation existed.

Price fixing operates on a similar geometry. Competitors agree, whether through explicit communication or through an intermediary, to set prices at a certain level or within a certain range. The agreement need not be written. It need not even be spoken aloud in a single room. Courts have found conspiracy in patterns of communication followed by simultaneous price changes. The distinction that matters, and that a defense attorney must isolate with precision, is between agreement and observation. Parallel pricing, where competitors independently arrive at similar prices because market conditions dictate it, is lawful. The prosecution must prove an actual meeting of the minds.

That evidentiary burden is where defense begins.

Grand jury investigations in antitrust cases often run for years before a target receives notice. The Division uses cooperating witnesses, electronic surveillance, foreign government assistance through mutual legal assistance treaties, and extensive document review. By the time charges appear, the government has constructed its case with a patience that most defendants do not expect. Early intervention by counsel, before indictment, during the investigation phase, changes the architecture of what follows.

The leniency program is the single most consequential feature of modern antitrust enforcement. The first corporation to report a criminal antitrust violation and cooperate receives complete immunity from prosecution. Its officers and directors receive nonprosecution protection. Every subsequent participant in the same conspiracy receives no such protection. This structure produces a race to the government’s door. It also produces witnesses whose testimony carries the particular credibility of self-interest: they cooperated to avoid prison, and the jury will know that, but the documentary evidence they bring tends to corroborate what they say. Defending against a leniency applicant’s testimony requires dissecting the terms of their cooperation agreement and the promises made to them, not merely attacking their character.

In April 2025, the Division secured its first guilty verdict in a criminal labor-market antitrust case. United States v. Lopez involved a home healthcare staffing executive convicted for conspiring to suppress wages paid to nurses in the Las Vegas area. The defendant also faced wire fraud charges for concealing the federal investigation during the sale of his company. The Sherman Act count carries ten years. Each wire fraud count carries twenty. The expansion of criminal antitrust into labor markets signals that the Division’s theory of harm now extends to employees as victims, not only consumers. Wage-fixing and no-poach agreements between employers have entered the category of conduct the government will punish with incarceration.

Sentencing data from the United States Sentencing Commission shows that approximately one-third of antitrust offenders sentenced under the antitrust guideline receive prison-only sentences, with a median term of six months and a range from two weeks to four years. Those numbers predate the current enforcement posture. Acting Deputy Assistant Attorney General Daniel W. Glad has stated publicly that individuals should expect lengthy prison sentences. The twelve-hundred-percent increase in prison days imposed in 2025 suggests the Division is delivering on that statement.

A defense in these cases can take several forms, but each depends on factual specificity. The absence of an agreement is the most complete defense. If the government cannot prove that the defendant entered into a conspiracy, Section 1 does not apply. This requires demonstrating that pricing decisions, bid submissions, or market behavior resulted from independent business judgment rather than coordination. Expert economic testimony on market structure, pricing patterns, and the plausibility of independent action becomes the vehicle for this argument.

Where an agreement existed but the defendant’s participation is in question, the defense shifts to the scope of the conspiracy and the individual’s knowledge. Not everyone employed by a corporation that engaged in price fixing knew about or participated in the scheme. The government must link the individual defendant to the conspiratorial agreement through their own words, actions, or knowing participation. Corporate liability is broad. Individual liability requires more.

The new whistleblower rewards program, announced in July 2025 as a collaboration between the Antitrust Division and the United States Postal Service, adds another pressure point. Individuals who report criminal antitrust violations resulting in fines above one million dollars may receive up to thirty percent of the criminal fine. This creates an incentive structure that runs parallel to the leniency program but reaches a different population: employees, former employees, and third parties who observed the conduct but did not participate in it. The information environment around antitrust conspiracies has changed. Silence is less reliable than it was.

DEFENSE TEAM SPOTLIGHT

Todd Spodek

Lead Attorney & Founder

Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.

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The Procurement Collusion Strike Force concentrates its work on fraud and collusion in government contracting. Over one hundred forty federal grand jury investigations have been opened under its authority. The cases span military procurement, infrastructure projects, and technology services. Companies and individuals doing business with the federal government occupy a position of particular exposure. The government treats corruption in its own supply chain as a priority, and the investigative resources committed to this area reflect that treatment.

What compounds the difficulty of antitrust defense is the intersection with other federal statutes. Bid rigging on government contracts invites charges under the False Claims Act. Concealment of an investigation during a corporate transaction invites wire fraud, as Lopez demonstrated. Tax evasion on proceeds from a price-fixing scheme invites a separate set of penalties. The Antitrust Division does not operate in isolation. It coordinates with the FBI, the Postal Inspection Service, the Defense Criminal Investigative Service, and inspectors general across federal agencies. A single set of facts can produce charges under multiple statutes, each carrying its own sentencing range, and the cumulative exposure is what drives plea negotiations.

Representation in these cases requires counsel who understands both the economics of the alleged market and the mechanics of federal criminal procedure. The two disciplines do not often coexist. An attorney who can cross-examine a cooperating witness but cannot explain to a jury why independent pricing looks different from coordinated pricing will lose the case on the evidence. An attorney who understands oligopoly theory but has never tried a federal criminal case will lose it on procedure.

Spodek Law Group defends individuals and corporations facing federal antitrust investigations and prosecutions. The firm handles matters involving price fixing, bid rigging, market allocation, and the expanding category of labor-market antitrust violations. If you are aware of a grand jury investigation, have received a target letter, or believe your industry is under scrutiny by the Antitrust Division, contact the firm. The earlier counsel engages with the facts, the broader the range of outcomes that remain available. Call Spodek Law Group or submit a consultation request through this site.