The Department of Justice (DOJ) lost its third jury trial in its mission to secure criminal convictions against companies and executives accused of labor-side antitrust violations on March 22, 2023, when a jury in Maine acquitted four home healthcare staffing executives of violating Section 1 of the Sherman Act. In United States v. Manahe, the DOJ charged Faysal Kalayaf Manahe, Yaser Aali, Ammar Alkinani, and Quasim Saesah with entering into an approximately two-month conspiracy between April and May 2020 not to hire each other’s caretakers and to fix caretaker wages.[1] After the district court declined to dismiss the indictment, holding the DOJ had successfully alleged a per se conspiracy to fix wages and allocate employees, the case proceeded to a two-week trial. At trial, defendants—all immigrants from Iraq, many of whom served as translators for U.S. forces there—admitted that they discussed setting wage levels and refraining from hiring each other’s employees, and even drafted an agreement with signature lines that outlined the terms of defendants’ discussions.[2] Defendants argued that they never reached an agreement in violation of Section 1 because the draft agreement was never signed. Defense counsel emphasized in opening statements that in defendants’ culture, “when dealing with business matters . . . the only way to confirm a commitment is to put it into a formal written contract.” Given the verdict, it appears the jury agreed.Continue Reading DOJ Loses Third Consecutive Antitrust Labor Trial

Procurement Collusion Strike Force

The Procurement Collusion Strike Force, formed by the Department of Justice in 2019, is ramping up enforcement pressures against government contractors. The Strike Force brings together the DOJ Antitrust Division criminal offices, state Attorneys General, and federal agencies such as the Department of Defense and Federal Trade Commission.[1] The Strike Force is an effort to crack down on anticompetitive activities in public procurement, which the DOJ views as particularly susceptible to the costs of collusive activity.[2] The Department was already devoting significant resources to public procurement crimes,[3] and the Strike Force represents an intensified, all-hands approach to enforcement.
Continue Reading Government Contractors Facing Increased Antitrust Scrutiny

Earlier this month, on the eve of the ABA Antitrust Spring Meeting, the Department of Justice Antitrust Division rolled out significant updates to its Leniency Program, most readily discernible through an augmented, plain-language set of 82 Frequently Asked Questions, as well as the Division’s updated Leniency Policies and Procedures and Model Corporate Conditional Leniency Letter.
Continue Reading Updates to DOJ Leniency Policy Further Complicate Decisions to Seek Antitrust Immunity; Some Suggestions from the Field

On March 2, Deputy Assistant Attorney General Richard Powers laid out a significant and aggressive criminal enforcement agenda for the Antitrust Division of the Department of Justice. While speaking at the the ABA National Institute on White Collar Crime in San Francisco, CA, Powers began his remarks by noting that the Division’s Criminal Section currently had 18 indicted cases against 10 companies and 42 individuals, including 8 CEOs or Presidents. DAAG Powers also noted that the Section had 146 open grand jury investigations – more than at any time in the last thirty years and “expect[ed] to stay busy this year and beyond.”
Continue Reading Executives Beware: DOJ Antitrust Division is Taking a Hard Look at a Wide Spectrum of Potential Criminal Violations

Congress recently took two steps towards incentivizing private participation in federal cartel enforcement:  the permanent adoption of ACPERA, and enactment of the Criminal Antitrust Anti-Retaliation Act.  While now companies may have permanent incentives to self-report cartel activity, and whistleblowing employees may be better protected from employer retaliation, no surge in individual cartel reporting should be expected absent direct whistleblower financial incentives, such as found in other federal enforcement regimes.
Continue Reading Congress Misses Opportunity to Bolster Flagging Cartel Enforcement through Whistleblowers

Over the last three decades, government antitrust enforcers and private plaintiffs in the United States have increasingly sought to apply U.S. antitrust laws to conduct by foreign businesses that is deemed to have effects on the U.S. economy. Many of these foreign businesses have been located in Asia:  since the 1990s there have been waves of U.S. criminal prosecutions and civil cases alleging anticompetitive conspiracies between Japanese, Korean, and Taiwanese sellers and manufacturers.  For most of this time, however, companies in mainland China—despite being the largest exporters of goods to the United States, first in Asia and now in the entire world—have rarely been targeted for U.S. antitrust enforcement.
Continue Reading Between a Rock and a Hard Place: Vitamin C and the Future of U.S. Antitrust Enforcement Against Chinese Companies *

On May 31, 2018, Principal Deputy Assistant Attorney General Andrew Finch delivered an important policy statement at the ABA antitrust in a Conference in Seoul, Korea. Finch remarks of May 31, 2018. The most widely reported aspect of the speech was its focus on international antitrust cooperation. Indeed, the following day Assistant Attorney General Makan Delrahim announced a formal initiative “to help finalize and join the global multilateral framework in procedures in competition law and enforcement. Delrahim’s June 1st remarks on Global Antitrust Enforcement at the Council of Foreign Relations.
Continue Reading Principal Deputy Assistant Attorney General Finch: Compliance Re-Evaluation?

Last year, as noted in this blog, the Antitrust Division issued one of its fairly rare but critically important “Frequently Asked Questions” publications concerning its Amnesty Program. In January 2017, DOJ said explicitly that for Type B amnesty it retained discretion to prosecute senior executives. Defense counsel greeted this development with widespread alarm. Type B amnesty is frequently what DOJ offers to reporting companies if DOJ had any information of any kind about the reported activity. Few thought that mattered very much until January 2017 when DOJ’s FAQ pronouncement in practical effect imposed on defense counsel the need to advise a corporate client that amnesty might not apply to senior executives—with a likely attendant chilling effect on a company’s desire to participate in the program.
Continue Reading Senior Executive Type B Amnesty Redux — A Rare Correction From DOJ (Or Not?)