In many ways, criminal antitrust enforcement during President Trump's first term illustrates what to expect under Trump 2.0. Among other highlights, the Delrahim DOJ obtained indictments and pleas involving public procurement at foreign military bases and launched the Procurement Collusion Strike Force ("PCSF") to protect taxpayer spending; executives went to trial and were found guilty of collusion involving food and financial services; and the Antitrust Division brought the first criminal cases involving labor-market collusion, pursued investigations involving consumer-facing markets like chicken and healthcare, and implemented policy changes to incentivize investment in antitrust compliance.
Based on trends during Trump 1.0 and the Biden Administration, here are our theories for Trump 2.0:
- The PCSF will continue to gain momentum as part of the Administration's broader prioritization of protecting the public fisc from fraud, waste, and abuse.
- The prioritization of international cartel enforcement will continue.
- The Antitrust Division will focus on consumer-facing markets particularly those with a broad public impact, like food and healthcare.
- Labor-market enforcement will continue but will prioritize rare cases without legal complexity and with jury appeal.
- The Antitrust Division will seek to blunt the effects of the Brewbaker decision to protect per se
- The Antitrust Division will continue to pursue novel theories of criminal liability to expand its enforcement portfolio.
- An ounce of prevention will continue to be worth a pound of cure, as prosecutors continue to prioritize incentivizing and rewarding corporate compliance efforts.
Trump 2.0 inherits a full docket of ongoing investigations'a record high of 167 pending investigations to end 2024, which is nearly double the pending investigations when Trump's first term began in 2017.1 While we await the Trump Administration's appointment of its Deputy Assistant Attorney General for Criminal Enforcement, the indications so far point toward continued and aggressive enforcement.
And, looking back, while data are an imperfect and inexact indicator of criminal enforcement, the data include indications that criminal enforcement under Trump was greater in quantity than under Biden:
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- Long Live the PCSF
The DOJ announced the formation of the PCSF in 2019 during Trump's first term.2 It is an interagency partnership to combat antitrust crimes and related schemes in government procurement, grant, and program funding.3 Since its inception, the PCSF has opened 145 criminal investigations, prosecuted 85 companies and individuals, and obtained 60 convictions.4
The PCSF gained momentum and expanded as part of the Biden Administration's whole-of-government approach to competition enforcement.5
We expect this momentum to continue during Trump's second term. Two of the Antitrust Division's upcoming criminal trials are PCSF cases.6 Moreover, the PCSF's mission aligns with the Trump Administration's focus on "sav[ing] taxpayers billions of dollars per year," based on an OECD estimate that "the elimination of bid rigging could help reduce procurement prices by 20 percent or more."7
Notably, tying into the PCSF's focus on data analytics, a recent audit by the DOT OIG used machine learning algorithms to identify potential indications of comp bidding in the award of state DOT contracts.8 Examining six states, the report estimated that over a third of contracts were potentially affected by comp bidding, resulting in $1.19 billion in higher costs.9 We expect PCSF's work to continue.
- International Cartels
In contrast to prior enforcement eras, the cartels that the Antitrust Division has uncovered and prosecuted in recent years have skewed domestic. During Trump's first term, only a handful of international cartels were exposed. This included the investigation and prosecution of five South Korean oil companies for conspiring to rig bids and fix prices for defense fuel supply contracts on U.S. military bases in South Korea.10
We do not see the lack of international cartel prosecutions during Trump's first term as an indication that they were not an Administration priority. On the contrary, the South Korea fuel supply cartel prosecution represented a major enforcement effort and was among the Administration's highest-priority matters. Likewise, the first Trump Administration celebrated a series of extraditions, indicating that "[t]he Antitrust Division will leave no stone unturned including working with enforcers around the world to bring to justice those who infect international markets with collusion."11
Recent announcements indicate the...
