On November 21, 2024, DOJ commemorated the fifth anniversary of the Strike Force with a celebration and panel discussions. The DOJ touted the Strike Force’s success by pointing to multiple metrics, including the growth of the program to partner with new agencies in new geographic locations, the large amount of training provided, and the significant criminal fines recovered. In this article, we look back at the past five years of the Strike Force and analyze its enforcement trends, examining the industries commonly involved, the geographic distribution of case activity, and the resolution of cases. We will then discuss the potential future of the Strike Force, especially in light of the recent change in administration. Lastly, this article will present best practices for industries and companies that may be ripe investigation targets based on enforcement trends during the first five years of the Strike Force.
Background on Criminal Antitrust Enforcement
Given the Strike Force’s focus on antitrust crimes and related schemes, it is logical that most charges brought in cases involving the Strike Force involve Sherman Act violations, contained in Title 15 of the U.S. Code. Section 1 of the Sherman Act prohibits contracts, combinations, and conspiracies “in restraint of trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 1. Section 2 makes illegal monopolization of, or attempt or conspiracy to monopolize, “any part of the trade or commerce among the several States, or with foreign nations.” Id. § 2.
The Sherman Act may be enforced civilly or criminally, with the focus of the Strike Force being on criminal enforcement. Criminal enforcement typically involves per se violations of the law, usually involving price-fixing, market allocation, or bid rigging. These schemes are often referred to as hardcore cartel activities. Criminal penalties for Sherman Act violations include fines of up to $1 million for individuals and $100 million for corporations, as well as up to 10 years’ imprisonment.
Strike Force prosecutors may charge violations beyond the Sherman Act if there is adequate evidence. Such charges are typically brought under Title 18 of the U.S. Code, such as wire fraud, theft, or bribery concerning programs receiving federal funds, and conspiracy to commit an offense against or to defraud the United States. 18 U.S.C. §§ 1343, 666, 371. Conviction on any procurement-related crime, whether brought under Title 15, Title 18, or another provision of federal law, also will likely result in debarment from federal procurement for some significant period of time.
Enforcement Activity
As of November 2024, the Strike Force reports that it has opened over 145 criminal investigations, obtained more than 60 guilty pleas and trial convictions, and secured over $65 million in fines and restitution. Procurement Collusion Strike Force, supra. It also has trained more than 39,000 government agents and procurement officials to better look for and assess potential procurement fraud.
The Strike Force has expanded both in geography and in its interagency partnerships since its inception. It has doubled in size over its existence. It currently partners with 12 different law enforcement agencies, as well as a number of foreign agency partners, and is present in 25 judicial districts across the United States. This expansion was in line with a stated goal of President Biden’s administration to counter corruption in all its forms, including in the antitrust arena. See The White House, United States Strategy on Countering Corruption (Dec. 20, 2021).
The Strike Force was introduced during President Trump’s first term in office, and under President Biden the case load and reach of the Strike Force grew to include an international component to detect and deter misconduct impacting US tax dollars spent overseas by international cartel activity. The DOJ reports that the Strike Force has consistently received the funding it needs to not only continue but to expand the scope of its work.
In January 2025, the Strike Force transitioned back to a second Trump administration. Although it remains to be seen how the new administration will deploy the Strike Force, President Trump’s stated goal of reducing government spending may align well with continuing the Strike Force in order to combat fraud in government procurement and protect taxpayer dollars. Insiders generally expect that criminal antitrust enforcement, with an emphasis on price-fixing and bid rigging, is expected to remain an important focus of the DOJ under the new administration, marrying well with the objectives of the Strike Force. This is consistent with the DOJ criminal enforcement data showing that criminal antitrust enforcement largely remained consistent between President Trump’s first term and President Biden’s term. Criminal Enforcement Trends Charts, Antitrust Div. US Dep’t of Just. (Oct. 29, 2024). In announcing Gail Slater as his pick to head the DOJ Antitrust Division, President Trump expressed support for vigorous antitrust enforcement against “big tech.” Such a focus would largely fall outside of the purview of the Strike Force. However, Ms. Slater also has served as an advisor to Vice President J.D. Vance, who has been a supporter of robust antitrust enforcement, which may signal ongoing support for the types of antitrust cases focused on by the Strike Force.
Trends in Filed Charges
As the Antitrust Division has devoted more resources to growing the Strike Force, an intriguing question is whether that has impacted other criminal antitrust enforcement priorities and decision making by the Antitrust Division. Although it is not possible from publicly available data to focus solely on cases in which the Strike Force was involved, there are significant lessons to be learned by examining criminal antitrust cases brought by the DOJ during the existence of the Strike Force. The statistics in this article are based on data available on the DOJ’s Antitrust Case Filings website. Antitrust Case Filings, Antitrust Div., US Dep’t of Just. Filings were filtered for “criminal” cases and review was limited to October 1, 2018—just before the launch of the Strike Force—through September 30, 2024, reflecting DOJ’s fiscal years 2019 through 2024.
DOJ reports filing a total of 118 criminal antitrust cases in fiscal years 2019 through 2024, although it has published filing documents for only 91 cases on its Antitrust Case Filings webpage. Criminal Enforcement Trends Charts, supra; Antitrust Case Filings, supra. These public documents comprise the basis of our data collection and the following analysis of DOJ Criminal Antitrust case activity. As illustrated in Figure 1, of the 91 public filings we reviewed from DOJ’s webpage:
- 60 cases included only Title 15 charges;
- 14 cases included only Title 18 charges; and
- 17 cases involved both Title 15 and Title 18 charges.
As shown in Figure 2, these publicly filed cases include 97 Title 15 counts and 62 Title 18 counts.
Twenty-nine of the 91 public filings—or roughly 32% of the cases—involved government procurement (the Strike Force cases), increasing the likelihood of the Strike Force’s involvement. Of the 29 Strike Force cases, 11 cases had only Title 15 charges, 10 cases included only Title 18 charges, and eight cases had both Title 15 and Title 18 charges. These 29 Strike Force cases account for 62 total Title 15 and Title 18 charges—or roughly 35% of total Antitrust Division charges in publicly filed cases. The 29 Strike Force cases included 24 Title 15 counts and 38 Title 18 counts.
As these figures show, the trend from FY2020 through FY2023 showed that the Antitrust Division was bringing fewer pure Title 15 cases, while at the same time bringing more Title 18 cases and hybrid cases. This pattern may reflect the impact of devoting more resources to public procurement cases that can involve related violations beyond traditional antitrust offenses, with fewer resources being devoted to non-procurement antitrust detection and investigation. However, the FY2024 case filings may indicate that the decline in Title 15 case filings was an anomaly, but it will be important to observe what a second Trump administration emphasizes in terms of criminal antitrust enforcement focus.
Geographic Trends
As discussed herein, the Strike Force has expanded over the past five years, including with respect to its geographical reach. To carry out its work, the Strike Force has developed partnerships between the Antitrust Division, US Attorneys’ Offices, and various federal and state agencies. At its inception in 2019, the Strike Force partnered with 13 judicial districts. In 2020, nine new US Attorneys’ Offices joined the Strike Force, and over the subsequent four years it grew to be present in 25 districts overall. Press Release, Off. of Pub. Aff., US Dep’t of Just., Justice Department’s Procurement Collusion Strike Force Announces Eleven New National Partners (Nov. 12, 2020); Press Release, Off. of Pub. Aff., US Dep’t of Just., Assistant Attorney General Jonathan Kanter Delivers Remarks at the Procurement Collusion Strike Forces’s Fifth Anniversary Event (Nov. 21, 2024).
During the Strike Force’s lifespan, the Antitrust Division has brought criminal antitrust cases in 29 federal districts, which span 22 states, the District of Columbia, and Puerto Rico (see Figure 3). Just five states make up 44 percent of the total cases filed: Texas (12 cases filed), Pennsylvania (eight cases filed), Connecticut (seven cases filed), Michigan (seven cases filed), and Illinois (six cases filed). Notably, 30 percent of the cases come from four districts: the Eastern District of Pennsylvania (EDPA) (eight cases filed), the Eastern District of Michigan (EDMI) (seven cases filed), the Northern District of Illinois (NDIL) (six cases filed), and the Southern District of Texas (SDTX) (six cases filed). The high concentration of cases in these four districts primarily relate to four separate investigations: alleged price-fixing in generic drugs (EDPA), alleged conspiracy to restrain trade of asphalt paving services (EDMI), alleged bid rigging and price-fixing of flooring services and products (NDIL), and alleged price-fixing of promotional products such as lanyards and buttons (SDTX).
California, Florida, Minnesota, Oklahoma, Tennessee, and the District of Columbia, each of which had four or five cases filed, make up another 30% of total cases filed. The remaining 26% of cases come from 12 more states and Puerto Rico, each of which had between one and three cases filed: Alaska, Colorado, Georgia, Idaho, Louisiana, Maryland, Mississippi, Montana, Nevada, New Jersey, New York, and North Carolina.
Focusing specifically on the 29 Strike Force cases, those cases were brought in 14 states and the District of Columbia from 2019 to 2024 (see Figure 4), with Texas and the District of Columbia having the most cases filed, at five and four, respectively. California had three filed cases; two cases were filed in Alaska, Maryland, Minnesota, Mississippi, and New Jersey; and one case each was filed in Georgia, Idaho, Louisiana, Montana, Nevada, New York, and North Carolina.
Should the Strike Force slow its geographic expansion, we expect that these enforcement trends will continue, with a continued focus on states like Texas, Illinois, Pennsylvania, Florida, and California. The elevated enforcement in these states also may reflect that they were part of the original cohort of US Attorneys’ Offices that partnered with the Strike Force and therefore have been involved in the Strike Force since its inception five years ago. Although the Strike Force has consistently grown during its lifetime, it remains to be seen whether the new Trump administration will make further geographic and partner expansion a priority to expand the reach of the Strike Force.
Industry Case Trends
Many industries are represented in the 91 public DOJ criminal antitrust case filings between October 2019 and September 2024. The most common industries represented include construction, health care, and sale of consumer goods. Based on the DOJ’s Industry Coding system, from October 2019 to September 2024, 32 unique industry tags were employed to categorize 76 cases. Antitrust Case Filings, supra. Fifteen cases were not assigned an industry tag by DOJ. Five tags were used substantially more often than all other tags (see Figure 5): Commercial and Institutional Building Construction (seven tags), Drywall and Insulation Contractors (seven tags), Electronic Shopping and Mail Order Houses (eight tags), Flooring Contractors (six tags), and Pharmaceutical and Medicine Manufacturing (eight tags). All other industry codes were used between one and four times.
The 29 Strike Force cases involved a smaller number of industries, with the emphasis on Commercial and Institutional Building Construction (seven tags), Security Guards and Patrol Services (four tags), Engineering Services (two tags), Facilities Support Services (two tags), and Language Schools (two tags). This demonstrates that the construction sector was a significant focus of Strike Force enforcement activity during its first five years.
Regulatory oversight varies across industries and, where it is greater, the Strike Force, which has touted its increasing use of data analytics, may be capable of employing new tools to identify suspect pricing and bidding patterns. The health care sector, for example, is highly regulated, drawing oversight from multiple federal agencies, including the Department of Health and Human Services, the Food and Drug Administration, the Centers for Disease Control and Prevention, and the Centers for Medicare and Medicaid Services. Competition in health care also has garnered increased attention in recent years from the Federal Trade Commission, the Antitrust Division, and state agencies. Not only are there significant regulatory frameworks within which health care companies must operate, but there also are robust incentives for both self-disclosure and whistleblower reporting such as awards stemming from False Claims Act reports. Although firms in highly regulated industries may be familiar with regulatory scrutiny, it is sometimes the case that such firms place comparably less attention and focus on compliance with antitrust laws than they place on other areas of compliance. Therefore, companies operating in industries that have been a focus of antitrust and Strike Force enforcement efforts should consider building out their compliance programs to specifically focus on potential antitrust violations, particularly in the procurement space.
Similarly, companies operating in the construction and consumer goods industries, which have been the target of Strike Force scrutiny, should develop or update their antitrust compliance programs. Compliance programs should ensure adequate training for employees to recognize potential antitrust risk and potential violations with clear systems to allow reporting of antitrust concerns. Additionally, companies in these industries often participate in trade associations and other groups where competitors are present, which creates an increased risk of engaging in—or the appearance of engaging in—anticompetitive activities. Not surprisingly, the Antitrust Division has expressed significant concerns about unrestricted participation in these types of organizations.
Under the incoming administration, the focus of the Strike Force may shift to different industries, depending on President Trump’s priorities. Health care will likely remain a focus, as both sides of the aisle have placed increased scrutiny on the potentially anticompetitive practices of health care firms. Press Release, H. Comm. on Oversight and Accountability, Hearing Wrap Up: Oversight Committee Exposes How PBMs Undermine Patient Health and Increase Drug Costs (July 23, 2024). Experts expect that President Trump also may turn an eye to industries where consumers most feel the impact of anticompetitive pricing,such as food, technology,and e-commerce, in addition to construction andconsumer goods. Serafina Smith, Antitrust Enforcement in Second Trump Administration Likely to Focus on Healthcare, Other Consumer-Facing Industries, ION Analytics (Nov. 14, 2024).
Trend of Increasing Title 18 Charges Expected to Continue: Impact of United States v. Brewbaker
A potential factor in the types of charges brought in future cases is the recent decision in United States v. Brewbaker, 87 F.4th 563 (4th Cir. 2023), cert. denied, 2024 WL 4743079 (Nov. 12, 2024). In 2020, the Antitrust Division brought charges against Brent Brewbaker, a former executive at an engineering firm, for rigging bids for public infrastructure projects solicited by the North Carolina Department of Transportation. The criminal indictment alleged that Brewbaker and his company conspired with a distributor and submitted hundreds of collusive bids over the course of nearly a decade. His employer pled guilty to bid rigging and conspiracy to commit mail and wire fraud. Brewbaker, however, went to trial, which resulted in a conviction for bid rigging under Title 15 and mail and wire fraud under Title 18. He was sentenced to 18 months in prison and ordered to pay a criminal fine of $111,000.
Brewbaker’s conviction was based on the per se standard under the Sherman Act, which only requires the DOJ to prove that competitors entered into an agreement to rig bids or fix prices; under that standard, the DOJ does not need to separately prove that the agreement harmed competition. On appeal to the Fourth Circuit, Brewbaker argued that the court erred in applying the per se standard and should instead have analyzed his conduct using the “rule of reason.” Under this standard, the Antitrust Division would need to prove that the anticompetitiveeffect of any agreement outweighed the agreement’s potential benefits to competition. According to Brewbaker, this standard was appropriate due to the vertically integrated relationship between his former employer and its distributor, who were alleged to have conspired to rig bids.
On December 1, 2023, the Fourth Circuit reversed Brewbaker’s conviction on the Sherman Act count (but not the Title 18 counts) because the indictment failed to adequately allege a per se violation under the Sherman Act. Id. The court focused on the relationship between the parties, noting that the engineering firm and the distributor were not purely horizontal competitors that competed against each other for contracts and customers; instead, they had a “hybrid” relationship wherein they sometimes competed horizontally, but they also had a vertical relationship where they could serve each other as a customer and a supplier. Because this type of dual-distribution relationship could potentially have pro-competitive effects, the court found that the conduct alleged in the criminal indictment did not necessarily warrant application of the per se standard on the Title 15 count.
The Fourth Circuit’s ruling in Brewbaker may make it more difficult to charge companies and individuals with per se criminal antitrust violations in situations where the competitors also have a vertical relationship. However, the decision is unlikely to impact the Strike Force’s efforts to investigate procurement fraud and collusion even against parties with alleged vertically integrated relationships. One possible outcome of the Brewbaker decision is that the Antitrust Division will be incentivized to add Title 18 charges to Strike Force and other cases if there are both horizontal and vertical components to the relationships among the parties involved in the relevant conduct, even where the core conduct implicates the Sherman Act versus other statutes. This may result in an increase in the number of Strike Force cases with both Title 15 and Title 18 charges, or with stand-alone Title 18 counts.
Best Practices
Companies should be aware that the Antitrust Division and its partners are actively investigating and prosecuting government procurement collusion and fraud through the Strike Force. Any company that bids for government contracts at the federal, state, or local level should remain vigilant and ensure compliance with antitrust laws and other laws impacting government procurement. Companies also should familiarize themselves with self-disclosure and whistleblower programs that have received increased attention from the DOJ, including US Attorney partners in the Strike Force program. Understanding the structure of these programs, and their attendant risks and rewards will aid in the creation and implementation of effective compliance programs that both prevent and detect antitrust violations in the procurement space.
In November 2024, the Antitrust Division updated its guidance on how it will evaluate Corporate Compliance Programs when conducting Criminal Antitrust Investigations. Antitrust Div., US Dep’t of Just., Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (Nov. 2024). Companies, in turn, should assess how their existing compliance programs align with the Division’s current priorities and make improvements and adjustments as needed. To reduce the risk of Strike Force scrutiny, companies involved in government procurement contracting should invest in robust compliance programs that incorporate the following elements:
- Create a culture of compliance with demonstrated engagement by and training for senior leadership, including the board of directors and executives.
- Designate a dedicated antitrust compliance officer who has familiarity with the antitrust laws and their application to the relevant industry. The antitrust compliance officer should have autonomy and authority to implement and enforce the program.
- Provide consistent and regular antitrust-specific training for employees, tailored to the business activities of the organization and designed to help employees spot anticompetitive conduct and red flags.
- Implement a system for tracking and evaluating involvement in government procurement activities.
- Evaluate participation in trade association activities and develop clear guidance regarding the topics and information that can be discussed in these settings.
- Perform a risk assessment regarding how the company uses or employs artificial intelligence or pricing algorithms, third-party data analytics, and market or pricing information when preparing contract proposals.
- Implement a confidential reporting mechanism that allows employees to make anonymous reports and provides for the prompt and thorough investigation of such reports.
- Assess data preservation policies and protocols particularly for electronic communications, including ephemeral messages, and other third-party messaging platforms.
- Dedicate adequate resources to the investigation and remediation of any reports of anticompetitive conduct. Companies also should consider whether it would be appropriate to include incentives for employees to comply with the antitrust guidance and disciplinary actions for violators.
Conclusion
Antitrust enforcement will no doubt be adjusted under the second Trump administration, but criminal antitrust enforcement focused on government procurement will continue to be a high priority. Companies and individuals engaged in government contracting and procurement programs can expect increased attention and investigative activity, which will include the Strike Force’s use of data analytics, to detect potential antitrust violations and related offenses.
