Since the early 1990s, criminal investigations and prosecutions by the Department of Justice’s Antitrust Division have focused on massive price-fixing cartels, resulting in billions of dollars in corporate fines and many years of prison time for top-level executives.

The cartels involved industries such as air and sea cargo, vitamins, dynamic random-access memory computer chips, liquid crystal display computer monitors, and most recently a wide array of automobile parts. The defendants were often multinational corporations such as Samsung, Air France/KLM, F. Hoffman-LaRoche, and Mitsubishi Electric. Antitrust prosecutions seemed to be light years away from the day-to-day business practices of small and mid-sized businesses in the DMV region.

Think again. For many decades, the Antitrust Division has criminally prosecuted per se violations of the Sherman Act. Conduct such as bid-rigging, price-fixing, and market allocation is presumed to result in unreasonable restraint of trade. Most prosecutions involve concerted action to increase prices, but the government has also prosecuted concerted action to decrease bids in manner that cheats sellers, such as in auctions of foreclosed real estate. Until recently, however, the Antitrust Division did not bring criminal prosecutions involving recruitment and hiring matters that are generally presumed to involve employment law, not antitrust.

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