Introduction

Looking ahead in 2025, we expect antitrust agencies in the U.S. and abroad to continue to prioritize enforcement against cartel conduct, which can be prosecuted criminally in the U.S. The agencies will not only continue to look for and prosecute “traditional” antitrust cartels—price-fixing, bid-rigging, and market or customer allocation agreements—but may also continue to push the boundary of what constitutes a “cartel.”

We anticipate this boundary will be pushed in four areas in 2025: i) coordination around government contracting (including “teaming” arrangements), ii) information sharing and algorithmic pricing, iii) ESG collaborations (particularly in the U.S.) and coordination around technical development and innovation, and iv) no-poach and wage-fixing agreements. Moreover, the EU and U.S. agencies will be keeping a close eye on companies under investigation to make sure they preserve relevant communications via ephemeral messaging applications and comply with document production obligations in the context of dawn raids.

We explore each of these areas in the third installment of the Wilson Sonsini Antitrust and Competition Practice 2025 Year in Preview four-part series, providing critical insights to help businesses stay ahead of potential enforcement actions and mitigate risks.

Procurement Collusion Strike Force

We expect continued enforcement activity from the Antitrust Division’s Procurement Collusion Strike Force (PCSF) in the next year. The PCSF is a multi-agency task force dedicated to deterring, investigating, and prosecuting antitrust and related cartel violations in government contracting. In April 2024, the PCSF expanded to include three new U.S. Attorneys’ Offices and the U.S. Department of Commerce Office of Inspector General, and now consists of 38 federal agencies and offices nationwide. Since its inception in November 2019, the PCSF has opened more than 145 criminal investigations, secured more than 60 criminal convictions, and investigated and prosecuted over 85 companies and individuals, impacting over $575 million in commerce. The PCSF continued to be vigilant and active in 2024, and we expect the same in 2025. Here are just some examples of the PCSF’s activity last year:

• In February 2024, four executives of an erosion control company pleaded guilty to engaging in a bid-rigging and price-fixing conspiracy involving over $100 million in publicly funded transportation construction contracts across Oklahoma. A company, its vice president, and another employee were later indicted for allegedly participating in the same conspiracy.
• In March 2024, a South Korean company and its CEO were indicted as part of the PCSF’s investigation of bid rigging and fraud in connection with work for U.S. military installations in South Korea.
• In July 2024, a jury convicted two individuals for participating in a conspiracy to fix prices, rig bids, and allocate markets for the sale of ready-mix concrete in Georgia and South Carolina.
• In October 2024, six individuals were charged with bid rigging, fraud, and payment of bribes and kickbacks in connection with the sale of IT products and services to the federal government, resulting in millions of dollars in overcharges.

Information Sharing and Algorithmic Pricing

In 2024, the antitrust agencies aggressively pursued cases related to information exchange and algorithmic pricing, and we expect this to continue to be an enforcement priority next year as previewed in several statements and actions by the agencies. The below are just a few examples:

• In January 2024, the European Commission (EC) carried out unannounced inspections at the premises of companies active in the tire industry including Michelin, Goodyear and Bridgestone. The EC’s second dawn raid in June against a consultancy firm confirmed that the agency’s concern is over information exchange and price coordination amongst tire manufacturers via consultancy firms as well as public communication channels.
• In August 2024, the U.S. Department of Justice (DOJ) filed a civil antitrust lawsuit against revenue management software company RealPage for allegedly conspiring with landlords to raise apartment rental rates using algorithmic pricing software. In January of this year, the DOJ amended its complaint to add six landlords for participating in algorithmic pricing schemes with RealPage. The Antitrust Division also launched a criminal investigation into RealPage’s conduct but closed that investigation in December without taking any action.
• Notably last year, the DOJ filed “Statements of Interest” in several class action lawsuits brought against companies using the same revenue management software, in which the agency made it clear that concerted action to use pricing algorithms can violate Section 1 of the Sherman Act. The DOJ stated in one case that “Section 1…prohibits competitors from delegating key aspects of pricing decisionmaking to a common entity, even if the competitors never communicate with each other directly” and that “an agreement among competitors to fix the starting point of pricing is per se unlawful, no matter what prices the competitors ultimately charge.”¹ In another case, the DOJ stated that “(1) information sharing alone can violate Section 1 [of the Sherman Act], even without proof of an agreement to fix prices; and (2) information exchanges that report only aggregated data can violate the antitrust laws, even where the information is not linked to specific competitors.”²

In light of these and other recent actions, we expect the competition authorities’ focus on information sharing and algorithmic pricing to increase in 2025.

ESG Collaborations

In the U.S. particularly, we expect greater scrutiny around ESG collaborations under the new Administration in 2025. For the past several years, the antitrust agencies have warned that coordinating around ESG carries antitrust risks just as any other competitor collaboration, yet we have not seen the U.S. agencies bring an enforcement action around ESG initiatives. This is likely due to the former Administration’s promotion of clean energy initiatives. But starting in 2025, this dynamic will likely change in the U.S. under the new Administration, which has already stated its commitment to protect the oil and gas industry, likely signaling stricter antitrust scrutiny of any ESG collaborations focused on carbon reduction to the detriment of fossil fuel industries.

We have already seen several Republican-led states and the House Judiciary Committee taking action soon after the Presidential election. For example:

• On November 19, 2024, Nebraska Attorney General Mike Hilgers announced that the state filed an antitrust lawsuit against some of the largest heavy-duty truck manufacturers, including Daimler and Volvo, accusing them of limiting the availability of diesel-powered semi-trucks in a shift to clean electric trucks. The lawsuit alleges the truck makers are engaged in "an industry-wide conspiracy" to phase out medium and heavy-duty internal combustion vehicles, driven by California's green regulations that aim to eventually end production of such semi-trucks.
• On November 27, 2024, Republican attorneys general in 11 states led by Texas filed a joint lawsuit against BlackRock, Vanguard, and State Street, claiming the organizations’ efforts to pressure coal companies to lower carbon emissions and respond to climate change amount to anticompetitive business practices.
• On December 20, 2024, U.S. House Judiciary Committee Chairman Jim Jordan (R-OH) and Subcommittee on the Administrative State, Regulatory Reform, and Antitrust Chairman Thomas Massie (R-KY) demanded information from more than 60 U.S.-based asset managers regarding their involvement with the Net Zero Asset Managers (NZAM) initiative, which these Congressmembers described as “a woke ESG cartel.” The House Judiciary Committee released an interim staff report titled “Climate Control: Exposing the Decarbonization Collusion in Environmental, Social and Governance (ESG) Investing” in June 2024, arguing that a coalition of left-wing environmental activists and major financial institutions have colluded to force American companies to decarbonize and reach net-zero emissions.

The antitrust merits of branding such collaborations as “cartels” are dubious at best, but this does not appear to be deterring multi-faceted challenges to conduct that does not constitute a cartel and, to the contrary, is arguably pro-competitive and innovation-enhancing.

Complicating the issue around collaborations generally, the DOJ and the Federal Trade Commission (FTC) recently jointly withdrew the “Antitrust Guidelines for Collaborations Among Competitors.” The agencies stated that they “no longer provide reliable guidance to the public about how enforcers assess the legality of collaborations involving competitors.” Instead, the agencies advised businesses considering collaborating with competitors to “review the relevant statutes and caselaw to assess whether a collaboration would violate the law.”

Coordination Around Technical Development and Innovation: In the EU, the EC has been investigating auto manufacturers including Stellantis, Renault, Toyota, BMW, and Ford, as well as an industry lobby group, the European Automobile Manufacturers' Association (ACEA), for collusive conduct related to the recycling of “end-of-life” cars and vans and to rules on how recyclable vehicles must be. Competition authorities in the UK, South Korea, and China are conducting similar investigations of the same manufacturers.

No-Poach and Wage-Fixing Agreements

Although the DOJ's criminal prosecution of no-poach and wage-fixing agreements slowed in 2024 following high-profile trial setbacks in 2022 and 2023—without any criminal charges based on such conduct since March 2023—the agency has made it clear that it will remain vigilant in protecting workers and pursue more labor market cases. Deputy Assistant Attorney General for the Antitrust Division Manish Kumar warned that it would be wrong for employers to conclude that no-poach or wage-fixing conduct is “okay or being de-emphasized in our program” and that they do so “at their peril.” He also noted that the DOJ has a number of no-poach investigations currently pending and are receiving “numerous” leniency applications from employers based on no-poach conduct.

On the other hand, there have been numerous investigations of labor market conduct by national authorities in the UK, Portugal, Belgium, France, and other EU Member States. The EC has an open investigation of Delivery Hero, which involves no poach allegations. The EC also published a policy brief in May 2024 reiterating its prior guidelines that wage-fixing and no-poach agreements are likely to infringe EU competition law by object.

Preservation of Ephemeral Messages

Pursuant to the DOJ and FTC’s joint announcement in January 2024, companies and their counsel will be expected to “preserve and produce any and all responsive documents, including data from ephemeral messaging applications,” during government investigations and litigation. The agencies asserted that failure to do so could result in obstruction of justice charges, including against company counsel. Moreover, a company’s ability to effectively preserve business communications over ephemeral and encrypted messaging applications “can impact a prosecutor’s evaluation of the effectiveness of a corporation’s compliance program, as well as the assessment of a corporation’s cooperation during a criminal investigation,” thereby affecting the type and terms of the resolution available to a company.

In the EU, the EC fined in June 2024 International Flavors & Fragrances Inc. and International Flavors & Fragrances IFF France SAS (together, IFF) €15.9 million (approx. US$17.2 million) for obstructing an EC inspection in 2023. The EC found that during the inspection on March 7, 2023, a senior employee of IFF intentionally deleted WhatsApp messages exchanged with a competitor containing business-related information, after he had been informed about the inspection. The EC detected the deletions using forensic software and restored the messages. EU law provides that companies that intentionally or negligently produce incomplete business records during an inspection may be fined up to one percent of their total turnover in the preceding business year.

Section 2 Criminal Monopolization

We expect that the DOJ will continue to pursue criminal prosecutions under Section 2 of the Sherman Act after first announcing the shift in policy in 2022. In May 2024, the DOJ secured a conviction for criminal monopolization under Section 2 when an individual in Idaho pleaded guilty to conspiring to monopolize, rigging bids and allocating territories in connection with fuel truck services to the U.S. Forest Service. In another pending Section 2 criminal case, U.S. v. Martinez, et al., the DOJ filed a superseding indictment in October 2024 charging six individuals in Texas with engaging in a conspiracy to fix prices and allocate the market for transmigrante forwarding services. One individual in that case has already pleaded guilty to violating Sections 1 and 2 of the Sherman Act.

For more information on these global cartel enforcement trends, please contact Brent Snyder, Jeff VanHooreweghe, Jindrich Kloub, or any attorney in Wilson Sonsini’s antitrust and competition practice.

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[1] Statement of Interest of the United States, Cornish-Adebiyi, et al. v. Caesars Entertainment, Inc., et al., No. 1:23-cv-02536 (D.N.J. filed March 28, 2024) (emphasis in original).  See also Brief for the United States As Amicus Curiae In Support of Plaintiffs-Appellants, Gibson, et al. v. Cendyn Group, LLC, et al., No. 24-3576 (9th Cir. filed Oct. 24, 2024).

[2] Statement of Interest of the United States, In re Pork Antitrust Litigation, No. 0:18-cv-01776 (D. Minn. filed Oct. 1, 2024).