Criminal Antitrust Defense

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

Most antitrust enforcement is civil. A narrow band of conduct, however, is prosecuted as a federal crime — and when the Department of Justice’s Antitrust Division opens a criminal investigation, the exposure is severe: years in prison for individuals and fines that can reach into the hundreds of millions of dollars. If your company or your conduct has drawn that kind of scrutiny, an experienced antitrust defense attorney should be involved from the first contact.

We are Elizabeth Franklin-Best, P.C., a federal criminal defense and appellate firm that represents companies and executives in criminal antitrust matters nationwide. Our principal attorney, Elizabeth Franklin-Best, practices exclusively in federal courts and agencies; she is admitted to the United States Supreme Court and all twelve federal circuits and has appeared in more than 330 federal proceedings, the kind of nationwide federal reach a Sherman Act prosecution demands. Best Lawyers in America selected her as its 2026 “Best Lawyer” in Appellate Practice. Criminal antitrust is, at its core, a conspiracy charge, and we defend it by holding the government to proof of a genuine agreement and a guilty intent.

This guide explains what criminal antitrust is, the conduct the Sherman Act makes a crime, what prosecutors must prove, the penalties involved, and how a defense is built. It is general legal information, not legal advice. If you are under investigation or charged, we offer a paid, one-hour initial consultation to review your situation. This guide sits within our white-collar crime defense practice.

Quick Answer

Question	Answer
What is criminal antitrust?	A federal crime under the Sherman Act — an agreement among competitors to fix prices, rig bids, or allocate markets, customers, or territories.
Is all antitrust conduct criminal?	No. Criminal prosecution is reserved for hardcore cartel agreements. Most other conduct is handled civilly under the rule of reason.
What must the government prove?	An agreement among competitors, a per se unlawful restraint, an effect on interstate commerce, and the defendant’s knowing participation.
What penalties can apply?	For individuals, up to 10 years in prison and a $1 million fine; for companies, up to $100 million — or twice the gain or loss.
What does an initial consultation cost?	Our initial consultation is a paid, one-hour meeting focused on your exposure and your options.

Key Takeaways

• Criminal antitrust enforcement targets a narrow set of “hardcore” agreements: price-fixing, bid-rigging, and market or customer allocation among competitors.
• These offenses are per se illegal — the agreement itself is the crime, and its reasonableness is not a defense.
• Most other business conduct is judged by the rule of reason and handled as a civil matter, not a crime.
• Criminal antitrust is an intent crime — the Supreme Court has held that a defendant’s state of mind is an element the government must prove.
• Independent pricing decisions and merely following a competitor’s prices — without an agreement — are not antitrust crimes.
• The Antitrust Division’s leniency program can offer the first company to self-report a path to avoid prosecution, which makes timing critical.

What Is Criminal Antitrust?

Criminal antitrust is the prosecution of competitors who agree to subvert the market instead of competing in it. The federal antitrust laws are mostly enforced through civil litigation, by the government and by private plaintiffs. But the Department of Justice’s Antitrust Division reserves criminal charges for a specific category of conduct — the naked cartel agreement, in which rivals agree to fix prices, rig bids, or carve up markets among themselves.

The line between civil and criminal antitrust matters enormously. A great deal of aggressive, even hardball, business conduct is lawful, or at most a civil concern decided by weighing its competitive effects. Criminal liability is different. It is aimed at agreements that have no purpose other than to defeat competition, and it carries prison time. Understanding which side of that line conduct falls on is the first and most important question in any antitrust matter.

The Sherman Act and Per Se Offenses

Criminal antitrust prosecutions are brought under Section 1 of the Sherman Act, 15 U.S.C. § 1, which prohibits every contract, combination, or conspiracy in restraint of trade. The courts have long held that certain agreements are so plainly anticompetitive that they are unlawful “per se” — automatically, without any inquiry into their reasonableness or actual effect. The rule traces to United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940), which held that any combination formed to raise, depress, fix, peg, or stabilize prices is illegal in itself — and that the fairness of the resulting prices is no defense. The hardcore per se categories are:

• Price-fixing — competitors agreeing on the prices, price ranges, discounts, or terms they will offer.
• Bid-rigging — competitors agreeing in advance who will win a contract, through cover bids, bid suppression, or bid rotation.
• Market allocation — competitors dividing customers, territories, or product lines so they no longer compete for them.

Because these are per se offenses, a defendant cannot defend a criminal case by arguing that the agreement was reasonable, that prices stayed fair, or that the arrangement produced benefits. Those arguments belong to the rule of reason, which governs other kinds of restraints in civil cases. In recent years, the Antitrust Division has also treated certain labor-market agreements — “no-poach” agreements not to hire each other’s employees, and wage-fixing agreements — as criminal per se violations.

Most criminal antitrust cases are charged under Section 1, which requires an agreement between two or more parties. Section 2 of the Sherman Act, 15 U.S.C. § 2, separately makes it a felony to monopolize, attempt to monopolize, or conspire to monopolize a market — conduct that can involve a single firm acting alone. For decades the Division charged Section 2 only civilly, but it revived criminal monopolization enforcement in 2022. In United States v. Zito, a Montana paving executive pleaded guilty to attempted monopolization for proposing that a competitor stop bidding on highway crack-sealing work in exchange for a payoff — the first criminal Section 2 prosecution in modern memory. Section 2 carries the same statutory maximums as Section 1: up to ten years in prison for an individual and substantial fines.

What the Government Must Prove

To convict in a criminal antitrust case, the government must prove the following beyond a reasonable doubt:

• An agreement. Two or more competitors entered into an agreement or conspiracy — a genuine meeting of the minds, not merely similar conduct.
• A per se unlawful restraint. The agreement was to fix prices, rig bids, or allocate markets — conduct that is unlawful per se.
• An effect on interstate commerce. The restraint occurred in, or affected, interstate or foreign commerce.
• Knowing participation. The defendant knowingly joined the agreement. In United States v. United States Gypsum Co., 438 U.S. 422 (1978), the Supreme Court held that a defendant’s state of mind is an element of a criminal antitrust offense that cannot be presumed — not even from proof that the conduct affected prices.

The agreement element is the heart of the case. Antitrust law draws a sharp distinction between an agreement and independent action. Competitors are free to watch the market and to set their own prices in response to what rivals do. That kind of “conscious parallelism” — independent businesses reaching similar decisions on their own — is not a crime. The government must prove an actual agreement to coordinate, and it usually must do so through circumstantial evidence and the testimony of cooperating witnesses.

Applied insight. Cartel cases are built on cooperators. The first company through the door typically receives leniency in exchange for naming everyone else, so the government’s narrative often arrives pre-packaged by a competitor with every incentive to maximize the conspiracy. Testing the credibility and the self-interest behind that account is central to the defense.

Penalties and the Leniency Program

A criminal Sherman Act violation is a felony. An individual faces up to 10 years in prison and a fine of up to $1 million; a corporation faces a fine of up to $100 million. Those figures, however, understate the real exposure. Under the federal alternative-fine statute, a fine can instead be set at twice the gain the defendants derived from the offense, or twice the loss the victims suffered — amounts that, in large cartels, can climb into the hundreds of millions of dollars. Cartel conduct also exposes companies to follow-on civil damages actions, which are trebled under the antitrust laws.

One feature shapes criminal antitrust strategy more than any other: the Antitrust Division’s leniency program. The first cartel participant to self-report the conduct and fully cooperate can, if it qualifies, avoid criminal conviction altogether — while later reporters do not receive the same protection. That structure creates a race. Once a company suspects it has exposure, the decision whether, when, and how to approach the government is urgent, consequential, and best made with counsel who understands the program in detail. Our federal sentencing practice addresses how cooperation and the Guidelines interact.

Applied insight. In a cartel investigation, the calendar can matter as much as the facts. Leniency is available to one applicant, and the value of self-reporting falls sharply with every competitor that reaches the government first. Assessing exposure quickly — and deciding early whether to compete for leniency — is often the single most important judgment in the case.

How Criminal Antitrust Sentences Are Calculated

Antitrust sentences are driven by U.S. Sentencing Guidelines § 2R1.1, and that guideline turns on a single number: the volume of commerce. The base offense level is 12. Bid-rigging adds one level, and the volume of commerce attributable to the defendant — the sales affected by the conspiracy — can add up to 16 more, with the first increase arriving once that volume passes $1 million. Because cartel allegations often sweep in years of sales across entire product lines, the volume-of-commerce figure is frequently the most consequential dispute at sentencing, and one of the most contestable.

Fines follow the same logic. For an individual, § 2R1.1 prescribes a fine of one to five percent of the volume of commerce, with a $20,000 floor; for an organization, the base fine is 20 percent of the volume of affected commerce, before the culpability adjustments of Chapter Eight. And under United States v. Booker, 543 U.S. 220 (2005), the Guidelines are advisory — the judge must make an individualized judgment under 18 U.S.C. § 3553(a). Defining the conspiracy narrowly, contesting which sales it actually touched, and litigating the defendant’s role within it can each move the sentencing range substantially.

Defending a Criminal Antitrust Case

The central criminal antitrust defense is the absence of an agreement. Because parallel conduct is lawful, a defense may show that the defendant set prices, submitted bids, or chose customers independently — responding to market conditions rather than coordinating with rivals. Where the government’s proof of agreement rests on inference and cooperator testimony, the defense presses the gap between competitors behaving similarly and competitors conspiring.

Other defenses target the rest of the case. Intent is an element, so evidence that the defendant did not knowingly join a cartel can defeat the charge. A defense may show that the conduct does not fall within a per se category at all — that it is the kind of arrangement judged by the rule of reason and not a crime — or that the parties were not actual competitors, or that a corporate family cannot conspire with itself. The statute of limitations, the scope of the conspiracy, and the reliability of the cooperating witnesses are all live issues. And in the right case, the leniency program or a negotiated resolution is itself part of the strategy. No lawyer can promise how a case will end, and we never do — what we commit to is a defense that forces the government to prove a genuine, knowing agreement beyond a reasonable doubt.

What Changed in Criminal Antitrust (2023–2026)

The most significant recent appellate decision is United States v. Brewbaker, 87 F.4th 563 (4th Cir. 2023). The Fourth Circuit reversed a Sherman Act conviction because the indictment charged a “hybrid” restraint — the parties were simultaneously competitors and manufacturer-and-distributor to one another — and held that this dual-distribution category cannot be condemned per se; it belongs to the rule of reason. Because criminal antitrust prosecution depends on the per se rule, Brewbaker hands the defense a potent threshold argument whenever the charged relationship is anything other than purely horizontal. Notably, the court left the companion mail- and wire-fraud convictions standing — a reminder that the government routinely pairs antitrust counts with federal fraud charges that must be defended on their own terms.

The Antitrust Division’s labor-market campaign has been the other defining story. Its early trials failed: in United States v. Jindal, 621 F. Supp. 3d 727 (E.D. Tex. 2022), the jury acquitted both defendants of the charged wage-fixing conspiracy itself (while convicting one of obstructing the FTC), and in United States v. Patel, No. 3:21-cr-220 (D. Conn. Apr. 28, 2023), the court entered a mid-trial judgment of acquittal because the alleged no-poach agreement had so many exceptions that it did not meaningfully allocate the labor market. The government’s fortunes turned in United States v. Lopez, No. 2:23-cr-55 (D. Nev.), where a jury in April 2025 convicted a Las Vegas home-healthcare staffing executive of fixing the wages of home-care nurses — the first criminal wage-fixing trial conviction in American history, and the end of the Division’s losing streak in labor-market antitrust trials. The court later imposed a 40-month prison sentence and more than $13 million in financial penalties, a reminder that the stakes on conviction are real. The lesson cuts both ways: these charges remain genuinely triable, and the Division remains committed to bringing them.

Enforcement structure has shifted as well. The Procurement Collusion Strike Force — a partnership among the Antitrust Division, U.S. Attorneys’ Offices, and agency inspectors general — now generates much of the bid-rigging docket, with a focus on government contracting at the federal, state, and local levels. The leniency program, meanwhile, operates under a revised policy codified in the Justice Manual, which conditions leniency on prompt self-reporting, remediation, and restitution to victims. If agents have already made contact or a grand jury subpoena has arrived, understanding where the investigation stands — the subject of our guide to the federal criminal process and investigations — should come before any irreversible decisions.

Why Work With Elizabeth Franklin-Best, P.C.

Cartel investigations land wherever the commerce flows, so antitrust defense requires counsel at home in any federal forum. Elizabeth Franklin-Best is admitted to the United States Supreme Court and to each of the twelve United States Circuit Courts of Appeals, and she appears in district courts around the country through pro hac vice admission. Chambers USA ranks the firm in its 2026 guide for Litigation: White-Collar Crime & Government Investigations — recognition rooted in precisely the kind of document-intensive, government-facing defense work a cartel case demands.

A criminal antitrust case is won in its details: who said what to whom, which sales the alleged agreement actually touched, and whether the cooperators’ account survives cross-examination. We build each defense from the documents up rather than from a template, because the line between agreement and independent action is drawn fact by fact. This guide belongs to our white-collar crime defense practice — and because every cartel charge is a conspiracy charge, our guide to federal conspiracy law is a natural companion.

Talk With an Antitrust Defense Attorney

If the Antitrust Division has issued a grand jury subpoena, executed a search, or contacted your company or its employees, the investigation is already underway — and decisions about cooperation and leniency cannot wait. In a paid, one-hour initial consultation, we will walk through what the government appears to be investigating, where you or your company stand in it, and the strategic choices — including whether leniency is realistically available — that have to be made first.

Frequently Asked Questions