Pardon Me: The “State[s]” of Criminal Antitrust Enforcement

The criminal antitrust panel at the ABA’s White Collar Crime Institute in San Diego delivered a clear message: antitrust enforcement is no longer just a Washington story.

States Stepping Up

Mary Gorman of the New York Attorney General’s Office kicked things off with a clear message: many states have criminal enforcement authority for antitrust offenses, and New York, Massachusetts, Minnesota, and Ohio have all brought cases in recent years.

Those efforts are accelerating. State attorneys general recently formed a working group focused on criminal antitrust enforcement, coordinating strategy, and sharing information. Last year, the group held a joint “boot camp” with the U.S. Department of Justice, Antitrust Division (Antitrust Division) in Chicago.

The takeaway: state-level criminal antitrust enforcement is becoming more coordinated and more active.

The Leiweke Case: A Prosecution That Never Got Its Day in Court

The panel also discussed the now-closed Leiweke case, which ended last year with a presidential pardon before the case could reach trial.

Defense counsel in that case, who sat on the panel, argued that the prosecution theory was fundamentally flawed and failed to state an antitrust crime under United States v. Brewbaker, a Fourth Circuit decision narrowing the scope of criminal liability in certain antitrust cases. The Antitrust Division, for its part, viewed Brewbaker as wrongly decided and brought the Leiweke case precisely to create a circuit split. Would have succeeded? We’ll never know.

Recent Litigation Losses — and Questions About Scope

The panel also took stock of the Antitrust Division’s recent litigation record, which has suffered some notable setbacks. Beyond the win-loss column, panelists raised a harder question: has the Antitrust Division strayed too far from its lane? Historically, criminal antitrust enforcement focused on hardcore antitrust violations — price-fixing, bid-rigging, and market allocation. Panelists argued that recent criminal enforcement efforts have strayed into conduct (such as no-poach agreements) that, not long ago, would have been treated as a civil violation.

What This Means for Companies

Given the expanding scope of conduct that could land in the crosshairs of criminal antitrust prosecution — and the growing number of enforcement authorities paying attention — companies need to keep their antitrust compliance policies and programs current. That means not just having a program on paper, but making sure it reflects the realities of today’s enforcement environment, including state-level exposure.

Keep following Enforcement Edge for more updates from the 2026 ABA White Collar Crime Institute in San Diego. 

© Arnold & Porter Kaye Scholer LLP 2026 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.