Director Emma Burnham of the Antitrust Division's Criminal Enforcement Section Delivers Remarks to the New York State Bar Association

When I first learned about this event, a retrospective of a nearly 20-year-old cartel investigation seemed like a slightly odd subject. But then it occurred to me that this event offers an opportunity — not just to look back, but to think about how much enforcement has evolved and what’s on the horizon. Of course, over the decades we’ve kept the same core principles at the heart of our work: individual accountability, encouraging self-reporting and good corporate citizenship and, fundamentally, promoting competition and open markets. But while those principles have stayed the same, it’s not an exaggeration — though maybe it’s a cliché — to say almost everything else has changed.

Technology has revolutionized the way markets operate, the way antitrust crime is committed and the way criminals try to hide it. Meanwhile, decades of consolidation have left key sectors of our economy vulnerable to rampant collusion. Immense wealth and power are in the hands of the few. Inflation has skyrocketed, and the American people continue to feel the effects of supply chain disruptions that began during the pandemic.

That all sounds pretty dire. But hope is not lost. The technological advances that facilitate crime also give us a wider array of tools to detect misconduct. And around the world, the number of enforcers that prosecute antitrust violations has risen dramatically — consider that over 20 countries criminalized cartels between 2000 and 2015. That broader landscape enhances our ability to detect cross-border collusion — but of course it also increases the complexity of the web of legal, regulatory, compliance and self-reporting regimes that companies operate in.

So it’s incumbent on us, as enforcers, to constantly evaluate our practices, priorities and policies to make sure they address ever-changing modern realities. That’s why we are skating to where the puck is going, not where it is today — or where it was 20 years ago. I’d like to take the next few minutes to talk about areas where the general principles have remained the same, but our work has expanded, modernized and become more forward-leaning.

New York

I’ll start right here in New York, the home of the oldest of our field offices. The office was opened in 1933, prompted by a flood of complaints alleging antitrust violations in the city. Most of those involved commercial price fixing, monopolization and racketeering. As an Antitrust Division employee wrote at the time, “the local character of the cases indicated the advisability of establishing a branch office in New York City.”

That was an accurate assessment. The New York Office went on to do critically important work for key sectors of the American and regional economy. In the 1930s that meant things like, for instance, artichokes, fruit and fur. In the first three years the office was open, it obtained more than 100 convictions.

More recently, the office has continued to focus on key sectors and obtain important convictions. But today those investigations and cases look a little different — from procurement, to entertainment, to — of course — financial markets. Its investigations into municipal bonds, LIBOR and foreign exchange markets have had resonant effects on competition in those markets.

But while New York remains the country’s financial capital, it no longer has a monopoly on financial markets. Other regulators have offices and work spanning the country. And our international counterparts are engaged in this work too. It’s increasingly a misconception that New York is the only place where financial markets investigations and litigation happen. Across the division, we are digging in, coordinating with regulators and identifying misconduct in new types of financial markets and affecting victims throughout the country.

To further this work, the New York Office is heading a coordinated response, bringing together the diverse skills of prosecutors, agents and other professionals across and beyond the division. The office is leveraging relationships we are building and strengthening with agencies like the SEC and CFTC, where we are sharing market intelligence, leads, and expertise.

This initiative is possible because of an experienced management team who have joined us recently. They bring a broad range of federal prosecution experience, judgment, and vision, ushering in a new era of enforcement. Chief Sean Farrell rejoined our office, where he was previously an assistant chief, after serving as the cybercrime unit chief at the District of New Jersey U.S. Attorney’s Office; our new assistant chiefs Matt Nikic and Dave Chu are both former AUSAs with a slew of trials under their belts and expertise in complex prosecutions and financial markets, including Dave’s former work at the CFTC. Their team is filled out by an outstanding bench of attorneys, paralegals, and support staff whom I’m honored to call my colleagues. They’re handling a wide array of matters, not just financial markets cases but also including, for example, an international antitrust case awaiting trial.

International Cooperation

That brings me to international cooperation, which the division’s criminal program has long focused on, especially where it comes to leniency, both policy issues and in the context of investigations with applicants in multiple jurisdictions.

While that work continues, today our international cooperation is both broader and deeper. We now engage with more international partners than ever before, and on a wider range of topics, including sharing market intelligence, collaborating on technological developments like algorithmic collusion and data analytics, coordinating approaches to cross-border proactive investigations and outreach to potential whistleblowers and victims.

Working together with our counterparts is one of the most important force multipliers we have, which is why our leadership team is deeply committed to sustaining these relationships and leading in this space. For example, right now our criminal Deputy Assistant Attorney General is leading a division delegation to the International Competition Network’s Annual Conference in Spain. Multilateral engagement is critical to fighting cartels, and the ICN has been an important forum for that work. Over 20 years ago, the division was one of 15 founding members of the ICN. Today its membership has blossomed into a diverse group of agencies from over 140 jurisdictions.

The division is currently co-chairing the ICN Cartel Working Group, where I think it’s worth noting that our work extends far beyond leniency. For example, we recently launched a multi-year project to provide practical programming to help our sister agencies develop and refine proactive enforcement techniques. That initiative recently included an agency-only training series on practical aspects of executing search warrants. Encouraging self-reporting remains a priority too — we recently held the first-ever interactive training on implementing leniency programs for new competition agencies, which involved over 160 participants from 36 jurisdictions.

We have also enjoyed regular engagement with the European Commission and our Five Eyes partners on topics ranging from cross-border investigations to sharing lessons on investigative techniques. And we also look forward to continued engagement with our counterparts in other parts of the world, like Korea — where we continue to investigate and prosecute misconduct affecting U.S. military spending overseas. For example, just last month a subcontractor was sentenced to nearly $9 million in fines and restitution for bid rigging and fraud targeting U.S. military installations in South Korea.

Our commitment to international cooperation is paying dividends. Within the past year alone, we have cooperated on 13 cross-border criminal matters with 10 jurisdictions, and engaged in consultations covering a wide range of criminal enforcement topics with over 15 jurisdictions.

Most of our international cooperation happens outside of public view, but I can share with you one specific example. We recently announced a joint initiative with our counterparts in Canada and Mexico to deter and detect antitrust crime targeting the upcoming World Cup in 2026, which our three countries will co-host. As history teaches, when governments pour money into high-profile projects, bid rigging is bound to happen. That’s why we’re conducting outreach to raise awareness and coordinating to share tips and intelligence.

These are just a few of the areas where we’re proactively working together with international partners. We will continue to prioritize this work, particularly in response to major government spending or major events that are likely to draw the attention of bad actors, like inflation and supply chain pressures.

Corporate Enforcement

Turning now to our domestic corporate enforcement, if you’re following antitrust enforcement at all, you know we have become increasingly concerned about concentrated markets. Consolidation creates conditions that can facilitate collusion. As reflected in the updated draft Merger Guidelines, a history of collusion is something our civil colleagues consider carefully when assessing a proposed transaction.[1] On the criminal side, we are scrutinizing concentrated markets, especially ones where we’ve seen violations before. And to restore competition, we’re continuing to investigate and prosecute criminal monopolization cases.

We’re also thinking more creatively about restoring competition in the context of corporate resolutions — which can require more than just a one-time fine, especially for industries plagued by consolidation and recurring misconduct. The recent resolutions with generic drugmakers Teva and Glenmark are a good example. In August, the companies — some of the nation’s largest suppliers of vital medicines — admitted to perpetrating long-running antitrust conspiracies.

The terms of these resolutions were extraordinary. In addition to financial penalties, including a $225 million penalty for Teva — the largest criminal penalty ever imposed for a domestic antitrust crime, which was on top of a $50 million drug donation for remedial purposes — the division required a novel term for a criminal case: Teva and Glenmark agreed to divest a key product line involved in their scheme.

There are a few lessons here. First, we recognize financial penalties alone will not always suffice to restore competition, depending on the industry and the nature of the misconduct. That’s why we take remediation so seriously. Breaking up a company’s business stops it from reaping the rewards of its prior illegal conduct. And it hurts its bottom line in a way that a one-time fine can’t — which should serve as a real wake-up call that compliance matters.

The next lesson is that corporate wrongdoers in heavily regulated industries like health care cannot hide behind the specter of debarment to avoid taking responsibility for their crimes. For health care companies, a criminal conviction can carry the devastating consequence of mandatory exclusion from participating in federal health care programs — which can be a corporate death sentence. While that may be a proportionate outcome for individuals and smaller providers, for nationwide drug companies, exclusion may have ripple effects that could paradoxically decrease competition and hurt consumers.

We carefully weighed these collateral consequences in fashioning an appropriate resolution. The divestitures here function as a targeted exclusion—ensuring the company cannot continue to operate in the space, and continue to risk harm to consumers, in the market where the crime occurred. Our recent Memorandum of Understanding with HHS-OIG and cooperation with that agency were instrumental in ensuring we got this exactly right. As a result, we are confident that these resolutions will have a significant and lasting effect — and that the companies will not escape just punishment simply because of their critical role in a heavily regulated industry.

Third, and last, lesson: recidivist companies should understand that debarment is not a get out of jail free card. Teva’s parent had previously resolved unrelated liability through a DPA with the Criminal Division. It’s unfortunately not uncommon for us to see a company with weak compliance committing various types of crimes in various lines of business. That’s why the department disfavors successive DPAs — we want to encourage companies to reform their compliance culture after they detect misconduct the first time.

In determining a DPA was nonetheless appropriate here, we undertook an intensive, fact-specific inquiry and carefully examined the company’s compliance improvements. Ultimately, we concluded that a DPA was warranted given the different sets of conduct, lines of business and personnel, and in light of the company’s substantial compliance improvements, both structural and cultural, and last but not least the remedial measures I just mentioned.

But while that was the appropriate outcome here, companies should understand that successive DPAs are the exception, not the rule. Companies should be on notice that a criminal conviction may be the appropriate result for repeat offenders — regardless of debarment consequences.

Proactive Detection

As those recent resolutions show, the division’s enforcement isn’t slowing. Both internationally and domestically, public discourse tends to focuses on leniency, but it’s important to recognize that the backdrop for a robust leniency program is the threat of detection outside of leniency. Self-disclosures are one of many tools we use to detect crime. Our leniency program provides extraordinary benefits that we need not give away if we can build a case without an applicant.

So we are using all tools at our disposal—not just grand jury process and premises warrants, but methods to conduct longer-running covert investigations. That includes search warrants for electronic evidence, but it also includes things like consensually recorded communications (including those being captured by a non-leniency cooperator), undercover agents, and Title III wiretaps. We are also thinking broadly about the types of confidential sources and cooperators best positioned to notice potential crime — not just coconspirators but also whistleblowers not directly involved in the conduct, as well as victims.

And we are thinking proactively and creatively about using market intelligence tools, taking inspiration from other regulators and enforcers, to better focus our work on key sectors where collusion is most likely to occur and where consumers, taxpayers and workers are most likely to be victimized.

Leniency

To find our policies, the place to look is not speeches — it’s the Justice Manual — which is why last year we revised our chapter of the manual and included the leniency policy in it. We also updated that policy for the first time in nearly three decades and issued a substantially revised set of frequently asked questions.

Last year’s updates reflected the Antitrust Division’s ongoing commitment to encouraging good corporate citizenship and holding individuals accountable. Those are goals echoed across the department, all enforcement components of which now have voluntary self-disclosure programs. These programs are all tailored to the specific enforcement needs of the component but share key characteristics. For example, the requirement that an applicant self-report its misconduct promptly mirrors the requirements in the Criminal Division and USAO policies.

But ours has one notable distinction: coverage for cooperating culpable executives. That is why, when a company detects potential antitrust crime, choosing to sit on its hands rather than report it not only disqualifies the company from later receiving leniency — it also exposes their culpable personnel to jail time instead of the certainty of nonprosecution. Companies that choose gamesmanship over good corporate citizenship do so at risk not only of corporate criminal exposure, but also their executives’ liberty. Keep in mind that within the past year, defendants in our cases have received significant prison sentences, including 78- and 49-month terms.

That risk is worth careful consideration in light of the updates to our Leniency Policy last year. That includes the change from requiring a company to promptly terminate its participation to, instead, promptly self-reporting it. That change encourages disclosures while the conspiracy is ongoing, allowing us to take covert steps. Juries can be skeptical of immunized cooperator testimony or stale evidence. Conspirators might seek to destroy evidence once they become aware of our investigation. But using covert techniques, we can obtain the type of irrefutable evidence juries can’t ignore: wiretaps, video recordings and more recently things like capturing ephemeral messaging. While the tools have evolved, the importance of this evidence is one valuable lesson we’ve learned from the Marine Hose investigation.

Conclusion

This spirit of thoughtful, deliberate evolution is also reflected at the heart of our enforcement: the Sherman Act. As former Attorney General Howard McGrath said in remarks to the NYSBA Antitrust Section in 1950, though it could equally (if less eloquently) have been said in 2023: “One hears considerable comment concerning the uncertainty of the Sherman Act. But this comment must be viewed in the light of the fact that the Sherman Act is a broad economic charter which must be adapted to ever-changing economic conditions. Within this limitation, I think the Sherman Act has achieved as great a certainty as a democratic capitalistic society can afford. A static certainty in our basic antitrust law can only be achieved at the expense of progress.” And that is why, nearly three quarters of a century later, I can assure you that our work will continue to evolve—to stay one step ahead of emerging threats to our markets and ensure we are fulfilling our law enforcement mission.