Three state-level developments could change the US criminal antitrust enforcement landscape

State attorneys general (AGs) have recently signaled a more aggressive stance toward their own criminal antitrust enforcement. If they realize their ambitions, this could presage a notable shift in the US enforcement environment for price fixing, bid rigging, and market allocation cartels, traditionally the near-exclusive province of federal enforcers at the US Department of Justice (DOJ).

Through a combination of new laws, added resources, and updated priorities – and with uncertainty surrounding DOJ’s available enforcement resources – state AGs could assert themselves as independent – and perhaps even leading – cartel enforcers.

Updated laws: Modernizing the legal framework

Several states have passed or proposed major updates to their antitrust laws, aiming to strengthen and localize criminal antitrust enforcement.

California’s Senate Bill 763 (SB 763) would increase criminal penalties and introduce civil penalties for violations of the Cartwright Act, the state’s antitrust statute. The legislation, which has the support of the state’s attorney general, would increase potential corporate criminal fines a hundredfold – up to $100 million per violation, which is identical to the statutory maximum penalty under the federal Sherman Act. SB 763 also would raise the most severe prison sentences for individuals found guilty of antitrust violations to five years, and increase the maximum individual fines to $1 million. In addition to these enhanced criminal penalties, the legislation also would introduce civil penalties of up to $1 million per violation.

Similarly, pending legislation in New York would enhance the Donnelly Act’s penalty for criminal antitrust violations: corporate fines would increase to a maximum of $100 million and individual fines to $1 million (in addition to possible four-year prison terms). The legislation would also extend the applicable statute of limitations for antitrust violations to five years from its current three.

Both California and New York may be looking to Colorado, where the Antitrust Act of 2023 increased the penalty for criminal antitrust violations to $5 million per violation, and enhanced the Colorado AG’s investigative authority by allowing the office to request information from any person – including witnesses and third parties to unlawful agreements – who potentially has information in relation to an antitrust violation. The statute also clarified that the applicable statute of limitations would run from the last act in a series of events that constitute the offense.

Added resources: Building capacity for enforcement

As states push for stronger antitrust enforcement, they are growing their institutional capacity to support stronger criminal antitrust enforcement, including seeking to increase funding and staffing levels.

First, state AG offices are reorganizing themselves in ways that allow them to dedicate additional resources to antitrust enforcement and approach in a more systematic and specialized way. Two states that previously had no antitrust-specific unit – Minnesota and New Jersey – have created dedicated antitrust divisions.

States also are adding personnel. New York recently opened four new positions for antitrust enforcement, and several states have hired experienced prosecutors in ways that may bolster their criminal enforcement capacity, such as Massachusetts, which recently hired a cartel prosecutor from DOJ’s Antitrust Division.

At the same time, state legislatures across the country are appropriating more funds to their AG offices, recognizing that antitrust enforcement often requires deep technical expertise.

California’s SB 763, for instance, would direct the money received from any fine or civil penalty arising from an action initiated and prosecuted by the state attorney general to be deposited into an “Attorney General antitrust account within the General Fund of the State Treasury,” in a provision designed to help the AG’s office increase its funding for continued antitrust enforcement.

Finally, in addition to unilateral efforts to grow their enforcement capacity, states are collaborating through a recently created working group of state AGs that focuses on sharing best practices as they explore their criminal enforcement authority. One topic of shared concern is the development of detection tools that states can use in lieu of the leniency programs that are favored at the federal level and by international enforcers, which few states have.

Renewed commitment: Reimagining the role of states in criminal antitrust enforcement

Finally, state AGs are adjusting their enforcement priorities, with some expressly pledging stepped-up criminal antitrust enforcement.

California – which has both the largest economy, and one of the largest attorney general offices, of any state in the country – leads the way in this regard.

Despite the Cartwright Act’s express authorization of authority to criminally prosecute both companies and individuals found guilty of their roles in anticompetitive cartels, it has been more than a quarter of a century since California’s AG pursued an antitrust matter criminally. The state’s most senior antitrust enforcer, however, recently repeated her pledge – first made over a year ago – that her office would reinvigorate criminal prosecutions under the Cartwright Act. She stressed the belief that increased criminal prosecution would deter anticompetitive conduct and previously outlined an all-hands-on-deck approach to policing antitrust offenses in the state.

If California follows through on this promise, it would not only be the first criminal prosecution under the state's antitrust laws in a generation, but also one of few criminal prosecutions under any state's antitrust laws in recent memory. 48 states and the District of Columbia have laws that allow them to investigate and prosecute antitrust offenses as criminal matters, but enforcement by any state has been limited and inconsistent.

California’s success (or lack thereof) could be a bellwether for other states with similar ambitions, particularly if federal enforcement flags. With regard to another enforcement area characterized by federal dominance, California’s AG recently reminded the business community that state laws prohibited bribing foreign officials, and pledged that his office stood ready to enforce those laws; New York’s AG has made similar commitments.

What types of cases could be expected?

While all forms of collusive anticompetitive conduct might be targeted, two in particular stand out for potential enforcement: state procurements and local labor market collusion.

• State procurements: In California, the state’s head antitrust enforcer has identified state contracts as an area of likely scrutiny for her office due to the size of California's government and the tremendous amounts of money flowing through state government agencies. This focus could mirror the overall mission of the DOJ's Procurement Collusion Strike Force (PCSF) – a federal interagency initiative to detect and deter bid-rigging and related conduct in public procurements – albeit confined to purely intrastate contracting. If this materializes, DOJ could utilize an infrequently used protocol that allows states to lead the criminal investigation and prosecution of “bid rigging and/or price fixing in localized markets” for state prosecution of criminal antitrust offenses, itself standing down from enforcement.
  
  
• Workforce cases: Another possible enforcement focus for states involves labor markets, which have been and remain a federal priority. In April 2025, DOJ secured its first-ever criminal conviction for wage-fixing, vowing to continue to “zealously prosecute those who seek to unjustly profit off their employees.” Federal enforcers in the current administration have already targeted anticompetitive practices that impact workers. To date, many of the cases that DOJ has pursued have been in local labor markets, which would be geographically well-situated for state-level enforcement and could avail themselves of state laws that specifically address things like no-poach and noncompete agreements.

Conclusion

US criminal antitrust enforcement may be entering a new era that moves away from the historical federal near-exclusivity, and places state enforcers on a potentially more equal footing with their federal counterparts. Through legislative reform, increased and better-organized resources, and bolder enforcement strategies, states could build a criminal antitrust enforcement framework that is more localized, but still leverages many of the same incentives that DOJ’s federal enforcers use. If so, this could lead to more resilient enforcement in the face of potentially shifting federal priorities.

These potential changes to the enforcement landscape come with important considerations for corporate assessments of antitrust risks. Businesses may consider revisiting the adequacy of their criminal antitrust compliance efforts now, particularly if they have commercial operations concentrated in one or more of the states that have indicated an intent to bolster their enforcement. Criminal enforcement efforts will not be previewed to the business community: if a state steps up its efforts, the targets of its investigation could be the first to learn of the development in the form of a subpoena or search warrant.

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