Claims Made Bites: Antitrust Exclusions Can Be Catastrophic

The Myth of “Big Tech Only” Antitrust Risk

It’s easy to think of antitrust exposures as being an international corporation problem. We aren’t surprised when Facebook is targeted for antitrust violations. They’re a large corporation that seems to wield an incredibly large, monopolistic control over their industry. Small or medium sized enterprises do not have the same sort of antitrust risks. We wouldn’t say the exposure is zero, but the idea that a small firm who has no discernable monopoly in their industry should be pretty safe from antitrust lawsuits.

That’s actually not the case at all.

The Changing Landscape of Antitrust Enforcement

The current presidential administration is targeting anti-competitive behavior in the nation’s food supply chain, among other industries. A careful review of the linked one-pager demonstrates that monopolistic behavior is merely a small part of what’s considered antitrust behavior. Anticompetitive behavior also includes:

• Price coordination with competitors
  • Even informal agreements via text, email, or phone calls to “match prices,” “not undercut each other,” or “wait and see what others charge” can constitute illegal price-fixing
• Trade association or industry group participation
  • Meetings where competitors discuss pricing strategies, customer allocation, market conditions, or future business plans can cross the line into illegal information sharing or coordination
• ESG, sustainability, and climate collaborations
  • Joint commitments on net-zero targets, supplier choices, or industry-wide standards that involve coordinating “methods” rather than just “goals” are now under antitrust scrutiny
• Distribution and supplier agreements with pricing restrictions
  • Contracts that set minimum resale prices, restrict where/how products can be sold, or allocate customers/territories among distributors may violate antitrust laws
• Exclusive contracts that foreclose market entry
  • Long-term exclusive deals for capacity, power, supplies, or services that leave little room for competitors to enter the market
• Repair and service restrictions
  • Limiting access to parts, diagnostic tools, or technical information in ways that prevent independent repair shops or customers from servicing products
• Merger/acquisition terms tied to blocking competition
  • Earnout provisions, non-compete clauses, or contingent payments that incentivize preventing new competitors from entering the market

Real Cases, Real Exposure

The Miami Seafood Wholesaler

A recent example of the type of companies that are getting hit with antitrust litigation is this regional seafood wholesaler in Miami who colluded with competitors to keep prices low for fishermen, depriving them of competitive earnings.

The coordination itself was pretty easy to prove. The firm had exchanged text messages with their competitors such as:

“[d]on’t show text to anyone[.] Confidential,”

To which the co-conspirator responded, “I give you my word. We’re working together now not against each other[.]”

Later, the same co-conspirator texted the wholesaler new stone crab claw prices. The wholesaler responded, “[l]et me know what you do. I am matching your prices. It’s the one we like the most.”

This wholesaler’s sentencing hearing is set for January 5, 2026. The maximum penalty? Ten years in prison and a $1 million fine for individuals, or $100 million for corporations. This is felony criminal exposure under the Sherman Act, not just civil litigation.

The Cannabis Industry

The cannabis industry provides another striking example.

• In Redbud Roots v. Shenzhen Smoore, a Michigan cannabis processor sued distributors for entering written agreements to fix minimum prices and not compete with each other, complete with monthly price exchanges and penalties for non-compliance.
• In MJ’s Market v. Jushi Holdings, a court allowed antitrust claims to proceed where a merger included $15 million in contingent consideration tied to blocking new competitors from entering the market.

These aren’t tech giants, they’re regional cannabis operators engaging in what seemed like standard distribution agreements and merger terms. Yet both face significant antitrust liability.

The Antitrust Net Widens

For antitrust experts, these suits are bellwethers of future antitrust trends that insurance professionals should take note of. Of particular note:

State Attorney Generals as Independent Enforcers
State AGs are no longer waiting for federal cases. They’re running their own investigations in healthcare, tech, private equity, ESG, and pricing cases. A deal or practice that passes federal review can still draw state investigation, especially where local jobs, hospitals, or energy prices are in play.

ESG and Climate Alliances Under Scrutiny
Consider ESG and climate collaborations, previously considered safe “corporate social responsibility” initiatives. State AGs, particularly in Republican-led states, are now investigating sustainability alliances and net-zero commitments as potential cartels. A mid-market manufacturer that joins an industry climate alliance to share best practices on emissions reduction could find itself facing antitrust investigation for what it thought was responsible corporate citizenship.

Right-to-Repair Enforcement
The FTC and state AGs have already brought actions around farm equipment repair restrictions, and manufacturers in other sectors such as autos, medical devices, and consumer electronics are next on the list. Manufacturers that limit access to diagnostic software or replacement parts are now facing enforcement actions framed as anticompetitive conduct.

Data Centers and Energy
AI and cloud growth are driving huge investments in data centers and dedicated energy supply. Regulators are already flagging data-center power demand as a future antitrust flashpoint, especially where a few big buyers tie up scarce grid capacity or renewable resources. Very long, highly exclusive power or capacity deals may be challenged if they leave little room for rivals to enter.

The Coverage Nightmare

Antitrust litigation is not merely a large, publicly traded company or monopolistic exposure. If a company, big or small, engages in uncompetitive behavior, they can be hit with antitrust lawsuits.

When considering Directors & Officers Liability, it’s important to take antitrust exposures more seriously. D&O policies can respond to antitrust claims, granted that these policies do not contain antitrust exclusions.

A seafood wholesaler facing ten years in prison. A cannabis distributor defending a class action seeking treble damages. A manufacturer targeted by state AGs for participating in a climate alliance. All could find themselves completely uninsured if their D&O policy contains an antitrust exclusion.

What Insurance Professionals Must Do

For Agents/Brokers:

• Do NOT accept antitrust exclusions when presenting D&O quotes.
• If your client is not interested in covering this exposure, then be sure to document your presenting them an option that DID include coverage for antitrust claims.
• Educate your clients that antitrust is no longer a “big tech only” exposure. It affects regional businesses across all industries.

For Underwriters:

• Learn and appreciate this heightened antitrust exposure when considering quotes for D&O Liability.
• If you’re not excluding, point this out to your agents/brokers. Toot your horn! Demonstrate the superiority of your terms in accepting this exposure.
• Price the risk appropriately, but don’t exclude coverage your insureds desperately need.

Conclusion

Antitrust exposure is no longer a Facebook problem. It’s a seafood wholesaler problem. A cannabis distributor problem. A regional manufacturer problem. When a text message saying “I am matching your prices” can lead to prison time and million-dollar fines, antitrust exclusions in D&O policies are not acceptable.

For brokers, these exclusions must be rejected. For underwriters, this exposure must be priced, not excluded. The stakes are too high to leave your clients uninsured for conduct that is increasingly common and increasingly prosecuted.

Meet the Author

Lucas Roberts

Wholesale Broker, Anzen

Lucas Roberts is a professional lines specialist with experience in both underwriting and wholesale brokerage. He maintains an active LinkedIn presence, regularly sharing insights on professional liability developments. This blog takes a deeper dive into developments that have far-reaching consequences for the professional liability market.

You can see more of Lucas’s Claims Made Bites on his LinkedIn.