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Antitrust Violations

NCJ Number
American Criminal Law Review Volume: 43 Issue: 2 Dated: Spring 2006 Pages: 217-258
Sheryl A. Brown; Christopher Kim
Date Published
52 pages
This article addresses the criminal aspects of antitrust law, its enforcement, penalties, possible defenses under antitrust charges, and recent developments in international cooperation.
The Sherman Act, which is the primary Federal antitrust law, applies to both civil and criminal offenses without distinguishing between the two. Congress intentionally left that task to the judiciary. Section 1 of the act aims to promote and protect free-market competition by declaring illegal restraint of interstate or foreign commerce. Courts have consistently held that Congress intended to prohibit only unreasonable restraints of trade. Elements in proving a violation of Section 1 are an agreement to action, such as a combination or conspiracy formed by two or more entities; that the agreement unreasonably restrained trade or commerce; and that the restrained trade or commerce is interstate or international. In a criminal antitrust prosecution, the government has the additional responsibility of proving that the defendant intended to restrain commerce. This article also presents the defenses to an allegation of an antitrust violation. The 10 defenses described have the following claims: withdrawal from the alleged conspiracy; statute of limitations; double jeopardy; being a single entity rather than two or more entities; respondeat superior (employee committed the alleged violation without the authority of the corporation); actions were intended to make the corporation competitive; immunity of the alleged violation due to approval under State law; the alleged violation involved petitioning the government; the defendant is a regulated industry; and involved legitimate foreign commerce. The article's section on enforcement focuses on enforcement policies of the State and Federal governments as well as international enforcement. The article concludes with sections on antitrust penalties and recent developments in international cooperation in relation to antitrust issues. 268 footnotes


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