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Antitrust Violations

NCJ Number
American Criminal Law Review Volume: 45 Issue: 2 Dated: Spring 2008 Pages: 195-232
Kathryn K. Dyer; Garrett M. Liskey
Date Published
38 pages
This article explains the criminal aspects of antitrust law enforcement under Section 1 of the Federal Sherman Act ("Act"), with attention to elements of the offense, defenses, enforcement, and penalties.
Section 1 of the Act aims to promote and protect free-market competition by declaring "every contract, combination . . . or conspiracy" in restraint of interstate or foreign commerce to be illegal. A civil plaintiff must establish three elements to prove a violation of Section 1: an agreement to concerted 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 of commerce is interstate or international in nature. In a criminal antitrust prosecution, the government must also prove that the defendant intended to restrain commerce. In addition to discussing the elements for an antitrust criminal violation, this article explains 10 defenses that may be used to counter charges of a criminal antitrust violation. These are withdrawal from the alleged conspiracy; the statute of limitations; double jeopardy; single entity; respondeat superior (common law doctrine that an employer is only generally liable for the actions of an employee acting within the scope of his/her employment or acting with apparent authority); meeting competition; state action immunity; petitioning the government; regulated industry; and foreign commerce (effects, comity, and foreign sovereign compulsion). The article's discussion of the enforcement of the Act analyzes Federal prosecution of antitrust violations, outlining important initiatives; reviews aspects of State enforcement of antitrust violations; and addresses recent trends in international antitrust enforcement by the U.S. Department of Justice. The article concludes with a discussion of the factors considered by courts in setting penalties for corporations and individual defendants convicted of criminal antitrust violations, including the trend of increasing fines for antitrust violations. 243 notes