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Antitrust Violations

NCJ Number
American Criminal Law Review Volume: 47 Issue: 2 Dated: Spring 2010 Pages: 245-285
Travis J. Hill; Stephanie B. Lezell
Date Published
41 pages
In focusing on the criminal aspects of antitrust enforcement under the Sherman Act ("Act"), this article outlines the four elements of a criminal antitrust violation under Section I of the Act; presents the defenses to an allegation of an antitrust violation; distinguishes between Federal, State and international enforcement; and explains the penalties for criminal violations.
A civil plaintiff must establish three elements to prove a violation of Section I: 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 or commerce is interstate or international in nature. In a criminal antitrust prosecution, it must also be proved that the defendant intended to restrain commerce. A number of defenses may be raised after the prosecution establishes an illegal conspiracy. One category of defenses pertains to the length and scope of a charged conspiracy. These defenses focus on the withdrawal from a conspiracy, the statute of limitations and double jeopardy. The second category of defenses addresses the importance of the identities of the concerned actors and relevant markets. They pertain to the single-entity, respondeat-superior, and meeting-competition defenses. The third category of defenses focus on a circumstance in which "a conflict between different bodies of law will require that the antitrust laws . . . be displaced." Traditionally, criminal prosecution of antitrust violations has been primarily the subject of Federal and State enforcement. The U.S. Justice Department's Antitrust Division has extended its enforcement authority by pursuing prosecution of international antitrust violations. The article's concluding section identifies factors considered by courts in setting penalties for corporations and individual defendants, with attention to the increasing trend of increasing fines for antitrust violations. 256 notes