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Antitrust Violations

NCJ Number
American Criminal Law Review Volume: 48 Issue: 2 Dated: Spring 2011 Pages: 335-373
Bob Nichols; Eric Schmitt
Date Published
39 pages
In addressing criminal antitrust law, this article outlines the four elements of a criminal antitrust violation under section 1 of the Sherman Act (the "Act"); discusses the defenses to an antitrust claim; distinguishes between Federal, State, and international enforcement; and explains the penalties for criminal violations of antitrust law.
The Act is intended to protect free-market competition by proscribing "every contract, combination...or conspiracy" in restraint of interstate or foreign commerce. A civil plaintiff must establish three elements to prove a violation of section 1 of the Act: an agreement to concerted action, such as a combination or conspiracy formed by two or more entities; the agreement unreasonably restrained trade or commerce; and the restrained trade or commerce is interstate or international in nature. In a criminal antitrust prosecution, the prosecution must also prove the additional element that the defendant intended to restrain commerce. The first group of defenses reviewed in this article was withdrawal from the conspiracy, the statute of limitations, and double jeopardy, which relate to the length and scope of a charged conspiracy. Three other defenses discussed focus on the importance of the identities of the concerned actors and relevant markets. These defenses are called the single entity, respondent superior, and meeting competition. The remaining defenses discussed examine state action immunity, petitioning government, regulated industry, and foreign commerce defenses. The article's next section focuses on the enforcement of antitrust law at the Federal, State, and international levels. The concluding section briefly reviews factors considered by courts in setting penalties for corporations and individual defendants, and discusses the growing trend of increasing fines for antitrust violations. 248 notes


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