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Antitrust Violations

NCJ Number
American Criminal Law Review Volume: 49 Issue: 2 Dated: Spring 2012 Pages: 403-442
Reid Allison; Adam Duhlberg
Date Published
40 pages
This article reviews the four elements of a criminal antitrust violation under section 1 of the Federal Sherman Act; defenses to an antitrust claim; differences among Federal, State, and international enforcement; and the penalties for criminal violations.
A civil plaintiff must establish three elements to prove a violation of section 1: an agreement to concerted action; the agreement unreasonably restrained trade or commerce; and the restrained trade or commerce was interstate or international in nature. In addition, in a criminal antitrust prosecution, the government must also provide that the defendant intended to restrain commerce. Defenses against section 1 charges include withdrawal from the conspiracy, the statute of limitations, double jeopardy, single entity, respondeat superior, meeting competition, state action immunity, petitioning the government, a regulated industry, and foreign commerce. The article's section on enforcement of section 1 analyzes Federal prosecution of antitrust violations, as well as important government initiatives; discusses aspects of State enforcement of antitrust violations, and considers recent trends in international antitrust enforcement, including the trend toward enhanced criminal penalties. The article's concluding section outlines factors considered by courts in setting penalties for corporations and individual defendants, and it discusses the growing trend of increasing fines for antitrust violations. In 2004, the U.S. Congress amended section 1 to increase the maximum fine payable by a corporation for a violation from $10 million to $100 million, by an individual from $350,000 to $1 million, and the maximum jail term from 3 years to 10 years. The U.S. Sentencing Guidelines provide a base offense level of 12 for bid-rigging, price fixing, or horizontal market allocation agreements, and a one-level enhancement for conspiracies that involve "participation in an agreement to submit non-competitive bids." 248 notes


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