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LEXSTAT 5-19 BUSINESS CRIME P 19.02 Business Crime Copyright 2010, Matthew Bender & Company, Inc., a member of the LexisNexis Group. CHAPTER 19 Criminal Antitrust 5-19 Business Crime P 19.02 AUTHOR: Stanley S. Arkin Lead Author, Business Crime; member Arkin, Schaffer & Supino, New York, New York; Adjunct Associate Professor of Law, New York University School of Law; fellow, American College of Trial Lawyers. Gandolfo V. DiBlasi Mr. DiBlasi is a partner of the firm Sullivan & Cromwell. P 19.02 The Sherman Act.

[1] In General. Framed in sweeping language, section one of the Sherman Act declares the following: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal.n1 In addition to provisions for civil enforcement actions,n2 the Sherman Act relies heavily on criminal penalties as a means of enforcement. Immediately following the proscription quoted above, section one proclaims that "[e]very person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony."n3 Section 2 of the Act makes it a felonyto "monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations."n4 For a discussion of the criminal penalties for Sherman Act violations, see P 19.02[6]. From the very beginning, it was recognized that the criminal offenses created by the Sherman Act lacked precise definition. Senator Sherman himself acknowledged this vagueness during the floor debates that preceded adoption of his proposed antitrust legislation: It is the unlawful combination, tested by the rules of common law and human experience, that is aimed at by the bill, and not the lawful and useful combination. *** I admit that it is difficult to define in legal language the precise line between lawful and unlawful combinations. This must be left for the courts to determine in each particular case. All that we, as lawmakers, can do is declare general principles, and we can be assured that the courts will apply them so as to carry out the meaning of the law.n5

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The case-by-case judicial determinations foreseen by Senator Sherman have never completely succeeded in defining a "precise line between lawful and unlawful combinations." Instead, the federal courts have forged a working body of case law built upon the basic principle -- first enunciated in 1911 by Chief Justice White in Standard Oil Co. v. United States;n6-- that only those contracts, combinations, or conspiracies that restrain trade "unreasonably" are prohibited by the Sherman Act.n7 Despite the fact that the Sherman Act broadly designates every violation of its proscriptions a criminal offense, actual experience has shown that only "hard-core" violations -- price-fixing, market allocation, and similar conduct -- are properly treated as criminal offenses.n8 Nonetheless, by reason of the vagueness that continues to linger under the "rule of reason," the Attorney General has not only the ordinary prosecutorial discretion to determine which violations and which violators should be charged, but also, to a considerable degree, has the power to define the nature of a violation and the point at which criminal liability attaches.n9 [2] Reasonableness of the Restraint. In Standard Oil Co. v. United States,n10 a 1911 Sherman Act civil case in which a lower court had ordered dissolution of a holding company which the defendants had used to effect their control over the petroleum industry, the Supreme Court, after reviewing both the common law background and the specific abuses which led to adoption of federal antitrust legislation,n11 concluded that the broadly drafted proscriptions of the Sherman Act were meant only to reach conduct which "unreasonably" restrained trade.n12 In United States v. American Tobacco Co.,n13 another landmark Sherman Act case decided by the Supreme Court in the same term, the Court reiterated that the phrase "restraint of trade" should be construed by "a resort to reason," pointing out that this approach was necessary to prevent the Act "from destroying all liberty of contract and all substantial right to trade, and thus causing the act to be at war with itself by annihilating the fundamental right of freedom to trade which, on the very face of the act, it was enacted to preserve."n14 Under "rule of reason" analysis, courts must make extensive factual inquiry to determine whether a particular restraint suppresses or destroys competition.n15 Almost 70 years after Standard Oil first articulated the "rule of reason," the Supreme Court characterized the rule as an "open-ended and fact-specific" standard.n16 [3] "Per se" Violations. As noted in P 19.02[1], above , the federal courts have construed the expansive language of the Sherman Act to prohibit only those combinations and contracts which unreasonably restrain trade.n17 In defining what actions are "unreasonable" restraints of trade, federal courts have classified certain business practices as inherentlyunreasonable, and thus "per se" violations.n18 Note that since the per se rules define types of restraints that are illegal without further inquiry into their competitive reasonableness, they are substantive rules of law, not evidentiary presumptions.n19 First articulated by the Supreme Court in United States v. Trenton Potteries Co.n20(a criminal price-fixing prosecution), the per se rule rests upon the principle that the natural effect of certain agreements is anticompetitive.n21 Thus, for example, in a price-fixing prosecution, the government need not prove that the particular prices fixed by the defendants were unreasonable.n22 In addition to price-fixing,n23 business practices deemed unlawful in and of themselves include dividing markets or allocating consumers,n24 bid-rigging,n25 group boycotts,n26 and tying arrangements.n27 The per se doctrine is of special importance in assessing whether a particular type of business conduct will be singled out for criminal antitrust prosecution. The Antitrust Division of the Department of Justice, well aware that broad resort to criminal prosecution not only could run afoul of due process requirements of fair notice but might raise issues of abuse of prosecutorial discretion, has narrowed the use of criminal sanctions to "willful" violations of the law.n28 Although neither the Antitrust Division nor the courts have ever explained what is meant by the term "willful," proof of an intentional violation of the law or an allegation of a per se offense will raise a presumption of willfulness.n29

it is sufficient that a concert of action be contemplated and that the defendants conform to the arrangement. a common purpose and plan may be inferred from a development and a collocation of circumstances.n37 However. combination . In practice.n35 the government frequently must rely on a theory of continuing conspiracy. the conclusion that a conspiracy is established is justified. with cases alleging these types of anticompetitive acts.n33 "Where the circumstancesare such as to warrant a jury in finding that the conspirators had a unity of purpose or a common design and understanding. no formal agreement is necessary to constitute an unlawful conspiracy. or to create artificial conditions which necessarily impede or burden the due course of such trade or commerce. either at its inception or during a later phase of its operation.n38 [b] In Restraint of Trade. the government need not prove a new agreement within the statutory period. the government need not prove anything more than the intent to commit the act itself."n42 In conspiracy cases. The courts have repeatedly recognized that in enacting the Sherman Act."n34 Because patterns of anti-competitive business practice typically extend back in time beyond the five year statute of limitations period. but includes as well involuntary restraints "where persons not so engaged conspire to compel action by others.n32 A conviction against any defendant is warranted if the jury finds beyond a reasonable doubt that the conspiracy alleged in the indictment existed and that the defendant knowingly became a member of the conspiracy. a continuous conspiracy is one that "contemplates bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators to keep it up.n40 [c] Among the Several States. most section 1 prosecutions focus on several crucial elements of the statutory formulation. or conspiracy' nonetheless may constitute a restraint within the meaning of § 1 if it substantially and adversely affects interstate commerce.Page 3 5-19 Business Crime P 19. or a meeting of the minds in an unlawful arrangement."n39 It is axiomatic that defendants who intend to fix prices or to engage in bid rigging necessarily intend to restrain trade. is disjunctively phrased in some of the most sweeping of legal language. The Sherman Act makes the act of conspiring itself illegal. or restrict the common liberty to engage therein. The Act contains no requirement of a subsequent overt act and the Supreme Court has refused to read such a requirement into the Act. even wholly intrastate or foreign activities can fall within the . The Supreme Court at an early point in the development of antitrust law held that the proscription of section 1 of the Sherman Act is not confined to voluntary restraints. "however local its immediate objects.. Moreover. the requisite interstate nexus can be established by proceeding along either or both of two lines of inquiry. it must be shown that the conspiracy had a sufficient nexus with interstate commerce. Essentially. Congress intended to exercise the full sweep of its power under the interstate commerce clause of the Constitution. Thus. the government must present evidence justifying a jury finding beyond a reasonable doubt that the particular agreement into which a defendant entered continued into the period not barred by the statute of limitations.n41 Accordingly. Section 1 of the Sherman Act. however. a 'contract."n45 Under the "affecting commerce" test."n36 When proceeding under such a theory.n30 the section under which most criminal prosecutions are brought.n31 A defendant's participation in a criminal conspiracy need not be proved by direct evidence. Under the first test.n43 The existence of sufficient interstate nexus is to be determined as a practical matter rather than on any theoretical basis.n44 Under traditional modes of analysis.02 [4] Particular Elements of a Section 1 Violation. a conspiracy may be found to violate the Sherman Act because it occurs "in commerce. as where persons engaged in interstate trade or commerce agree to suppress competition among themselves. but this does not require proof that each individual defendant had such an effect.. [a] A Conspiracy.

then such verification could be considered as evidence of an agreement to so affect prices. the behavior proscribed by the Act is often difficult to distinguish from the gray zone of socially acceptable and economically justifiable business conduct. 941.n53 Disapproving of the district court's instruction.S. 1129 (1940) .n54 Noting that "at least with regard to crimes having their origin in the common law. Griffith. 150. fixing. The jury was further charged that "if the effect of the exchanges of pricing information was to raise. 92 L. Ed.n51 The district court instructed the jury that if it found that interseller price verification had the effect of raising. however. Socony -Vacuum Oil Co.e.n57 In criminal antitrust cases. Ct. maintaining. 60 S. the type of conduct charged in the indictment in this case -. without inquiring into the intentwith which it was undertaken. e. In United States v. among other things." the Court noted that: [w]ith certain exceptions for conduct regarded as per se illegal because of its unquestionably anticompetitive effects.n49 several major gypsum board manufacturers and various of their corporate officers were charged with violating section 1 of the Sherman Actn50 by engaging in a conspiracy involving. We hold only that this elevated standard of intent need not be established in cases where anticompetitive effects have been demonstrated."n52 After extended deliberation.the exchange of price information among competitors -.g. that: [w]e do not mean to suggest that conduct undertaken with the purpose of producing anticompetitive effects would not also support criminal liability. United States Gypsum Co."n56 The Court went on to note. salutary and procompetitive conduct lying close to the borderline of impermissible conduct might be shunned by businessmen who chose to be excessively cautious in the face of uncertainty regarding possible exposure to criminal punishment for even a good-faith error of judgment. The imposition of criminal liability on a corporate official. then the parties to them are presumed. proof that the defendant's conduct was undertaken with knowledge of its probable consequences will satisfy the Government's burden. Specifically.is illustrative in this regard. as a matter of law.. the practice of telephoning a competing manufacturer to determine the price being currently offered on gypsum board to a specific customer. interseller price verification. for engaging in such conduct which only after the fact is determined to violate the statute because of anticompetitive effects. 84 L..n47 A demonstrated effect on interstate commerce is notterminated by reason of subsequent processing which transformed the nature of the material which earlier moved in interstate commerce. Cf.02 Act's proscription if it can be found that interstate commerce was substantially affected in the United States.n46 The substantiality of the effect of a restraint on interstate commerce must be measured by the substantiality of the interstate commerce which is touched by the restraint. and not by the competitive impact of the restraint. Ed. the jury returned guilty verdicts against each of the defendants. an interpretative presumption [has been established] that mens rea is required. the Supreme Court held that a defendant's state of mind or intent is an element of a criminal antitrust offense which must be established by evidence and inferences drawn therefrom and cannot be taken from the trier of fact through reliance on a legal presumption of wrongful intent from proof of an effect on prices. the government can satisfy the criminal intent requirement by proving either: 1) . 68 S. and stabilize prices. United States v. 811. to have intended that result. maintain. even if such effects did not come to pass.. 100.n48 [d] Intent. Ct. Indeed.[Footnotes omitted. or for that matter on a corporation directly. i. the Court found "that action undertaken with knowledge of its probable consequences and having the requisite anticompetitive effects can be a sufficient predicate for a finding of criminal liability under the antitrust laws.Page 4 5-19 Business Crime P 19. or stabilizing the price of gypsum board. United States v. 310 U. See.. holds out the distinct possibility of overdeterrence.S.]n55 After holding that intent is a necessary element of at least some types of criminal antitrust violations. instead. 105. therefore. the Court proceeded to define intent. 334 U. fix. 1236 (1948) .

the Sherman Act was deliberately cast in broad language in the expectation that the "precise line between lawful and unlawful combinations" could be drawn by the courts on a case-by-case basis. Because competitive harm is presumed.n71 the effect of such classification is merely to preclude the "necessity of minute inquiry"n72 where such practices are involved rather than to place limits on expansion of Sherman Act liability under "rule of reason" analysis.e. It applies in cases where per se condemnation is inappropriate.n66 The Fourth and Second Circuits. the federal courts have never fully succeeded in drawing such a "precise line.n73 a price-fixing case brought against private universities. they have developed the "rule of reason" doctrine under which only those contracts. the Fourth Circuit has rejected the argument that the 1974 amendment upgrading violations of the Sherman Act to felony statusn64 requiresan even more more stringent scienter requirement than that imposed by Gypsum.Specifically.Page 5 5-19 Business Crime P 19.a "gray zone" of Sherman Act liability involving rule of reason analysisn59-. combinations. however.n69 In actuality.n65 As previously stated. to be quite limited." which is to be employed when the activity at issue is not so anti-competitive that it falls in the per se category. have held that a corporation may be found vicariously liable for the acts of an agent committed within the scope of the agent's employment. especially those involving price-fixing. Brown University. In light of this requirement. In addition. pursuant to Gypsum.02 that the defendant knew that such anticompetitive effects were probable. . the defendant must promulgate 'some competitive justification' for the restraint. some level of intent is a necessary element of criminal antitrust crimes."n62 Furthermore. the court said the following about actions that fall somewhere between these two extremes: In addition to the traditional rule of reason and the per se rule. has been taken by the Third Circuit as evidence that "the Supreme Court's statement in Gypsum on intent was born out of a concern for borderline violations and was not meant to modify past precedent on price-fixing conspiracies.n70 While certain business practices found to be inherently unreasonable have been classified by the courts as per se violations of the Sherman Act. a third level of inquiry has been developed.n67 The Antitrust Division has consistently opposed the giving of such instructions.02[1].n68 [5] Defenses. or 2) the defendant intended a clearly illegal. notwithstanding that such acts violated the corporation's instructions to the agent as reflected in a general antitrust compliance guide. As noted in P 19. "certain exceptions for conduct regarded as per se illegal because of its unquestionably anticompetitive effects"). but where 'no elaborate industry analysis is required to demonstrate the anticompetitive character' of an inherently suspect restraint. based on its view that corporations are liable for the acts of their employees under the doctrine of respondeat superior. in United States v. If no legitimate justifications are set forth.n63 Moreover. this analysis is an "abbreviated rule of reason. anticompetitive result. above . the question has arisen whether a corporation's promulgation of an antitrust compliance program negates such intent. As stated by the Third Circuit.courts have construed the impact of Gypsum 's intent requirement on per se cases. courts sometimes apply what amounts to an abbreviated or 'quick look' rule of reason analysis. Some district courts have used instructions that specifically informed the juries that they could consider a corporation's antitrust compliance program in determining intent. The abbreviated rule of reason is an intermediate standard. yet is more troublesome than those activities which are normally afforded a rule of reason analysis. the Second Circuit found that requiring a showing of intent to produce an anticompetitive result would be inconsistent with the concept of declaring an action illegal per se.n60 The Gypsum Court's explicit recognition of the continuing vitality of Socony-Vacuum n61(i.n58 Because of the Gypsum Court's almost exclusive focus on interseller price verification -. or conspiracies that restrain trade "unreasonably" are deemed to fall within the Sherman Act's proscriptions. The cases post Gypsum are split on this issue. 'even in the absence of detailed market analysis' indicating actual profit maximization or increased costs to the consumer resulting from the restraint." Instead. [a] Vagueness of the Sherman Act as a Criminal Statute.

What is required.. the courts restrict their scrutiny of the challenged statute to the facts of the case at hand. the Court held that the Ninth Circuit improperly applied a "quick look analysis" in finding certain advertising restrictions adopted by a dental association to violate the Sherman Act because any anticompetitive effects were not "obvious" and that the restrictions "might plausibly be thought to have a net procompetitive effect."n84 Despite the 1974amendments upgrading criminal violations of the Sherman Act to felony status."n79 In a number of early Sherman Act prosecutions. [which] has long been clearly illegal. is an enquiry meet for the case.n80 In 1913.n74 The court concluded that the case at hand. bid-rigging. that a "quick look" analysis is only appropriate "when the great likelihood of anticompetitive effects can easily be ascertained. that a confident conclusion about the principal tendency of a restriction will follow from a quick (or at least quicker) look.n81 rejected the argument that the Sherman Act was "so vague as to be inoperative on its criminal side. Justice Holmes observed that "the law is full of instances where a man's fate depends on his estimating rightly. and market allocation among competitors. or possibly no effect at all on competition. Because . United States. Brownn92 the Supreme Court held that the Sherman Act was not intended to nullify state powers.' If the defendant offers sound procompetitive justifications. despite the fact that it was a price-fixing case."n77 As the Court stated: [T]here is generally no categorical line to be drawn between restraints that give rise to an intuitively obvious inference of anticompetitive effect and those that call for more detailed treatment..n75 The Supreme Court has cautioned.n76 In California Dental.Page 6 5-19 Business Crime P 19.n88 In the aftermath of Gypsum. however. it has been suggested that "[d]efendants charged with a criminal antitrust violation involving novel circumstances or in cases where they could not reasonably have foreseen that their conduct would fall within a per se category might assert persuasively that the Act is vague as applied to them. however. The object is to see whether the experience of the market has been so clear. the defendants raised vagueness challenges. [b] State Action Exemption. however. the Gypsum Court held that some level of intent is an essential element of a criminal antitrust offense. In vagueness cases not involving first amendment issues. details. such as price-fixing.n78 In California Dental. the Court indicated that a "sliding scale" formula applies to antitrust analysis where "the quality of proof required should vary with the circumstances. because of a host of factors all deriving from the vagueness of the Sherman Act's proscriptions. warranted this intermediate level of analysis."n82 Writing for the Court. the possibility of a successful vagueness challenge is remote. the court must proceed to weigh the overall reasonableness of the restraint using a full-scale rule of reason analysis."n89 As a practical matter. that is. and logic of a restraint.02 the presumption of adverse competitive impact prevails and 'the court condemns the practice without ado. rather. United States Gypsum Co.n86 The possibility of a successful vagueness challenge to the Sherman Act was again suggested by the Supreme Court's analysis in United States v. the Supreme Court in Nash v. or necessarily will be. some matter of degree"n83 and concluded that "there is no constitutional difficulty in the way of enforcing the criminal part of the [Sherman Act]. other courts have found that tying arrangements warrant this intermediate level of analysis. as the jury subsequently estimates it. In Parker v.n90 Because the Antitrust Division has. however. In addition. looking to the circumstances." and less than a "plenary market examination." and that something more than a "quick look."n91 it is unlikely that a defendant facing criminal prosecution will be able to successfully assert a constitutional challenge." may be appropriate in some cases.n87 As discussed above. involving a non-profit educational institution. in place of a more sedulous one. for a number of years. made it a practice to "target only conduct that is truly worthy of criminal sanction .n85 Nash continues to be followed in price-fixing cases.

even labor unions are liable under the antitrust laws wherethey combine with non-union groups.n101 Note that the learned professions do not fall within the scope of this exemption. For example. under section 412n103 of the Federal Aviation Act: An air carrier or foreign air carrier may file with the Secretary of Transportation a true copy of or."n95 Under Parker and its progeny. or by declaring that their action is lawful.Page 7 5-19 Business Crime P 19. and any modification or cancellation of an agreement. the challenged restraint must be 'oneclearly articulated and affirmatively expressed as state policy'. Without such oversight. or horticultural organizations . which was appointed by the governor. .."n97 The application of these standards was demonstrated in California Retail Liquor Dealers Ass'n v. the Sherman Act was not applicable. between the air carrier or foreign air carrier and another air carrier.."n94 In view of this extensive official oversight. modification. The state did not monitor market conditions or engage in any "pointed reexamination" of the program. nor did it regulate the terms of the fair trade contracts. a true and complete memorandum of. The state neither established prices nor reviewed the reasonableness of the price schedules. In the Supreme Court's view. n98 California's system for wine-pricing was held to satisfy the first standard because the legislative policy was forthrightly stated and clear in its purpose to permit resale price maintenance. or at a request for authority to discuss cooperative arrangements (except arrangements related to interstate air transportation). The Court explained that "[t]he national policy in favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement over what is essentially a private price fixing arrangement. the policy must be 'actively supervised' by the State itself. California's Prorate Advisory Commission authorized the organization of local cooperatives to develop marketing policies for the raisin crop. a foreign carrier.. . the state simply authorized price-setting and enforced the prices established by private parties. or another carrier..."n104 Under section 414 of the Act. or cancellation referred to in subsection (a) of this section when the Secretary finds it is not adverse to the public interest and is not in violation of this part. acting through the Commission. an agreement (except an agreement related to interstate air transportation). Section 6n100 provides that "[n]othing contained in the antitrust laws shall be construed to forbid the existence and operation of labor. if oral. agricultural. some federal regulatory statutes explicitly provide for exemption from the antitrust laws under certain circumstances. the result in Parker could have been different since the Court expressly noted that "a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it. the Court wrote. The Parker Court emphasized that the Advisory Commission.02 the Act was directed against "individual and not state action.n96 two standards for antitrust immunity have been established.n93 Under the program challenged in Parker. Section 412 further states that the Secretary of Transportation "shall approve an agreement. but also makes it at least arguable that the government should not be permitted to seek a criminal antitrust indictment without informing the grand jury of the existence of such . However. Inc. One of the most important sources of immunity from the antitrust laws is the Clayton Act itself."n107 From the standpoint of the criminal practitioner the applicability of such a statutory immunization not only raises the possibility of a substantive defense at trial. the program did not meet the second requirement for Parker immunity. or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof .. which adopts the program and enforces it. "First.n105 any person subject to an order from the Secretary of Transportation approving an agreement pursuant to section 412 is relieved from operation of the "antitrust laws"n106"to the extent necessary to allow the person to proceed with the transaction specifically approved by the order and with any transaction necessarily contemplated by the order. Midcal Aluminum." the Court concluded that state regulatory programs could not violate it. [I]t is the state.. request." However..."n99 [c] Express Immunity. second.n102 In addition. had to approve cooperative policies following public hearings: "It is the state which has created the machinery for establishing the prorate program .

United States Gypsum Co. the double jeopardy issue can arise either because of successive prosecutions in the same jurisdiction or because of separate prosecutions in different jurisdictions. and even then only to the minimum extent necessary.n115 or when the antitrust laws would prohibit conduct falling precisely within the detailed statutory scheme of enforcement and that statutory scheme specifically required consideration of competition. "fairly read. although not providing for specific immunity from antitrust liability. even though such a conspiracy was originally formed prior to the statutory period. however.nor shall any person be subject for the same offence to .. the Supreme Court held that the "unnecessarily confining nature" of the trial court's instruction on withdrawal n122 constituted reversible error. Only where there is a 'plain repugnancy between the antitrust and regulatory provisions' will repeal be implied.n116 [e] Statute of Limitations. Accordingly. limited the jury's consideration to only two circumscribed and arguably impractical methods of demonstrating withdrawal from the conspiracy. nonetheless sets up sufficient tension between itself and the antitrust laws as to impliedly repeal the latter. The doctrine of implied immunity comes into play where a particular federal regulatory scheme. Accordingly. much less commands."n120 In United States v. the antitrustlaws and the regulatory statutes must be reconciled.n111" 'Repeal is to be regarded as implied only if necessary to make [the regulatory statute] work.n109 The statutory schemes of regulation."n112 While the pervasive nature of the regulatory scheme is a factor in determining whether implied repeal exists. Such interference has been found when the antitrust laws would prohibit action specifically contemplated by the regulatory statute."n124 [g] Double Jeopardy. In the Supreme Court's view.. the charge.S. and the particular competitive situations.02 immunity.n117 The five-year statutory period is measured backward from the date on which the indictment is returned.n119 [f] Withdrawal."n123 The Court explained that "[n]othing that we have been able to find in the case law suggests. § 3282.n114 Implied immunity has thus been found to exist when enforcement of the antitrust laws would interfere with the operation of the regulatory agency.n121 a criminal prosecution under the Sherman Act in which the defendants vigorously contended at trial that competition within the gypsum board industry had resumed prior to the limitations period.n113 certain activities by industries perceived to be heavily regulated have nonetheless been held subject to the antitrust laws. that such confining blinders be placed on the jury's freedom to consider evidence regarding the continuing participation of alleged conspirators in the conspiracy.C.. The Double Jeopardy Clause itself is classic in its simplicity: ". Some guiding principles have emerged. "Affirmative acts inconsistent with the object of a conspiracy and communicated in a manner reasonably calculated to reach co-conspirators are generally regarded as sufficient to establish withdrawal or abandonment.n108 [d] Implied Immunity. it nonetheless may be prosecuted under the Sherman Act if the conspirators' efforts continued into the period not barred by the statute of limitations."n110 Where feasible. the implementation of those schemes. have all varied so greatly from industry to industry that no bright line for determining whether implied immunity exists has ever been illuminated. Criminal antitrust prosecutions in the federal courts are subject to the general five-year statute of limitations set forth in 18 U. Business practices alleged to be anticompetive typically involve conspiratorial conduct which is not only interstate in range but continual in duration. Implied repeal of the antitrust laws "is not favored and not casually to be allowed.n118 A conspiracy in restraint of trade is regarded as a continuing enterprise.Page 8 5-19 Business Crime P 19.

. as they so often do.n143 the Supreme Court held exempt from Sherman Act section 1 liability an exchange of price information among competitors because the exchange of information was necessary to protect the cement manufacturers from fraudulent behavior by contractors. 588 [45 S. Container Corp. holding in the following terms: While there was present here.02 be twice put in jeopardy of life or limb. Some 44 years later. an exchange of prices to specific customers.defendants may attempt to argue that the government has violated the Double Jeopardy Clause by splintering a single conspiracy into two or more parts for separate prosecution in different federal judicial districts.n138 [h] Permissible Information Exchanges.n133 Many states have independently proscribed anticompetitive business practices and enforce their proscriptions with criminal sanctions. If the legislature intended the penalty to be civil in nature. conduct in several states -.S. 69 L. where no intent to constrain individual competitive activity was found. 1104 (1925)] . United Statesn139 the Court held that section 1 of the Sherman Act condemned the exchange of specific price information with regard to specific customers where the clear purpose of the exchange was the stabilization of prices. v.n130 Generally speaking. does not necessarily prohibit a subsequent retrial for the same offense where a mistrial has been declared because of "unforeseeable circumstances" which make completion of the trial "impossible"n129 or after a successful appeal by the defendant predicated on some trial error other than insufficiency of the evidence. the Supreme Court has continued to hew to a long line of precedent holding that the Double Jeopardy Clause is only a limitation on successive prosecutions by the same sovereign.n144 Justice Douglas characterized the Cement Mfrs. even though its purposes were advanced in diverse states by diverse parties.n135 the Supreme Court held that the Double Jeopardy Clause is binding on the states. in Benton v. as in Cement Mfrs. The circumstances under which exchanges of information among competitors are permissible under the Sherman Act have been repeatedly examined by the Supreme Court. despite an apparent stabilizing effect on price. 268 U.n134 thus creating the possibility of sequential federal and state criminal prosecutions. however."n131 In Sherman Act prosecutions -. the permissibility of multiple punishments based on a single transaction hinges on whether each statutory provision "contains an element not contained in the other. In American Column & Lumber Co.n136 Where the second prosecution is brought in state court. United States. In determiningwhether a penalty is civil or criminal in nature. Protective Ass'n v.. Maryland. even if the penalties are denominated as civil. a defendant must show by a preponderance of the evidence that there was but oneconspiracy.either under some general double jeopardy guaranteen137 or under a specific section of the state antitrust statute. Ct.involving. a greater degree of protection may be obtainable under state law -.n128 The attachment of jeopardy..n132 To prevail upon this point.Page 9 5-19 Business Crime P 19.n127 Note that where the defendant waives his or her right to trial by jury."n126 Jeopardy is deemed to attach once the jury is sworn. two cases upheld the exchange of information among competitors. Ed. in 1925. Despite the logical consequences which might seem to flow from Benton. In Maple Flooring Ass'n v. however. courts engage in a two-part analysis requiring them first to determine whether the legislature expressed an intent as to the nature of the penalty.n141 Then."n125 Note that the Double Jeopardy Clause bars any subsequent criminal penalties. United States.n140 The same result was reached by the Courtin United States v. there was absent the .n142 the Sherman Act was held to permit the exchange of average cost data relating only to closed transactions. jeopardy attaches as soon as the court begins to sit as the trier of fact. in United States v. American Linseed Oil Co. In 1969. Protective Ass'n v. then the court proceeds to the second part of the analysis to determine whether the statutory sanctions are "so punitive in form and effect as to render them criminal. United States. 586. In Cement Mfrs.

In addition.n152 The 1974 amendment increased the maximum fine to $100.n156 Section 6 of the Sherman Act as originally enacted in 1890 remains in effect and provides that: Any property owned under any contract or by any combination.02 controlling circumstance.n150 [6] Penalties. they do not make all such exchanges illegal."n155 The maximum period of imprisonment. however.n154 The 1990 amendment increased the maximum fines yet again. however. Another remedy available under the Sherman Act is asset forfeiture. .."n148 The Gypsum Court noted that. Congress increased the maximum fine to be levied on both corporations and individuals for violations of the Act from $5. United States Gypsum Co. that a price concession is being offered to meet an equally low price offered by a competitor is sufficient to satisfy the § 2(b) defense.000 for individuals. rather than absolute certainty. Maximum penalties for Sherman Act violations have increased since the Act was first passed. or pursuant to any conspiracy (and being the subject thereof) mentioned in section 1 of [the Sherman Act]. and $10.n147 The Gypsum Court squarely rejected the defendants' argument that verification of price concessions with their competitors for the sole purpose of taking advantage of the section 2(b) "meeting competition" defense should be treated as a "controlling circumstance" precluding liability under section 1 of the Sherman Act. Justice Douglas in Container Corp. exchanged price information as a means of protecting their legal rights from fraudulent inducements to deliver more cement than needed for a specific job. and being in the course of transportation from one state to another. and Gypsum limit the situations in which competitors can exchange price data.000 for corporations. and the purposes and effects of such exchanges were not to stabilize prices. manyof the supposed benefits to be derived from interseller price verification were illusory. In 1955. the maximum period of imprisonment was increased from one to three years. In fact. that cement manufacturers. the Supreme Court arrested this development with its decision in United States v. Specifically.000 for individual violators and $1. the penalty provisions of the Act have been made more severe by three separate amendments.. to protect themselves from delivering to contractors more cement than was needed for a specific job. The intent of this provision is to prevent violations of section 1 by allowing the United States to seize property shipped inter-state in conjunction with an antitrust conspiracy. with a maximum of one year of imprisonment. the exact scope of the "controlling circumstance" exception alluded to by Mr. seizure. and thus receiving a lower price. shall be forfeited to the United States.Page 10 5-19 Business Crime P 19.000. the penalty section of the Act was amended by the Antitrust Amendments Act of 1990. was not changed by the 1990 amendment. however. remained largely undefined. thus upgrading Sherman Act violations from misdemeanor to felony status.n157 Section 6 has rarely been used. and may be seized and condemned by like proceedings as those provided by law for the forfeiture. research by . as a practical matter.n145 For a number of years. viz.000.000 for corporations. Courts have found exchanges of price information to be legal where the parties involved had legitimate reasons for such exchanges. resort to such verification practices was quite unnecessary since "[a] good-faith belief. In the Court's view.000. and condemnation of property imported into the United States contrary to law. Some of the lower federal courts read the "controlling circumstance" exception to Sherman Act liability as encompassing exchanges of price information when undertaken for the purpose of compliance with section 2(b) of the Clayton Act (as amended by the Robinson-Patman Act).n151 The Sherman Act was amended again in 1974 by the Antitrust Procedures and Penalties Act.000 to $50.n153 Most recently. This increase came as a result of Congress' view that the prior maximum fines were "inadequate to deter price-fixing and other restraints on trade .n149 Although Container Corp. or to a foreign country.. this time to $350. The amendment's legislative history indicates that Congress believed that the previous penalty structure was no longer commensurate with the potential offenses.n146 In 1978.

Specifically.n161 Specifically. This section. which is then subject to upward or downward adjustment based upon "the volume of commerce done by [the defendant] or his principal in goods or services that were affected by the violation. 1985. with the exception of offenses committed between November 1.000 for corporations).S. Inc. Furthermore. $10. Thus.000 for individuals and $500. therefore. whichever is greatest.000."n167 while the base fine for organizations is "20% of the volume of affected commerce. and (3) market allocation agreements among competitors. 1987.000 for individuals.n162 Therefore. mail fraud (18 U. a defendant's prison sentence or fine may be reduced pursuant to Antitrust Division recommendation if he or she lends substantial assistance to the government in an antitrust investigation or prosecution of another person or organization. the Antitrust Division is "increasingly including charges such as: wire fraud (18 U. this Act applied to offenses committed after January 1. there may be more cases brought under section 6 in the future.C. 1987. the latest one in 1930 [and] nobody in the Division remembers using this remedy. a defendant can avoid prosecution altogether."n158 Section 6 was recently invoked. offenses committed since January 1. but was re-enacted a month later on December 11. § 371)."n168 In determining the separate penalty under the Guidelines. § 7201)" in its cases. and allowed for fines for federal felonies to be set at the greater of the following three calculations: 1) the amount set by statute. which increased penalties for many federal crimes.S. and tax evasion (26 U.n173 Furthermore. conspiracy to defraud (18 U. or double the amount lost by the victim. Certain Property Owned by Salomon Brothers. pursuant to the Sentencing Reform Act of 1984.S.n170 As stated.C. As for the term of imprisonment. 2) double the gross amount that was gained from the violation or lost by the victim ("double gain/double damage"). all federal courts must apply the United StatesSentencing Commission's Federal Sentencing Guidelines. double the gross amount gained by the offense.C. the witness' testimony and any information derived from such testimony may not be used against the witness.n172 Despite the specificity of both the various statutory provisions and the Guidelines sections regarding penalties for violators of the antitrust laws. The double gain/double damage provision expired on November 1. however. or 3) $250.C. fines and prison sentences for Sherman Act violations have been increasing over time. pursuant to federal statute.02 the Antitrust Division shows that prior to 1992. Congress passed the Criminal Fines Improvements Act in 1984.n174 when a witness' testimony is necessary to protect the public interest but he or she invokes the protection of the fifth amendment. This trend has been further enhanced by the increase in the number of indictments which allege additional crimes along with antitrust violations. to all sentences. including antitrust violations..n159 in which the Division brought a case under sections 1 and 6 alleging that Salomon and others conspired to limit the number of May 1993 two-year treasury notes available in the secondary markets. the witness may be forced to testify pursuant to a court order granting such witness use immunity from his or her testimony. 1987 as part of the Criminal Fines Improvements Act of 1987."n160 In addition to the penalty provisions of the Sherman Act itself.S. the base level offense has a minimum recommended sentence of six to twelve months.n164 Three antitrust offenses are addressed by the Federal Sentencing Guidelines: (1) bid rigging. § 1341). 1987 and December 11. 1987. longer sentences. (2) price fixing.n175 Once use immunity is ordered. false statements (18 U."n166 The Guideline fine range for individuals is "one to five percent of the volume of commerce. A second way .S. For example.n171 This "bundling" of charges means a greater number of cases resulting in multiple convictions and. § 1343).C. but not less than $20. in the 1992 case United States v.000 for corporations. The case was brought under section 6 because it was believed that injunctive relief against Salomon could result in a more costly and inefficient market for these securities. 1985 warrant fines of either the amount specified by the Sherman Act ($350. consideration is also given to such mitigating factors as the existence of an antitrust compliance programn169 and the corporate defendants' cooperation with the government's investigation. however. "this section was cited in [only] four cases. thereby increasing the price of such notes to an anticompetitive level.n165 The Guidelines allow for the imposition of concurrent prison sentences and fines for individuals who commit one of these three violations. "will be most likely used in those limited cases where injunctive relief is not available.n163 as of November 1. § 1001). as a result of the above mentioned statutes and amendments regarding penalties. in certain circumstances.Page 11 5-19 Business Crime P 19.000.

§ 1. Assistant Attorney General. 93-528.S. 210).contains similar felony provisions. 26 Stat. 104 Stat. providing a treble damage remedy for violations of any of the antitrust laws of the United States [current version at 15 U. (Note that § 7 of the Sherman Act was superseded by § 4 of the Clayton Act. Antitrust Division. in § 7. 221 U. 1. 26 Stat. 21 Cong. v.usdoj. 647. 1890. 647.02 to avoid prosecution under the federal antitrust laws is pursuant to the Antitrust Division's corporate leniency policy. Pub. 1997) [http://www. 2460 (1890) (remarks of Senator Sherman). 26 Stat. 101-588 § 4(b). L. as amended bythe Antitrust Procedures and Penalties Act. § 2.01[1]. 2880. Ed.C. 2457. L. United States Department of Justice. Pub. (n5)Footnote 5.S. § 4. American businesses and customers--by artificially . For a brief description of the common law background. Dec. No. 26 Stat. Dec. See generally Robert Bork. 89 Stat. 21. (n3)Footnote 3. (n4)Footnote 4. 16.gov/atr/public/speeches/speech. L. 209. 38 Stat.. market allocation.usdoj. 1914. Ct."). the government was given the power to seek injunctive relief against violations of the Act. 323. (n6)Footnote 6. 94-145. and bid rigging steal from. 2880.htm] ("The investigation and prosecution of international cartels is one of the highest--if not the highest--priorities of the Antitrust Division. Deputy Assistant Attorney General. 1974. 1708. and the Antitrust Amendments Act of 1990. L.S. and the Antitrust Amendments Act of 1990. 1995) [http://www. 20. 1975. 1997) [http://www. as amended by the Antitrust Procedures and Penalties Act. United States Department of Justice. See Joel I. 1990).C. Acting Assistant Attorney General. and remains. § 1 (Act of July 2. Anne K. 731]). 15 U. 801-806 (1965). If we dilute its strength by trying to stretch it to address novel and less compelling cases. ch. 1890. No. we will surely regret it. see above P 19. Nov. § 2. and commit fraud upon. United States Department of Justice. 775. That is because price fixing. private litigants were given the right to obtain "threefold the damages" sustained as a result of a violation of the Act (Sherman Antitrust Act. 15 U. § 7.C.gov/atr/public/speeches/jik97220] ("so much of what we do in criminal enforcement involves the application of settled law to the facts that have been turned up during our investigations . § 3. ch. Bingaman. Standard Oil Co. Under this policy. (n2)Footnote 2. Pub. 647. No.n30] ("Criminal enforcement against the most serious antitrust offenses has been. 104 Stat. "Trends in Criminal Antitrust Enforcement" (Nov. 12. ch. Gary R. 16. § 15] [originally enacted as Act of October 15.S.S.C. The Rule of Reason and the Per Se Concept: Price Fixing and Market Division.. 88 Stat. 209). ch. Dec. 1990). § 4(a). 1974. § 3) .usdoj. 88 Stat. Spratling.C. 93-528. "Criminal Enforcement in a Globalized Economy" (Feb. the Consumer Goods Pricing Act of 1975. L. § 3. § 4). (n8)Footnote 8. 502. Nov. 801. § 2 (Act of July 2. Rec. we must remain vigilant in ensuring that we use the criminal sanction only when it is clearly appropriate. 209.C. 1890. 31 S.n176 FOOTNOTES: (n1)Footnote 1. Klein. In § 4 of the Sherman Act (now codified at 15 U. No. Note that § 3 of the Sherman Act (now codified at 15 U."). Pub. 30.S. 21. § 1.the section which extends the proscriptions of §§ 1 and 2 to United States territories and the District of Columbia -. our core mission. Pub. 619 (1911) . Antitrust Division. 647. United States.gov/atr/public/speeches/grs97221. 101-588. ch. 15 U. 55 L. 21.J.Page 12 5-19 Business Crime P 19. 74 Yale L. an organization involved in an antitrust conspiracy can avoid imprisonment and fines if it comesforward with information about both the conspiracy that it is participating in and its co-conspirators. § 1 (originally enacted as Act of July 2. 1708. Antitrust Division.S. "Criminal Antitrust Enforcement Against International Cartels" (Feb. (n7)Footnote 7. No.

and thus caused any act done by any of the enumerated methods anywhere in the whole field of human activity to be illegal if in restraint of trade. 55 L. Assistant Attorney General Antitrust Division (1988). it was deemed essential by an all-embracing enumeration to make sure that no form of contract or combination by which an undue restraint of interstate or foreign commerce was brought about could save such restraint from condemnation. That the context manifests that the statute was drawn in the light of the existing practical conception of the law of restraint of trade. 1."). That in view of the many new forms of contracts and combinations which were being evolved from existing economic conditions. 663 (1911) . which we have reviewed. The Court's opinion explained: In view of the common law and the law in this country as to restraint of trade. at 515-516. 63 Cornell L. see also Donald I. -. Mercurio. Ct. 106. See James P. lowering the quality of goods and services. Rule. Ed.02 raising prices. Ed. And as the contracts or acts embraced in the provision were not expressly defined. 221 U. whether resulting from combinations or otherwise. because it groups as within that class. 632. but all contracts or acts which theoretically were attempts to monopolize. 60 Minutes With Charles F. we think it results: a. since the enumeration addressed itself simply to classes of acts. (n10)Footnote 10. reprinted in 57 Antitrust L. such as price-fixing. 51 Notre Dame L. an undue restraint. Thus not specifying. which would constitute an interference. 502. c.J. 31 S. Antitrust Crimes: Time for Legislative Definition.S. 438 (1976). 31 S. 619 (1911) . in a given case. Ed. 55 L. American Tobacco Co. a particular act had or had not brought about the wrong against which the statute provided. 31 S. at 645-646 . 257.Page 13 5-19 Business Crime P 19. United States. it follows that it was intended that the standard of reason which had been applied at the common law and in this country in dealing with subjects of the character embraced by the statute was intended to be the measure used for the purpose of determining whether. 55 L. 55 L. Baker. United States v. it inevitably follows that the provision necessarily called for the exercise of judgment which required that some standard should be resorted to for the purpose of determining whether the prohibition contained in the statute had or had not in any given case been violated. (n11)Footnote 11. and reducing choices. Standard Oil Co.S. [it] has been careful to target only conduct that is truly worthy of criminal sanction .The targeted conduct.S. whether old or new. yet which in practice had come to be considered as in restraint of trade in a broad sense. bid-rigging.. Rev. 221 U. Ed. (n12)Footnote 12. . at 512-514. 405 (1978). at 641-643 . 31 S. Rev."). (n9)Footnote 9. 221 U. 221 U. (n13)Footnote 13. 437. not only contracts which were in restraint of trade in the subjective sense. Rule. Ct. 261 (1988) ("At the same time that [the Antitrust Division of the Department of Justice has] been expanding [its] aggressive attack on criminal antitrust violators.. but to protect that commerce from being restrained by methods. has long been clearly illegal. at 51-55. To Indict or Not to Indict : Prosecutorial Discretion in Sherman Act Enforcement.. and the illuminating effect which that history must have under the rule to which we have referred. Ct. those classes being broad enough to embrace every conceivable contract or combination which could be made concerning trade or commerce or the subjects of such commerce.that is. b. but indubitably contemplating and requiring a standard. at 59-62. The statute under this view evidenced the intent not to restrain the right to make and enforce contracts. Ct.S. Charles F. and market allocation among competitors. v. which did not unduly restrain interstate or foreign commerce.

1195-1196 (3d Cir. 62 L. (n16)Footnote 16.. 1. Ct.S. 2d 623 (2007) .S. the nature of the restraint.. 246. 1106 (7th Cir. Standard Oil Co. or whether it is such as may suppress or even destroy competition. Ed. to restrain. 444 U. Ed. Indus.2d 49 (9th Cir. (n15)Footnote 15.S. but because knowledge of intent may help the court to interpret facts and to predict consequences. This is not because a good intention will save an otherwise objectionable regulation. 47 S. it may be maintained unchanged because of the absence of competition secured by the agreement for a price reasonable when fixed. Ed. 2712-13.2d 115 (3d Cir. 2705._. 840 (1979) ..S. 2712-13. J. (n20)Footnote 20. 1991) . United States v. Ed.S. denied. involves power to control the market and to fix arbitrary and unreasonable prices. Ct. 1046 (9th Cir. in actuality. 72 S. (n18)Footnote 18. 2d 623 (2007) (discussing rule of reason). Inc.) . 884 (1979) . 342 U. Ct. 750 F. denied. whether reasonably exercised or not. its condition before and after the restraint was imposed. 71 L. See United States v. See 273 U. Ed. United States v.S. Ct.2d 1183. (n21)Footnote 21. United States. the purpose or end sought to be attained.): Every agreement concerning trade. To bind. Inc. 936 F._. 1984) . 1974) .S. & Maintenance Co. The power to fix prices.Ct. The reasonable price fixed today may through economic and business changes become the unreasonable price of tomorrow. See Chicago Board of Trade v. United States. 462 F. restrains. Agreements which create such potential power may well be held to be in themselves unreasonable or unlawful restraints. 2864. are all relevant facts. Trenton Potteries Co. is the elimination of one form of competition.. without the necessity of minute inquiry whether a particular price is reasonable or unreasonable as fixed and without placing on the government in enforcing the Sherman Law the burden of ascertaining from day to day whether it has become unreasonable through the mere variation of economic conditions. 98 S. rev'd. The history of the restraint. 55 L. see also Leegin Creative Leather Products. Ct.02 (n14)Footnote 14. (n19)Footnote 19. 422. actual or probable.. cert. 619 (1911) . Inc. or the reverse. Manufacturers' Ass'n of the Relocatable Bldg. at 379. 240. 221 U. 870 (1978) ..2d 414 (3d Cir. Inc. v. 392. 383 F. Supp. 31 S.2d 1042. Ct. denied. Pa. Moreover. Ed. is of their very essence. 246 U. v. The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition. 288 (1952) (conclusive presumption may not operate to deny accused right to have each element of crime charged submitted to jury). 1972) (defendants' argument that per se rule was conclusive presumption and operated to deny them their due process rights was inapposite because "conclusive presumption" established by per se rule was. 47 S. 598 F. and its effect.. 700 (1927) . Ed. 71 L. Ct. United States v. 168 L. The history of Gypsum is as follows: United States v. Brighton Bldg. 231. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied. 2705. 127 S. substantive rule). See also Leegin Creative Leather Products. Once established. 377. United States Gypsum Co. 462 (W. cert. 2d 854. 57 L. v.S. United States v. at 397-398. if effective.S. Inc. at 180. United States Gypsum Co. see also Morissette v. 221 U. and aff'd. For a history of proceedings on remand. 242. 238. see 600 F. Fischbach & Moore. (n17)Footnote 17.S. at 694 . 422 (1978) .S.S.Ct. See. Ed.) .D. 1977) . _U. United States. 127 S. the reason for adopting the particular remedy. 168 L. 502. the evil believed to exist.g. _U. United States v. 2874. we should hesitate to adopt a construction making the difference between legal and illegal conduct in the field of business relations depend upon so uncertain a test as whether prices are . 96 L. PSKS. 550 F. 55 L. at 648. 438. 470 U. J. 683 (1918) (Brandeis.S. 444 U.2d 1101. 273 U. PSKS. 38 S.Page 14 5-19 Business Crime P 19. cert. in the absence of express legislation requiring it. Brown.) : The aim and result of every price-fixing-agreement. at 705 (Stone.. 438 U. 31 S. Ed. 1029 (1985) . 438 U. e.. every regulation of trade.

1129 (1940) (held per se unlawful an agreement between sellers of gasoline to stabilize prices by purchasing excess supply on the spot market). Arizona v.g. 60 S. Brighton Bldg. See.02 reasonable -. Ed. Trenton Potteries Co. Topco Assocs.2d 469 (10th Cir. PSKS. 405 U. 107 L. See. 823 (1994) . 17 F.. 71 L. Ct.S. 811. FTC v. cert. 150. Supp. United States v.2d 1138 (1st Cir. Inc.. denied.. or the fact that prices were not unreasonably high or arbitrary. Ct. e. e.g. 598 F.a determination which can be satisfactorily made only after a complete survey of our economic organization and a choice between rival philosophies. 107 L. cert. 768. MMR Corp. 127 S. Leegin Creative Leather Products... 2466. Co. Aetna Casualty. or their effect on the industry.2d 1157 (4th Cir. division of markets and bid rigging. . _U. 493 U. AMEC E&C Servs. at 379. 31 L.. Supp. v. or any other explanatory matter. 457 U.2d 1042 (9th Cir. it cannot be justified or excused by the elimination of competitive evils. 936 (1991) . United States v. 2705. See.g. Ct. Ed. Ed. 1993) (held alleged boycott by workers' compensation insurers' of state insurance market constituted a per se violation).. e. (n26)Footnote 26. W. Conduct regarded as unreasonable per se includes price fixing. United States v. 73 L.S. (n24)Footnote 24.S. 168 L. Guthrie. 102 S.Ct. 2d 957 (D. Ct. 2d 515 (1972) (supermarket cooperative association's decision to grant exclusive territory arrangements for sales of the brand products it developed held per se unlawful). cert. Brown. 395 F. denied. Idaho 2005) (because bid-rigging to exclude a competitor would be per se illegal. 273 U.3d 397 (9th Cir.._. Socony-Vacuum Oil Co.S. United States v. 1990) (roofers agreement to divide up customers for installation of roofs held to be a per se violation). Sandy River Nursing Care v. 92 S. e. defendant's § 1 cross-claim survived summary judgment). Suntar Roofing Inc. (n22)Footnote 22. 1990) (held that district court did not err when it applied per se liability rules to a bid rigging scheme among electrical contractors).S. 936 F. 1126. at 705 . This means that the mere doing of the act itself constitutes an unreasonable restraint in interstate commerce. Ed. Wash.. See. United States v. 411. and there were questions of fact concerning whether plaintiff and the other bidder acted in concert to exclude a competitor from bidding. the Seventh Circuit approved the district court's use of the following instruction on the per se rule: Certain types of conduct are regarded as unreasonable per se.S. 84 L. 783 F. 596. Superior Court Trial Lawyers Ass'n. aff'd.D. (n25)Footnote 25. 332. United States v. denied. Ed. 513 U. 2d 48 (1982) (agreement to fix prices between medical care foundations was per se unlawful even though agreement set maximum prices). Ed.S. 110 S. at 397 98. 907 F.2d 489 (5th Cir. Ct. Ed. 110 S. 814 F. 818 (1993) . 2d 851 (1990) (lawyers refusal to continue to represent indigent defendants until they received increased compensation for these cases held to be a per se violation). Inc. 2d 851 (1990) (held that a decision by a group of lawyers to boycott representing indigent defendants until the lawyers received a pay increase was subject to the antitrust per se liability rules). Ct. 2712-13. 1986) (held that scheme where one bidder gave another bidder an intentionally high number to bid was per se violation). In United States v. or the good motives of the conspirators... v.S. 493 U. Superior Court Trial Lawyers Ass'n.S. 985 F.S. 499 U. 942 (E. United States v. & Maintenance Co.. (n23)Footnote 23. Nu-West Indus.g. 768. United States v.Page 15 5-19 Business Crime P 19. and it is not necessary to consider why the acts were committed. 1993) (agreement among individuals regarding who would bid on specific items at a public non-judicial foreclosure sale of real property held to be a per se violation). 2d 623 (2007) .) . Where conduct unreasonable per se is shown. Maricopa County Medical Soc'y.F. FTC v. 897 F. 310 U. 47 S.2d at 1105 .. 1991) (held per se illegal an agreement among billboard companies that restricted their ability to compete for the others' sites). 510 U. Brinkley & Son Constr. 411.

Charles F.. courts often inquire into market conditions to decide whether the particular arrangement should be subject to a per se analysis."). Ed. It also is impossible to imagine a situation where the other three criteria are met and the requisite intent is absent. 2 v. 57 L. (n31)Footnote 31. it has also recognized that tying may have procompetitive justifications that make it inappropriate to condemn without considerable market analysis. the United States District Court for the Western District of Wisconsin had jurisdiction since there was ample evidence of overt acts committed within that district). is hereby declared to be illegal. As amended. while the Court has spoken of a "per se" rule against tying arrangements.. 309 F. in the discretion of the court. Assistant Attorney General Antitrust Division (1988). Dist.Page 16 5-19 Business Crime P 19. Antitrust Law Developments 662 (4th ed. Ed. Ed. 9.3d 193. 80 L. 2d 70 (1984) ("Per se rules may require considerable inquiry into market conditions before the evidence justifies a presumption of anticompetitive conduct. Ry. 1232 (1913) . 257. No. Ct. Ct. 1. See United States v. if any other person. Nash v. 85.. See Phillip E. Antitrust Law. 356 U.18 (4th Cir. 104 S. however. 150.000 or by imprisonment not exceeding three years. United States v. Brown. on conviction thereof. § 1.02 (n27)Footnote 27. See ABA Section of Antitrust Law.2d 1042 (9th Cir. the fact that the parties conceal their agreement strongly corroborates the existence of the requisite intent. v. See. or with foreign nations. 1991) (holding that "Gypsum does not require proof of a defendant's intent to produce anticompetitive effects where the defendant is charged with a per se violation of the Sherman Act"). or by both said punishments. Hyde. and. Note. Ed.C. the section provides as follows: Every contract. 209. 78 S. (n29)Footnote 29.S. n.") (citation omitted). 466 U. 1551. 252-53. e. 811. 2. 1129 (1940) (although conspiracy was apparently formed elsewhere. Ct. Rule. 468 U. NCAA v.S. 60 Minutes With Charles F. Areeda and Herbert Hovenkamp. 229 U. 84 L. 378. For example. 104. shall be punished by fine not exceeding $10. . Board of Regents. 60 S. Indeed.000. it includes an agreement among competitors. that in some cases evidence of the commission of an overt act within the district of prosecution may be a jurisdictional predicate. combination in the form of trust or otherwise. United States. however. United States. 104 S. 265 (1988) ("The fact that we [at the Antitrust Division] have confined our criminal prosecutions to conduct that generally conforms to the previous three criteria [i. Socony-Vacuum Oil Co. 33 S. 2002) (any inquiry into the validity of a tying arrangement must focus on the market or markets in which the two products are sold. in restraint of trade or commerce among the several States. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony. 1997) ("[a]lthough the language of the statutes offers no criteria for determining whether a particular violation should most appropriately be addressed criminally or civilly.000 if a corporation. 6. purposeful violation of the law. 2948. Rule."). 310 U. 82 L.. Ct.S..S. at 38 (1995) (noting that the Supreme Court in Gypsum "indicated that mens rea can be presumed when the challenged conduct is illegal on its face"). See. 2 L. Microsoft Corp. Dickson v. and it is covert and fraudulent in nature]. for that is where the anticompetitive forcing has its impact). Ct.g. that while tying arrangements are considered to be per se violations. ensures that we are fair.e. (n28)Footnote 28. reprinted in 57 Antitrust L. 2d 545(1958) (tying arrangements "are unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a 'not insubstantial' amount of interstate commerce is affected") (citations omitted). the Division has a long-standing policy of seeking indictments only where it believes it can prove a clear. 780. 2d 2 (1984) ("[i]t is far too late in the history of our antitrust jurisprudence to question the proposition that certain tying arrangements pose an unacceptable risk of stifling competition and therefore are unreasonable "per se' "). Northern Pac. (n30)Footnote 30. 373. e. Ed. Note.S. 514.S. or conspiracy.g. Jefferson Parish Hosp. $350. or. Current version at 15 U.J. § 312c. 936 F. it restricts output and/or raises prices.

26. 600 F.. 621 F. (n36)Footnote 36. is not required to prove a formal. See also United States v. David E. who worked together on and off throughout most of the entire period. 328 U. 1456 (11th Cir. cert. 1. See.02 (n32)Footnote 32. cert. 645.2d 414. 218 U. DCH Healthcare Auth. Inc. 1151 (1st Cir. 31 S. c. § 3282).2d 1147. 921 F.2d 198 at 201 (5th Cir. express agreement with all the terms precisely set out and clearly understood by the conspirators") (citations omitted).g. 469. (n34)Footnote 34. Corp.S. Gypsum. 600 F. 557 F.2d 1438.2d 1270.S. 1575 (1946) . renumbered by Pub. 257. 1273 (9th Cir. Ochoa. that courts have found that. 75 Stat. (n38)Footnote 38. 1980) ("Participation in a criminal conspiracy need not be proved by direct evidence.) . 810.S.' United States v. Paramount Film Distrib. Ct. Ct.S. (n37)Footnote 37. cert.. Note. MMR Corporation.S. 86 L. 884 (1979) . (n35)Footnote 35. 68 Stat. While certain original members of the conspiracy apparently dropped out of it and while new firms were drawn into the group.. 1168 (1910) . 680 (1942)) . 1152 (1st Cir. 938 (1977) . Note that it is sufficient if the element of continuity can be inferred from other evidence. 62 S. however.2d 414. American Tobacco Co. 621 F. 444 U. Thompson. United States. 1980) : After examining the record. and the facility with which each additional series of bids were rigged with a minimum of planning and communication makes reasonable an inference of continuity which suffices to rebut appellant's claim that each incident of bid rigging was approached on an isolated. 495 (5th Cir. § 12(a). 62 Stat. formerly § 10(a).. Kissel. denied. at least for civil claims. (n33)Footnote 33. 828. 1980) . v. United States v. ad hoc basis. but 'conscious parallelism' has not read conspiracy out of the Sherman Act entirely' ") (footnote omitted). Champion Int'l Corp.' ") (citing Glasser v. United States Gypsum Co. 142-43 (1966) ("ithas long been settled that explicit agreement is not a necessary part of a Sherman Act conspiracy"). They therefore require that evidence of a defendant's parallel pricing be supplemented with 'plus factors. 74 S. United States v. we find that there was sufficient evidence to allow the jury to find that there was a single. c. Ed. 1125. 315 U. 54 L. Sept. Inc.. independent conduct of competitors. e. 'A finding of a single conspiracy is not defeated merely because of personnel changes. See United States v. denied.) (circumstantial evidence sufficient to prove existence of tacit agreement to submit rigged bids).2d 1147. United States v. 1145. 541. 90 L. including appellant and McCabe. 127. Ed.' "). 346 U. the issue becomes . 609 F. L.) . Todorov v. v. David E. 1954. 121-122 (3d Cir. the unchanging jargon. 884 (1979) : When the conspiracy is alleged to have been formed prior to the statutory period. 601. 384 U. 417 (3d Cir.S. denied.C. 444 U. Act of June 25.. a common purpose or plan may be inferred from a 'development and collocation of circumstances. 781. courts are concerned that they do not punish unilateral.. 417-18 (3d Cir. See United States v. Thompson. 1999) ("Because the evidence of conscious parallelism is circumstantial in nature. See United States v. 648. See Theater Enters. Ct 124. 15-year conspiracy as charged in the indictment. 1961 (current version at 18 U. as amended by Act of Sept.2d 489. Ed. § 1. In re Baby Food Antitrust Litigation. Ed. 98 L. there was a sufficient 'core' group. 457.S.. however. the implied reciprocity. 1990) ("[t]he government. United States v. 907 F. 1948.3d 112. 1214. 60. Ct. 273 (1954) ("[c]ircumstantial evidence of consciously parallel behavior may have made heavy inroads into the traditional judicial attitude toward conspiracy. No. 1990) ("we require more than mere evidence of parallel conduct by competitors to support an inference of a conspiracy").S. 87-299.S. 434 U. 80. United States. Most importantly. evidence of parallel conduct alone is insufficient to prove a violation. 166 F. General Motors Corp. 66 S. 607.Page 17 5-19 Business Crime P 19. 537.

647. 2d 728 (1980) . 533 (4th Cir. The Gillen court distinguished United States v.. ("[T]he trial court correctly instructed the jury that the government must prove the defendants' intentional participation in the conspiracy to rig bids. 1162. Fitapelli. There is no requirement that the Government prove a new agreement in the statutory period.2d 391. 232. Ass'n. e. 293. 57 L. Greenville Publishing Co.2d 732 (9th Cir. v. cert. United States v. Ed. 186. Gulf Oil Corp.S. Ninth Circuit: Las Vegas Merchant Plumbers Ass'n v. The government may also allege that the activity in question occurred "in commerce.Page 18 5-19 Business Crime P 19. Ct. 1979) . 568 F. J. We agree with the Second Circuit that 'the Government must present evidence justifying the jury in finding beyond a reasonable doubt that the particular agreement into which a defendant entered continued into the period not barred by limitation. (n39)Footnote 39. 960. Real Estate Bd.") (citations omitted). denied. denied. Ct. 450 (1980) . Ct. Ed. Ed. 2d 555 (1965) . cert. 1083 (5th Cir. Inc. 502. Foley.S. Borelli. 714. 186. Co. 427. Ct. 379 U. Ct. 903 (1978) . Ed. Ct. 95 S. 2d 378 (1974) .S.2d 682. United States v. denied. Ed. 100 S. cert. Inc.S. United States v. 951 (1945) . Copp Paving Co. (n42)Footnote 42. cert. Trustees of Rex Hosp. 194-95. United States v.02 one of continuation. Patten. denied. 1328 (4th Cir. 1204 (1932) .. 74 S.S. Ct.' United States v. Ct. 98 S.7 (5th Cir. 1964) ." See. denied. 727. Employing Plasterers Ass'n. 1168 (1910) . 452. Kissel. Fourth Circuit: United States v.. United States v. The government did not have to prove the defendants' specific intent to unreasonably restrain trade. 333. United States v. 57 L. 689 n. 533. 496 F. 2864. 425 U. Ct. Ed. (n40)Footnote 40. 728 F.). 392. 435. 422. 1174. Ct. 124.2d 1461 (11th Cir.) . 286 U. 866 (1979) . 474 U. 226 U. 62 L.. Daily Reflector. 1848. United States v. 601. Smith Grading & Paving.2d 541. 598 F. 598 F. Ed. 2d 338 (1976) . 336 U. Ed. See.. 444 U. of New Orleans. Inc. denied. Fifth Circuit: United States v.) .2d 376. South-Eastern Underwriters Ass'n. Ct. Women's Sportswear Mfrs. 464. 48 L. 54 L. 52 S. 1043 (1980) . Ed.S. 62 L. Ed. . 599 F. (n41)Footnote 41. Atlantic Cleaners & Dyers.S. 1043. 661. Gillen. 805 (1949) : "If it is interstate commerce that feels the pinch it does not matter how local the operation which applies the squeeze.2d 1078. 64 S. Inc. 444 U. United States Gypsum Co. 1986) . 76 L. 385 (2d Cir. United States v. Inc.S. 786 F. Ed. 141. 545 (3d Cir. Ed. 525. 89 L. 743.S. 347 U.S. 324 U. Ct. denied. 33 S. e. 438 U. 760 F. 607. Cadillac Overall Supply Co. Inc. See.. Frankfort Distilleries.g. 1954) . See also United Statesv. cert. v. the following cases: United States Supreme Court: McLain v. Ct. 336 F.2d 1323..) .S. Young Bros. 1005 (1985) . 341 (1913) (criminal conspiracy to "run a corner in" the interstate cotton market).S. 419 U. 1328 (4th Cir. 437 U. cert.S." (Roberts. 210 F.2d 1323. United States.S. 444 U. 541.S. 218 U. 98 L. 85 S.. 2d 441. 469 U.) .g. Foley. United States v. 31 S. v. 1974) . 881 (1984) . 738.2d 527. 618 (1954) . 558.. 322 U. v.. 93 L. Ed. United States. 13 L. 189.g. 100 S. 1979) . e. United States v. 42 L..S. Cf. 460. cert. Hospital Bldg. 69 S. 88 L. 2d 854 (1978) (in which the Supreme Court held that intent must be proven by the government in a criminal antitrust prosecution in which the defendants were alleged to have engaged in interseller price verification) on the ground that Gypsum explicitly recognized that price-verification claims should be treated as an exception to the rule requiring proof of intent. 96 S.. 1440 (1944) . 65 S. 444 U. (n43)Footnote 43.S.. 395 (4th Cir.S.

. See. Ed. 67 L. Ct. (1948) . 444 U. Ct. United States. denied. Wallace. e. Ed. 839 (1923) . of Trade v. California.2d 969. By placing the Goldfarb holding on the available ground that the activities of the attorneys were within the stream of interstate commerce.. Ed. 2864.Page 19 5-19 Business Crime P 19. of New Orleans. 920 (1980) . Real Estate Bd. 276. 2004. 773. Ed. 452 (1980) . 25 S.. Ed. Co. But see discussion of Goldfarb in McLain v. 2d at 872 . Virginia State Bar. 421 U. 2d 441. Co. 42 S. at 441. Ct. 43 S. Swift & Co. 502. 295 (7th Cir.S. 49 L. v. 1977) . 2d 441. 262 U. 54 S. at 2875. (n50)Footnote 50.' 421 U. 95 S.S. 518 (1905) . of New Orleans. American Crystal Sugar Co. 62 L. 125 L. 804 (1934) (intrastate).. Ed. 62 L.S. 438 U. (n45)Footnote 45. v. Ct. 100 S. 764. 400 U. 2d 854 (1978) . 109 F. 375. cert. Inc. 375.S. 95 S.S. cert. § 1. It has been more than 30 years since this Court stated. 398-400. denied. 2004. Goldfarb v. 57 L.02 United States v.2d 292. 518 (1905) . the Supreme Court's opinion was devoted almost in its entirety to that portion of the government's case alleging interseller price verification -.2d 1461 (11th Cir. 'At this late day we are not willing to take that long backward step. Ct. 773. United States v. (n51)Footnote 51. Cf. Fitapelli.C. (n49)Footnote 49.S. To adopt the restrictive interpretation urged upon us by respondents would return to a jurisdictional analysis under the Sherman Act of an era long past. at 235. The Goldfarb holding was not addressed to the 'effect on commerce' test of jurisdiction and in no way restricted it to those challenged activities that have an integral relationship to an activity in interstate commerce. 44 L. 2891.. 232. Virginia State Bar. Real Estate Bd. 396. See Chicago Bd. 57 L. 2d 572 . Current version at 15 U. 612 F. Ct. McLain v. 98 S. Olsen..a practice which the Court categorized as falling within a "gray zone. and Swift & Co.S. 66 L. 232. Ct. United States. 276. United States.S. 421 U. 25 S. Although some of these allegations apparently involved straightforward price-fixing (which would be a classic per se violation of the Sherman Act).S.S. 470. Nippon Paper Indus. (n44)Footnote 44.. 422. 244. United States v. 57 L.D. 244.2d 115 (3d Cir.. 95 S. at 2869. 509 U. 786 F. because of the 'inseparability' of the attorneys' services from the title examination process. Ed. 1. 293. 258 U. 502. 495. 2004. 2d 612 (1993) (permitting civil § 1 claims against conspiracy occurring entirely in Britain but directed at American insurance market). Ct.g.S. Ed. 100 S. 1997) (upholding criminal indictment for conspiracy occurring entirely in Japan to fix price of fax paper in United States). 510. 334 U. 98 S.S. 2d at 864 . Inc. 735 (1922) . 974 (10th Cir. 462 (W. Sherman Act jurisdiction was established. 35. (n46)Footnote 46. Stafford v. at 784-785.. United States Gypsum Co. 49 L. 78 L. 196 U. Azzarelli Constr. Co. Ed.3d 1 (1st Cir. The indictment against the Gypsum defendants specified some 13 types of action allegedly taken by them in formulating and effectuating their conspiracy. Wilshire Oil Co. 438 U. Ed.S. v.S. Inc. 452 (1980) : The facts of Goldfarb [v. 1974) . Ct. we held that the legal services were in turn an 'integral part of an interstate transaction.) . 44 L. Since the financing depended on a valid and insured title we concluded that title examination was 'an integral part' of the interstate transaction of obtaining financing for the purchase of residential property and. 427 F. 1986) . 2d 572. Teamsters Local 167 v. Ct. Ct. 515-521. Pa. 113 S. 447 U. United States v. see also Hartford Fire Ins.' Mandeville Island Farms. rev'g 383 F. Supp. 583 (1975) (necessity of title examination to assure valid lien for interstate lenders demonstrated "that interstate commerce has been sufficiently affected" ) (emphasis supplied). 2012. 291 U. Ct. 444 U." 438 U. Ct. 1979) .S. Ed.S. 98 S. Ct. 796. . aff'g on other grounds 550 F. see also United States v. 510. (n47)Footnote 47. 398. Ed. (n48)Footnote 48. at 429. 196 U. 397. 44 L.S. 2d 572 (1975)] revealed an application of the state bar association's minimum fee schedule to fix fees for attorneys' title examination services. v. 829 (1970) . Ed.S. 785. Ed.

453 (10th Cir. 57 L. the conduct of appellants abundantly satisfies the Gypsum standard that although criminal offenses under the Sherman Act should be 'construed as including intent as an element' [ 438 U. It is impossible to infer lack of the requisite intent or mens rea in their conduct. 98 S. 42 S. 98 S. 430. 1134 (1983) . 98 S. Campbell Hardware Co.. at 443.. see United States v. Ed. 604 (1922) . 57 L. 438 U. we conclude that the Indictment. Ed.' 438 U.S. 376. the Gypsum Court noted another consideration militating for a construction of the Sherman Act that included intent as an element: Further. 470 F. but instead simply to regulate business practices regardless of the intent with which they were undertaken. Ct. cert. e. at 444. Supp. at 2877 . Clearly the appellants were 'consciously behaving in a way the law prohibits. 66 L.. Their attention was specifically called to the illegality of collusive bidding when they executed affidavits denying the existence of such behavior. Co. at 2872.02 (n52)Footnote 52. at 2875. Ed.S. .) (n53)Footnote 53. 98 S. 1983) ("The mens reas required for a criminal prosecution under section 1 of the Sherman Act is an intent to enter an agreement in restraint of trade. Mass. 258 U. understanding and concert of action. 1979) (rejecting a challenge to the sufficiency of an indictment. 57 L.S.") (citation omitted). at 440-441. at 2871. Ed. United States Gypsum Co. by charging agreement. Climatemp.D. 250.Ct. Pike Indus.2d 292. Ct. not to punish conscious and calculated wrongdoing at odds with statutory proscriptions.. Ed. The criminal sanctions would be used. Balint. United States v. 1979) (bid-rigging indictment sufficient under Gypsum where intent "may be implied from a reading of the whole indictment"). 2d at 868. 57 L. 2d at 868 .) . Azzarelli Constr. 382 (N. 435 (D.S. 462 U. 2d 854 . . 438 U. Inc.Page 20 5-19 Business Crime P 19.S. Vt. reading it in its entirety. . . 301.S. Supp.S...' 438 U. United States v. at 445. 1979) . Ill. cert. denied. Ct."). Ct. In addition to the factors discussed in the text. 920 (1980) . 98 S.S.. 298 (7th Cir. 2d at 872 .2d 444... (Emphasis in original. 482 F. United States v. 438 U. nevertheless 'action undertaken with knowledge of its probable consequences and having the requisite anticompetitive effects can be a sufficient predicate for a finding of criminal liability under the antitrust laws. 447 U. 438 U. 98 S.. 728 F.S. denied. 2d at 867 . at 2876 ].2d 461 (7th Cir. the court affirmed defendants' convictions for bid-rigging in violation of the Sherman Act: Indeed. 98 S. 705 F. at 433. at 2872. Metropolitan Enters. at 2877 . 612 F. the availability of a range of nonpenal alternatives to the criminal sanctions of the Sherman Act negates the imputation of any such purpose to Congress in the instant context. 575 F. Although the word 'intent' was not expressly used. 438 U. See United States v. sufficiently charges an intent to agree.Ct. and holding that Gypsum was addressed to the sufficiency of proof before the jury and not to the sufficiency of the allegations in the indictment). (n54)Footnote 54. the indictment. aff'd. United States v.S. see. the use of criminal sanctions in such circumstances would be difficult to square with the generally accepted functions of the criminal law . 57 L. at 444. Inc. 890 (S. (n55)Footnote 55. at 2877. Supp. at 434. (n56)Footnote 56. 98 S. Ct.D. While in certain cases we have imputed a regulatory purpose to Congress in choosing to employ criminal sanctions.. 1984) (" 'charge of conspiracy to violate a criminal law has implicit in it the elements of knowledge and intent' .. This court holds that . Note that Gypsum was addressed to the adequacy of proof at trial rather than to the sufficiency of the indictment. provides the appellants with sufficient information to adequately prepare their defense . For cases dealing with the sufficiency of an indictment. Ed.. at 435.Ct.. 885..S.Ct. In United States v.g.

it is not sufficient for the government to prove that the defendants agreed to do something. (n63)Footnote 63.2d 1323.. 1991) : The district court's ruling accords with the express holdings of six other circuits. 1083 (1981) ("[w]here per se conduct is found. (n60)Footnote 60. United States v. that conspiracy cases actually involve two types of intent. Miller. See. 771 F. 598 F. 93 528. e. Inc. 1997). 811. 1979) .. (n58)Footnote 58.. 84 L.. Crim. We agree with the conclusion of the district court and the other circuits that have addressed the issue. Brown. 454 U. No. Foley. at 443 n. the government must prove that the defendants agreed to effectuate an illegal purpose. 1978). 2d 854 . United States v.2d 1219.Ct.S.S.Page 21 5-19 Business Crime P 19. 2864 .6 (2d Cir. at 2877 n. at 444 n. 1078 (1981) (distinguishing the interseller price verification discussed by the Supreme Court in Gypsum from a price-fixing conspiracy). 714-715 (4th ed. § 1. (Gypsum was a misdemeanor case. Soc'y of Indep. cert. 1046 (9th Cir. agreement itself is not illegal. Instead. This illustrates the crucial distinction between Gypsum and Gillen. the court stated the following in its instructions: . and the intimations of another.S..S.13 (4th Cir. e. United States v. 936 F. cert.g. Koppers Co. 1985) . 1979) . Tex. 599 F. six corporate and three individual defendants were convicted of conspiracy to fix real estate commissions. the intent to agree and the intent to effectuate the object of the agreement. (n65)Footnote 65. Antitrust Law Developments. 598 F. Clearly. See also United States v. 1129 (1949) . United States v. 1979) . 444 U. 1335 n.D. denied. 544 (3d Cir. 150.S. United States v. See ABA Section of Antitrust Law. cert. In International Paper. the indictment having been brought prior to the effective date of the 1974 amendments. citing United States v.2d 444. In Foley. See. Antitrust Procedures and Penalties Act. Brown.02 (n57)Footnote 57. is not illegal. cert. a finding of intent to conspire to commit the offense is sufficient. An agreement to exchange prices.20. 438 U. 449 U. as did the Supreme Court in Gypsum. International Paper Co.. Continental Bag Group.21. (n66)Footnote 66. Gillen. Foley.S. in violation of § 1 of the Sherman Act. 310 U.) . See United States v.2d 1042. See also United States v. 1706.C. cert. 15 U.21. (n59)Footnote 59.S.2d 1042. (n62)Footnote 62. Ct.C. Pub.) Accord United States v. H-78-11 and 12 (S. (n64)Footnote 64. that Gypsum does not require proof of a defendant's intent to produce anticompetitive effects where the defendant is charged with a per se violation of the Sherman Act. Gasoline Marketers of Am. 57 L. 462 (3d Cir. United States v. 840 (1979) . 1032 (1980) : It is important to note. 936 F.S.2d at 1335 . a requirement that intent go further and envision actual anti-competitive results would reopen the very questions of reasonableness which the per se rule is designed to avoid"). 444 U.2d 541. & Maintenance Co. 652 F. See also United States v. denied. §§ 1.S.g. by itself. 98 S. Ed. 296 n. 598 F. 1105 (7th Cir.S. e.. 98 S. Brighton Bldg. 2. Ct. 88 Stat. 1046 (9th Cir.2d 1101. See 438 U. denied. § 3. 603 F. 1991) . Socony-Vacuum Oil Co. denied. No. (footnote omitted).2d 290. 624 F. and 3).g. to fix prices. denied.. L. an agreement to fix prices is. 60 S. 1980) . (n61)Footnote 61. Ed.. 1043 (1980) . 1239 (9th Cir. 444 U. 1708 (1974) (current version at 15 U.2d 461 (4th Cir.) .

700 (1927) . (n69)Footnote 69. among other evidence.S. 2460 (1890) (remarks of Senator Sherman). Ed. 1604. United States.S. denied. 84 L.S.S. Ry. . it has also recognized that tying may have procompetitive justifications that make it inappropriate to condemn without considerable market analysis"). Ct. 526 U. 468 U. 1126. 601. and price-fixing (see United States v.S.S. 119 S. 5. cert. (n74)Footnote 74. (n73)Footnote 73. 5 F.S.) . (n72)Footnote 72. 632. 1. 55 L. Jury Instructions in Criminal Antitrust Cases (1976-1980). See NCAA v. 2d 545 (1958) (due to their "pernicious effect" or "lack of redeeming virtue. 663 (1911) . 2 L. (n71)Footnote 71. 956 (1983) (per curiam) (Gypsum does not "change [] the law on corporate antitrust liability for the acts of its employees"). 5 F. Ct. 402 (1986)). Ed. United States v. 405 U. 119 S.. Examples of per se violations include market allocations (see United States v.02[3].' ") (citation omitted). Ct. Ed. 396. 1993) . Antitrust Law Developments 714 (4th ed. 71 L.3d at at 669. 119 S. 652 F. 143 L. Inc. Ct. (n78)Footnote 78. (n67)Footnote 67." certain agreements are conclusively presumed unreasonable without inquiry into the harm caused or the asserted business justification). 60 S. 31 L. (n75)Footnote 75.. Ct. 514. 573 (4th Cir. Ct. American Tobacco Co. Socony-Vacuum Oil Co. United States v. however. 20 (1947)) . 596. 464 U. Co. 392. 454 U. 526 U. 273 U. Ct. 55 L. 298 (2d Cir. See generally above P 19. 711 F. 60. you may take this fact into account in determining whether or not the corporation had the required intent. at 1618 . United States.. 68 S. 78 S. California Dental Ass'n v. Koppers Co. v.2d 570. Ct..2d 1203. Board of Regents. 179. Basic Constr. See 21 Cong. (see Int'l Salt Co. 190 (1982). 92 S. (n68)Footnote 68. (n77)Footnote 77.S. p. you find that a corporation acted diligently in the promulgation. Betaseed. 356 U. 2457. 1129 (1940)) . 221 U. Ed. at 1617 (quoting P. 1215 (9th Cir. you are instructed that the mere existence of an antitrust compliance policy does not automatically mean that a corporation did not have the necessary intent.3d 658 (3d Cir. 756. Trenton Potteries Co. If. See also United States v.S. Topco Assocs. Rec.S.2d 290. 1617.S. is whether or not the corporation had an antitrust compliance policy. 104 (1984) ("while the court has spoken of a 'per se' rule against tying arrangements. 31 S. at 780. 502. v. 1083 (1981) . 47 S.. 12. 332 U. Federal Trade Comm'n. 526 U. denied. (n70)Footnote 70. Ed. at 781. ABA Section of Antitrust Law. 811. Ed. See United States v.02 One of the factors you may consider in determining the intent of each corporation. 2d 935 (1999) . 1982) (per se rule as it applies to tying arrangements " 'is exceptional in that it permits the defendant to offer justifications for undertaking the tie.S. Ed. Antitrust Law P 1507. 31 S. United States. cert. v. Areeda. and enforcement of an antitrust compliance program in an active good faith effort to ensure that the employees would abide by the law.. 392. See ABA Section of Antitrust Law. 1613. 85. 397-98. v. United States v. 1997). dissemination.. Northern Pac.Page 22 5-19 Business Crime P 19. 2d 515 (1972)) . In this regard. 681 F. 92 L. 377. 150. 310 U. U&I Inc. 106. Ed. 619 (1911) . 1.) . Ct. Ct. 221 U. (n76)Footnote 76.S. 223. See Standard Oil Co. Brown University.

Page 23 5-19 Business Crime P 19. Ed. 1979) . (n86)Footnote 86. at 1236 . The sufficiency of fair notice of the acts proscribed by a statute must be examined in the context of the conduct with which a defendant is charged.S. (CCH) P 61. United States Gypsum Co. United States v.g. 2d 854 (1978) . United States v.2d 1219.S. Ed. The indictment charges [the defendant] with price-fixing. 229 U." 428 U. Ohio 1912) . 2864. 119 S. See. at 442 n. 1985) : [The defendant] argues that section one is unconstitutionally vague because it fails to provide fair notice of the conduct which it proscribes.D. aff'd 598 F. 98 S.S. 98 S. 186 F. Although [the defendant] concedes that the constitutionality of section one was sustained against vagueness challenges shortly after its enactment. 33 S. § 3. 204 F.. 93-528. The Gypsum indictments were returned prior to the effective date of the 1974 amendments. (4th Cir. [The defendant's] contention is frivolous. 222 F. at 2876 n. 635 . In Gypsum the focus of the government's case (and also of the Supreme Court's opinion) was on interseller price verification--a practice not deemed sufficiently egregious to constitute a per se violation. denied. (n87)Footnote 87. at 781. Co. at 1613 . 57 L. Ct. 114-115 (W. at 1235 . 1912) . Patterson. No. 229 U. New Departure Mfg. took note of the severity of the new sanctions. (n82)Footnote 82. 697. at 376. Ed.18. Ct.C. Ct. 1909) . 592. 1977). (n81)Footnote 81. 438 U.D.S.S. rev'd on other grounds. 578. at 378. Nash v. 57 L. 57 L. at 782. 1913) . Ed. thus resulting in application of the earlier misdemeanor penalty sections.D. Antitrust Procedures and Penalties Act. 2d at 873 n. United States. Pub. See also United States v. Because price-fixing has repeatedly been held to be per se illegal under the Sherman Act. Ct.678 (D.N. (n83)Footnote 83. 229 U. 201 F. 57 L. Ga. 422.S. Ct.Y. Ed.g. Foley.S. Miller.S. 1708 (1974) (codified at 15 U. e. 526 U. The means alleged included price-fixing. cert.S. United States v.S. he urges us to revisit the issue under contemporary due process standards in light of a 1974 amendment making violation of the statute a felony rather than a misdemeanor. 1232 (1913) . 444 U. however. Md. at 771. United States v. 599 (6th Cir. 33 S.. 583-584 (D.2d 1323. 593 (S. L. at 1235 . 57 L. 771 F.02 (n79)Footnote 79. 373. A defendant cannot challenge a statute on the ground that it may not give fair notice that conduct other than that which he is charged is forbidden. 1225 (9th Cir. Ed. See. at 377. 780.. §§ 1-3). 57 L. The Supreme Court. (n85)Footnote 85. denied.. stating that they provided "further support" for the Court's "conclusion that the Sherman Act should not be construed as creating strict-liability crimes. 33 S. 238 U. 107. 1915) . (n80)Footnote 80. United States v. (n84)Footnote 84. 229 U. Mass. 195 F. Ct. 33 S. . [the defendant] could not have had any reasonable doubt that his conduct violated section one. 88 Stat. cert. United States v. 1043 (1980) . 706-707 (S. e.18 .Ct.18. The Nash defendants were convicted under the Sherman Act for conspiring to restrain trade in and to monopolize the turpentine trade. at 781. American Naval Stores Co. Winslow.. [1977-2] Trade Cas.

63 S. Sherrill. 544. 317 U. 2d 1141 (1976) (no antitrust immunity conferred when a state agency passively accepted a public utility's tariffs). L. 1989. actions of Arizona Supreme Court. Rev. Ed. 568 (1963) . 2d 24 (1985) (Wisconsin city's tying of sewage treatment and transportation services exempt from federal antitrust scrutiny because clearly authorized by Wisconsin). 95 S. 63 L. Goldfarb v. 471 U.S. v. Ed.S.S. 2d 590 (1984) (Arizona Supreme Court Committee of Examinations and Admissions did not violate the Sherman Act when it refused the plaintiff admission to the bar. 2d 233 (1980) (California law authorizing vertical resale price maintenance for wine preempted by Sherman Act because of insufficient state involvement in price-setting). e. 403. 419 U. at 326 .S.S. 466 U. 316. not justified by state interest sufficient to override Sherman Act). See Emilie F. 93 F. Ed.02 (n88)Footnote 88. 87 L. 714. reprinted in 57 Antitrust L. 85 L. 428 U. Virginia State Bar. see also Donald I. 3110. 372 U. 479 U. Ct. 2d 36 (1985) (joint ratemaking by common carriers exempt from federal antitrust laws where authorized by state and subject to state Public Service Commission approval). at 326-327 . 100 S. 594. 433 U. Cantor v. 773. 96 S. 13 Suffolk U. 1284 (1979). . at 2874-2876. 713 (1975) . Rule. 937. Ed. 104 S. Ed. Rule. cert. 85 L. 1716-1721.S. 898 (1977). 99 S. Ct. Cantor.S. Ed.S. making them state authorized actions). New Motor Vehicle Bd. Ct. 36. Baker. Ed. 46 L. Is the Sherman Act Unconstitutionally Vague as a Criminal Statute? A Re-evaluation After Gypsum. 315 (1943) .3d 1293. California Retail Liquor Dealers Ass'n v. 1998 Annual Review of Antitrust Law Developments 369-377 (1999). 44 L. 471 U. 93 L. (n93)Footnote 93. 233 (1975) . 2d 572 (1975) (fee schedules enforced by state bar association not immune from antitrust attack where not mandated by the ethical standards adopted by the Virginia Supreme Court). 520 U. Ct. 34. Athanasoulis. Assistant Attorney General Antitrust Division (1988). Note.g. City of Eau Claire. at 314. 2d 810 (1977) (Arizona's rules against lawyer advertising immune from Sherman Act challenge). at 352. 2d 561. But see California Retail Liquor Dealers Ass'n v. Inc. Brown Revisited: The State Action Doctrine After Goldfarb. 341. 438 U. Southern Motor Carriers Rate Conference v. 710. designed to protect small retailers. 38-47. and thus reduced the number of competing attorneys. 2d at 870-873 . 307. Duffy. 97.S. 100 S. United States v.S. 58 L. Ed. 1996) . See. 29.. 97. United States v. Ed. 2691.S. 107 S. Charles F. (n90)Footnote 90. Ct. 421 U. 2d 667 (1987) (New York state law requiring liquor retailers to charge at least 112% of "posted" wholesaleprice. 63 S. at 352.g. v. Ed. 257. 558. Ct. 137 F. Midcal Aluminum. denied. 105 S. 96. Florida Residential Property and Casualty JointUnderwriting Ass'n. (n97)Footnote 97. Bankers Ins. Ed. 87 L. 1296-1297 (11th Cir. Ed. Crosby v. Ct.3d 1515. Fox Co. 445 U. (n96)Footnote 96. (n91)Footnote 91. 423 U. 2d 361 (1978) (California program requiring state approval of the location of new automobile dealerships immune from antitrust liability).L. 445 U. 105. 324 Liquor Corp. 48. United States v. Hoover v. Ed. 87 L. 720. To Indict or Not to Indict: Prosecutorial Discretion in Sherman Act Enforcement. 261 (1988). 49 L. 2004. Corp. 77 Colum. Ct. Brown. 63 Cornell L. at 314. Hospital Auth. in essence. Detroit Edison Co.S. Ct. Rev.. at 314. 60 Minutes With Charles F. v. 80 L. Ronwin. 1116 (1997) (state action immunity for county hospital authority created by state). (n94)Footnote 94. Ed. Rev. (n92)Footnote 92. Co. 95 S. 727-29. 87. at 437-443. 53 L. Ct. Ed. See generally. 92. Mazurie. 317 U.S.J. 1713. Ct.S.. Parker v. 105 S.. 550. actions of Committee were.S. Ct. 579. at 326 . Ed. Note.S.. Midcal Aluminum. National Dairy Prods. 63 S. 599. 319. 87 L. State Bar of Arizona. Ct. 1721. Town of Hallie v. 57 L. See. Ed. 343-351. and Bates. 350. 96 S. 97 S. Stephen C. 63 S. 1518-1525 (11th Cir. 9 L. 405 (1979).S. 439 U. Ct. Ct. 317 U. Ct. Orrin W. 98 S. e. of Valdosta and Lowndes County. 362. Ct. 581. 2d 706. 1998) (per curiam) (state action immunity where state statute created association of insurance companies and forced them to insure privately uninsurable individuals). Bates v. at 351. 42 L.S. 335. (n95)Footnote 95. ABA Antitrust Section.S. Parker v. 317 U. 83 S. Ct. Powell. United States.Page 24 5-19 Business Crime P 19.. (n89)Footnote 89. 2d 228.

§ 1(e). 100 S. at 114. instituted for the purposes of mutual help. Artists & Assoc. Ed. Act of Feb. No. tit. § 41309(b)). 731. Ct. 389. 105.S. 85-726. 116 S. Ed.S. 445 U. 96-192. IV. Inc. Pub. 2112-2113. 47. No. 92 Stat.C. 1720. 2d 364 (1978) (opinion of Brennan.C. But cf. amended by Act of July 5. 1914. The Court in California Retail Liquor Dealers further held that the twenty-first amendment provided no shelter for the violation of the Sherman Act created by the State's wine-pricing program. 68 L. No. 15. Ct. 135 L. § 412(a). 1978. Pub. 38 Stat. 15. L. 410. 108 Stat. 1958. 1958. § 28(c). 445 U. Pub.A. 1533. No. Ed. 629 F. 95-504. 98 Stat. Ct. § 17 provides in full as follows: The labor of a human being is not a commodity or article of commerce. Act of Feb. Act of Aug. 1129 (current version at 49 U. Pub. 445 U. Pub. 2116. 92 Stat. 435 U.S. § 6. 810-811. 97.8 (7th Cir. agricultural. under the antitrust laws. L. 445 U. 23. Ct. Pub. 15. 63 L. 100 S.Page 25 5-19 Business Crime P 19. No.. § 35) (granting immunity from damages under §§ 4. 108 Stat. Act of Aug. 1958..S. 96-192.A. L. 943. Ed. § 11. 100 S. Pro Football. 1994. L. 24. 72 Stat. As that phrase is defined in § 1 of the Clayton Act (current version at 15 U. Louisiana Power & Light Co. 98-544. § 27. 770. 103-272. Ct.02 937. 55 L. amended by Act of July 5. 24.S. Inc. Ed. 1731. § 412(a). 518 U. L. 101 S. 2102. § 1(e). 453 n.S. See Williams v. City of Eau Claire. (n103)Footnote 103. (n102)Footnote 102. Act of Aug. IV.C.A. § 41309(a)). 2d at 248-249 . Ed. 65 S.S. Inc.C. See Allen-Bradley Co. Ct. § 41308). Pub. 1128 (current version at 49 U. 63 L. 98 S. L. 63 L. No. tit. 1939 (1945) .C. 108 Stat. (n100)Footnote 100. v. 243 (1980) (n99)Footnote 99. or horticultural organizations. L. Ed.S. 1729. 943.C. 2d 233. No.. See also Brown v.S.S. restated by Act of Oct. Ct. 72 Stat. Joseph Hosp. § 1(e). Midcal Aluminum. 23.S. No. 325 U. 15 U. or the members thereof. 731. § 11. 1129 (current version at 49 U. 24. 1978. § 12). 451 U. (n98)Footnote 98. be held or construed to be illegal combinations or conspiracies in restraint of trade. 704. Pub. § 28(c). 2750 (1984) (codified at 15 U. (n104)Footnote 104. 92 Stat. Actors' Equity Ass'n. 15. 1713. L. (n101)Footnote 101. 1980. 937. 731 (current version at 15 U. 722. (n105)Footnote 105. No. L. and not having capital stock or conducted for profit.S. 85 L. Pub.. 1980. 1994. added to by Act of Oct. 1994. amended by Act of July 5. No. (n106)Footnote 106.. (b). at 943-944. or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof. 103-272.S. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor. added to by Act of Oct. 85-726.S.).2d 448. nor shall such organizations. No. 89 L. Pub. Local Government Antitrust Act of 1984. 231. 34. § 414.C. 1729. 2d 233. 95-504. Pub. 39. No. Ed. 36. 63 L. Act of Feb. 1123.S. § 3. § 17). L. 94 Stat. 2d 558 (1981) (labor union's regulation regarding franchise fees was not exempt because union could not establish that its legitimate interests would be affected absent regulation). 39. 4A and 4C of Clayton Act to local governments and officials who are acting in their official capacity). 85-726. Ct. 2d 521 (1996) . at 948. 103-272. L. 2d 24 (1985) ( "active supervision" is unnecessary where actor is municipality). Pub. 96-192. v. at 106. Local 3. 72 Stat. 95-504. 323. 1980) . 94 Stat. 1980.A. Ed. Town of Hallie v. 2d at 243 . St. L. California Retail Liquor Dealers Ass'n v. § 30(a). No. 797. 23. Act of Oct. H. (n107)Footnote 107. 105 S. L. Pub. 94 Stat. J. (b). 243 (1980) (citing City of Lafayette v. 1978. ch.

Dealers. 45 L. 117.]" the court noted that "[i]mplicit repeal of the antitrust laws is not favored. The Court held that Congress. Ed. Ware. Ed. 357. 38 L. at 2612. at 720. 389 (1981) (quoting Silver v. Gordon v.D. Ed.S.S. Gordon v. Sec.. concurring).S. Ct. . 2008) (analyzing Newspaper Preservation Act. 321. Ct. "The Court has never held . 428 F. 1715. 47 S. Fenner & Smith. 341. 15 U. indictments dismissed on other grounds). The Court held that the SEC's regulatory authority was so pervasive as to confer an implied immunity on the alleged horizontal conspiracy to prevent a secondary market in mutual fund shares. United States v. 378. 2598. Ct. Ed. (n108)Footnote 108. (n111)Footnote 111. Ct. 95 S." Gordon v.S. Trenton Potteries Co. Ed. 422 U. 2d at 479 . 452 U.S. 2d at 505 . W. at 2615.02 ("nonstatutory" antitrust exemption implicit in U.D. 95 S.36. 374 U. 1734-1735.S. 389. 414 U. 96 S. Dealers. 2d 859 (S. v.S. 3110. that the antitrust laws are inapplicable to anticompetitive conduct simply because a federal agency has jurisdiction over the activities of one or more of the defendants. 373 U. 45 L. 422 U.2d 676. 95 S. New York Stock Exch. 95 S. The Court concluded that enforcement of the antitrust laws "would preclude and prevent the operation of the Exchange Act as intended by Congress and as effectuated through SEC regulatory activity.S. Supp. 719 20. labor laws shields from antitrust attack agreement among several employers bargaining together to implement after impasse terms of their last best good-faith wage offer). New York Stock Exch. 45 L. 692.36. Va.. 83 S. 10 L. 94 S.S. The Court identified two factors as dispositive: (1) the SEC's supervisory power was granted seven years after the Court had found that price-fixing is a per se violation of the Sherman Act (see United States v. of Sec. 694. 45 L. Merrill Lynch. 428 U. The mere existence of federal regulatory authority over a particular industry is not sufficient to imply antitrust immunity. the Supreme Court held that vertical restrictions on secondary market activities designed to maintain prices in brokerage transactions of mutual funds were exactly the type of competitive restraint that Congress thought necessary when it enacted the Investment Company Act of 1940. 579. 71 L. 2d at 484 . Tex.. 95 S. 586-89 (W. Braniff Airways. Supp. a group of investors challenged the system of fixed stock commission rates as violative of the antitrust laws. Detroit Edison Co.. 659. Ed. (n112)Footnote 112. 485 (1975) (Stewart. noting that the Securities Exchange Commission (SEC) had sanctioned the system. Ed. at 2443.S. 95 S. In National Ass'n of Secs. at 682. Inc. Ct. v. at 683. 2616. Nat'l Ass'n. 392. 2427. Ct. New York Stock Exch. Ct. Ct.S. 15 U. (n110)Footnote 110. 126. 2d at 479 (quoting United States v. 694-96 (5th Cir. at 691. Inc. 2d 915. 422 U.. 596 n. 2d 1141 (1976) . 757 F. as narrow exemption from antitrust laws). and (2) the SEC actively supervised and approved the fixing of commission rates over a period of years. Dealers.. Ed. 422 U. Ed. Philadelphia Nat'l Bank. 422 U. quoted in Cantor v. J. National Ass'n of Secs." Gordon.. See United States v. and is justified only by a clear showing of repugnancy between the antitrust laws and the regulatory system"). particularly in view of the SEC's consistent approval of agreements related to the subject matter of the antitrust action.Page 26 5-19 Business Crime P 19. 350-351. United States v. 2d 348 (1973) . In Gordon. 729-730.S. § 80a 1 et seq. (n109)Footnote 109. Ct. Blue Cross of Kansas City. 273 U. and Gerontology Center v. 937-938 (1963)) .. rejected the challenge. Ed. 2d 389 (1963)) . 49 L. intended to leave supervision of the fixing of reasonable rates of commission to the SEC and thusimpliedly immunized the practice from antitrust challenge. Inc..C. Ct.. Daily Gazette Co. in enacting the Securities Exchange Act.. 83 S. 10 L. Ed. Dealers. National Ass'n of Secs.S. 377. The Supreme Court. 45 L. 3120. 579. n. Ct. 1246.S. New York Stock Exch.C. 2d 486 (1975) . 2d 463. Pierce.S. 1985) (although holding that "Congress necessarily repealed the antitrust laws insofar as those laws condemn actions required to be undertaken in the effectuation of NASD disciplinary process [. National Gerimedical Hosp. 700 [1927]) . 422 U. 567 F. See generally United States v. 45 L.S. 383. 1977) (Sherman Act indictments against certificated interstate airline carriers. see also Austin Mun. §§ 1801-1804. at 2611.

S. (n116)Footnote 116.02 (n113)Footnote 113. Interestingly. of America. (n115)Footnote 115.2d 414. Justice Holmes elaborated upon the continuing nature of a conspiracy in restraint of trade: [W]hen the plot contemplates bringing to pass a continuous result that will not continue without the continuous co-operation of the conspirators to keep it up. v. See 15 U.C. 124. That as such it may have continuation in time is shown by the rule that an overt act of one partner may be the act of all without any new agreement specifically directed to that act. 62-63 (S. Otter Tail Power Co. (n119)Footnote 119.. 321 (national banking).S. British Airways Plc. rev'd in part on other grounds. 757 F. 1168 (1910) . World Airways. cert. Gordon v. pursuant to section 4B of the Clayton Act. 93 S. . 95 S. 422 U.C. and will continue their combined efforts to drive the competitor out until they succeed. 1994) . Ct. 422 U. 444 U. Hughes Tool Co.S.. United States Gypsum Co.S. rather than the agreement itself.Y. 417 n. The contract is instantaneous. International Travel Arrangers v.S. denied.S. Sec. Philadelphia Nat'l Bank. 1989) . Supp. 54 L. v. A conspiracy is constituted by an agreement. 374 U. United States. Austin Mun. 1979) . 723 F. rather than to call it a single one. 358 U. the partnership may endure as one and the same partnership for years.. (n114)Footnote 114. Supp. cert. § 3282 provides in full as follows: Except as otherwise expressly provided by law. although constituted by a contract. but it is the result of the agreement. 600 F. unless the indictment is found or the information is instituted within five years next after such offense shall have been committed. aff'd in part.S. section 5(i) of the Clayton Act provides that the commencement of a criminal or civil government antitrust suit generally tolls the statute of limitations as to private actions for a one year period following conclusion of the government suit. Inc. Inc. 141 (D. is not the contract. Hughes has been cited favorably in two recent district court opinions. Ed.S. United States v. 932 (1993) . 409 U. 341 (securities). 83 S. Inc. A conspiracy in restraint of trade is different from and more than a contract in restraint of trade. 1022. § 15b (1988). 2d 359 (1973) (generation and transmission of electric power). Ct. 457. 422 U. Ct. § 16(i) (1988). Inc. 991 F. Pan Am. Radio Corp. 2d 577 (1973) . Dealers. 371 U. Minn. United States Gypsum Co.N. 334. 2d 354 (1959) (national broadcasting). 31 S. Take the present case.C.. private antitrust actions must be brought within a four year period. 9 L. NWA. v. 647. 35 L. e.2d 414 . Silver v. In contrast. 18 U. Ed. New York Stock Exch. 15 U. at 2614. United States v. v. 872 F.2d 676 . Ed.S.S.. it is true.. New York Stock Exch. 884 (1979) . Nat'l Ass'n of Sec.. Ct.g. 373 U. and there is such continuous co-operation. A conspiracy is a partnership in criminal purposes.S. 363. it is a perversion of natural thought and of natural language to call such continuous co-operation a cinematographic series of distinct conspiracies. 659 . (n117)Footnote 117.S. United States v. v. Ed. United States v. Ed. not capital. New York Stock Exch. 218 U. 2d at 482 . Gordon v. 296. 510 U. United States v.S. denied. 52. Kissel. See Virgin Atlantic Airways Ltd.S. See.D. See United States v. tried. If they do continue such efforts in pursuance of the plan.Page 27 5-19 Business Crime P 19.2d 1389 (8th Cir. Trans World Airlines. 410 U. United States. at 688. just as a partnership. the conspiracy continues up to the time of abandonment or success. Inc. National Ass'n of Sec.. but is a result of it. 366.S. 476.2 (3d Cir. 600 F. Dealers. 2d 325 (1963) . Ct. Writing for the Court in Kissel. (n118)Footnote 118. 694 . 79 S. Ct. Ed. A conspiracy to restrain or monopolize trade by improperly excluding a competitor from business contemplates that the conspirators will remain in business. 93 S.) . 34 L.. or punished for any offense. 45 L. 3 L. 601. no person shall be prosecuted.

Thus. maintain and stabilize prices of gypsum products. Ct. 438 U. 98 S. cert. The Gypsum defendants had requested this charge: Because the gist of the offense charged is a continuing agreement to raise. United States Gypsum Co. at 126. 1977) (emphasis omitted). the evidence must show that the defendant took some definite.13 (3d Cir. 907 F. Const. or he must make disclosures of the illegal scheme to law enforcement officials. United States v. at 464. do beyond the reasonable intendment of the common agreement or understanding. 488. U. (n121)Footnote 121. 57 L. Mere inaction would not be enough to demonstrate abandonment. Ct. (n124)Footnote 124. Ed. 2d at 886 (footnote omitted). 522 U. 484 U. (n123)Footnote 123. (n122)Footnote 122. denied. (n120)Footnote 120. at 2887. 1968. Ct.) cert. 98 S. 103-104. it is essential for you to determine what kind of agreement or understanding.S.2d at 418 . United States Gypsum Co. 422. 98 S.S. v.2d 270 (3d Cir. 600 F. United States v.S. 2d at 886 (emphasis in original). Ass'n. 2d 854. 118 S. decisive step. V.2d 115. 438 U. if any.S. 438 U. a defendant either must have affirmatively notified each other member of the conspiracy he will no longer participate in the undertaking so they understand they can no longer expect his participation or acquiescence. Ed. (n125)Footnote 125. from the evidence. 57 L. 851 (1987) (finding that each new resolution passed by dentists in furtherance of a group boycott restarted the statute of limitations). 936 (1991) . 438 U. 500 (5th Cir. at 2887. at 2887. at 463-464. 57 L. of Pa. you must find. if any. Ed. Note that under a theory of continuing conspiracy acts occurring prior to the statutory period can properly be admitted into evidence to show the existence and continuance of the conspiracy. at 607-608. 128-129 n. at 1178-1179 . 438 U. Ed. Ct.02 218 U. 2d 450 (1997) . 2864. once a defendant is shown to have joined a conspiracy. United States Gypsum Co.. amend.. Ct. To withdraw. 54 L.S.S. 98 S. 2887.S. Ed. 57 L. existed as to each defendant. Ct.Page 28 5-19 Business Crime P 19. No defendant is to be held responsible for what some of the alleged conspirators.S. Hudson. 139 L. United States v. Ct. 31 S. 815 F.S. to which you may find him or it a party. 422. United States v. Each defendant is chargeable with the acts of his or its fellow defendants and alleged co-conspirators only if the acts are done in furtherance of the joint venture as he or it understood it. 495. at 464. Ed. 2d 854 (1978) . 2d at 886 (footnote omitted).. Ed. 57 L. 93. See also Pennsylvania Dental Ass'n. indicating a complete disassociation from the unlawful enterprise. 2864. 1990) . See also United States v. that he or it took some affirmative action to disavow or defeat its purpose. 98 S.S. in order for you to find he abandoned the conspiracy. 464-465. unknown to the rest. (n126)Footnote 126. Medical Serv. 499 U. MMR Corp (LA). The district court had charged the jury in the following terms: In order to find that a defendant abandoned or withdrew from a conspiracy prior to December 27. fix. 886 (1978) (citations omitted).2d 489. denied.. 550 F.

. cert. i.S.3d 813. 113 S. The "same conduct" test provides that.Page 29 5-19 Business Crime P 19.S. Therefore.S. 729. Ct. (n129)Footnote 129. 448 U. 100 S. 2d 65 (1978) (Double Jeopardy Clause did not preclude government appeal of district court order. see also United States v. at 2085 . 688. (n130)Footnote 130. (n132)Footnote 132. 431 U. United States. at 510. 242. Downum v. Forman. Hunter. Wade v. 684. 2d 651 [1977]) . Scott. 816 (2d Cir. 88 F. 2856. but also the "same conduct" test. overruled Grady v. Ward.2d 969. granting defense motion for dismissal because of prosecutorial delay).S. Ct. 437 U.S. when in fact and law the two are but fragments of a single scheme. (2) There are overlapping . Ct. That court. 2d 548 (1990) . 734.3d 766. entered after evidence was closed. with the following relevant exceptions. Ct. denied. 43 L. 2636. 113 S. (n131)Footnote 131.S.3d 881. Gilliam v. Ed.. 721. 1996) . the Court decided to overrule Grady by holding that subsequent prosecutions need not pass the "same conduct" test to avoid the double jeopardy bar. 2251. United States v. Foster. After the Supreme Court reversed defendants' convictions because of errors in the district court's jury instructions ( 438 U. Ct. 52 L. defendants took an immediate appeal to the Third Circuit. 400 U. Corbin. 336 U. 125 L.S. Ed. 444 U. In addition to reiterating the "same elements" test.S. 495 U.13 (4th Cir. 2d 1 (1978) (Double Jeopardy Clause precludes retrial where conviction was reversed because of insufficiency of evidence). Ct. the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted. Burks v. "if. the Court had held that when a defendant is punished for two offenses.) . 651. Ed. United States. Ed." a second prosecution may not go forward. 974 (1949) . 975 (10th Cir.2d 414 (3d Cir. Isom. 105 F. 2246. United States v. 2034. Podde. 2d 615 (1998) . 10 L. 2d 265.g. e. 1033. Ed. Ed. 141 L. 923 (11th Cir. 97 S. denied. 524 U. Proceeding under the collateral order exception to the final judgment rule (see Abney v.S. 1996) . 2d 854 [1978]) . however. 768-769 (6th Cir.S. United States. 75 F. a Missouri conspiracy and a Kansas conspiracy. 834. contending that the evidence introduced at the first trial was insufficient to support the convictions. Ed. 93 L. 893 n. 1055. cert.S. ten corporate and seventeen individual defendants were named in Missouri and not in Kansas. Ed. 377. 57 L. Cf. Ed. California. 110 S. Ct. The indictments in Kansas and Missouri are in some respects identical. Monge v. 98 S. 113 S. 2d 100 (1963) . Ed. Ct. 600 F. to establish an essential element of the offense charged in the prosecution. The application of Burks in an antitrust context can be seen in United States v.e. 57 L. 829 (1970) : On the proposition that Wilshire and others were convicted in a federal court for participation in an asphalt conspiracy in Missouri. at 2860 (citations omitted).. 372 U. Ed. United States Gypsum Co. 95 S. defendants moved the district court for judgments of acquittal.3d 920. Appellant's basic plea is that the government is attempting to splinter a single conspiracy into two parts. Ct." Dixon. 1999) (citing Dixon). 118 S. 1997) . Dixon. Their motion was denied by the district court. United States. Ct. 388. 437 U. United States v. 508. 180 F. 2084.S. affirmed the district court. 83 S. 98 S. 422. however. Ct. 509 U.S. 57 L.) . the Court in Dixon. In Grady. 1062. Ct. 2849.02 (citation omitted) (reaffirming United States v. Ct. it is contended that the prosecution here twice places Wilshire in jeopardy. 495 U. 1. 420 U. 110 S. 427 F.S. the Court held that the "same conduct" test was "wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy. 2141. two were named in Kansas and not in Missouri. 2864.. 65 L. See United States v. Wilshire Oil Co. Ct. the second offense must satisfy not only the "same elements" test. United States v. 2187. 109 L. See. 2d 742 (1980)) . (1) Different parties are named in each: there are eight corporations common to both. 275 (1975) . 884 (1979) . at 2860 . (n127)Footnote 127. 2d 556 (1993) (test is referred to as "same elements" test and "Blockburger" test). 98 S. See Serfass v. 82. In Dixon. 69 S. (n128)Footnote 128.

666.. See e. Moore. 706 F.") (n139)Footnote 139. Stat. (n136)Footnote 136. 359 U. 284 (1921) . denied. as the defendants did. 313.. and should be made by the jury). Maryland. Ed. Yonkers Contracting Co. 5 L. Ed. Ill. 3 L. 740. 427 F. United States v. 427 F. an inference of multiple conspiracies rather than a single conspiracy was permissible [. 66 L. 42 S. Benton v.S. Wheeler. Ed. 314 (1922) . 729 F. 2d 729 (1959) . United States v. 819 (1986) ("classif[ying] as a legal issue. 1283 (10th Cir. cert. 260 U.2d at 977 .. 98 S. 740.' " *** (n133)Footnote 133.]" and finding that separate indictments for bid rigging at different steel mills was permissible where each was a separate market).2d 1123.g.S. Ct. The Tenth Circuit concluded its analysis in Wilshire by affirming defendant's conviction. 114. Ed. Supp. as they are proved in this record. 141. Law §§ 40. ch. (n134)Footnote 134. Co. of the Federal Anti-Trust Statute. American Column & Lumber Co. 89 S. 257 U. Genuine competitors do not make daily. Rev. 79 S. Code § 16755 (1987 & Supp. 784. 1989) (the question whether there is a single conspiracy or multiple conspiracies is one of fact. the question whether .2d 1278.D. The American Column Court emphasized that. Proc.. See. Sargent Elec.S. (n140)Footnote 140. § 542.S.2d at 976 . 377. Cal.S. 1995). Code Ann.30 (1995). 2056. Ohio Rev. Ed. (5 Wheat. Ct. 43 S. See also United States v. 1079. Rev. But cf.S. Ill. Gen. and monthly reports of the minutest details of their business to their rivals. as was done here.. 377. Law § 341 (1988). Ct.Y. 1984) (single conspiracy). Lanza.) 1.S. it was looking to the intrinsically anti-competitive nature of defendants' scheme rather than to its outward trappings: To call the activities of the defendants. v. subject to plenary review. they do not contract.20 to 40. Crim. 23 L. 67 L. e. maintain. United States v. Fla. United States. is plainly a misleading misnomer. 19 (1820) . § 10/6 (1995). *** the Kansas indictment charged the co-conspirators and defendants with conspiring 'to fix. and establish non-competitive prices for the sale of liquid asphalt to the State of Kansas.g. at the time is a defendant with regard to any current pending complaint.) . weekly. 298-99 (S. 18 U.g. 2d 707 (1969) .Y. Bus. 479 U. § 1331. Abbate v.N.02 but different dates of existence: in Missouri it was from 1960-1963 and in Kansas from 1959-1965. or alleged violation. 395 U. (n135)Footnote 135. Beachner Constr. (n138)Footnote 138.21 (1988). Ct. (n137)Footnote 137. 435 U. information or indictment filed by the United States for violation.. & Prof. ch. 785 F.. 2d 303 (1978) . N. Co. Houston v. 296. an 'Open Competition Plan' of action. Stat. N. United States v. 187. 1126 (3d Cir.99 (1994). to submit their books to the discretionary audit and their stocks to the discretionary inspection of their rivals for the . in arriving at its holding.Y. The court reasoned that the Kansas case involved a plot with a "distinctively separate conspiratorial purpose" from that which was at issue in the earlier proceedings in Missouri. 55 L. Stat. Ed.. § 10/6 (3) (1995) ("The Attorney General shall not commence prosecutions under this [Antitrust] Act against any defendant who. (3) The offenses charged vary: the Missouri indictment charged that the defendants and co-conspirators acted to 'suppress and eliminate competition in the sale of liquid asphalt to the State of Missouri'. See. e.Page 30 5-19 Business Crime P 19. Bus. Ct. United States.

578. but upon what experience has shown to be the more potent and dependable restraints. and as. 1093 (1925) . 69 L. 42 S.. -. it promises to be. The 'Plan' is. a 'new form of competition. and to rely for maintenance of concerted action in both respects not upon fines and forfeitures. express or implied. Ct. Maple Flooring Ass'n v.S. 563. Ct. cannot conceal the fact that the fundamental purpose of the 'Plan' was to procure 'harmonious' individual action among a large number of naturally competing dealers with respect to the volume of production and prices. which would promptly expose to his associates any disposition in any member to deviate fromthe tacit understanding that all were to act together under the subtle direction of a single interpreter of their common purposes. Ed. in his specially and confidentially informed judgment. and obtain from him a 'harmonized' estimate of the market as it is and as. United States. or because some voluminous reports were transmitted to the Department of Justice. 371. the volume of production. 45 S. but is so clearly that of men united in an agreement. United States v. that. 257 U.cautiously reinforced by many and elaborate reports. would be for this court to confess itself blinded by words and forms to realities which men in general very plainly see and understand and condemn as an old evil in a new dress and with a new name. In Maple Flooring. as they did. To pronounce such abnormal conduct on the part of 365 natural competitors. (n142)Footnote 142. as it so plainly is. 43 S. and in their expressed purposes as to what they intended to do. as we have seen that it is.' and not an old form of combination in restraint of trade. 66 L. the Court held as follows: We decide only that trade associations or combinations of persons or corporations which openly and fairly gather and disseminate information as to the cost of their product. at 120-121. and who. 268 U. To call it open competition because the meetings were nominally open to the public. meet and discuss such information and statistics without. as evidenced in the minute reports of what they had done. . essentially. however. jointly employed.S. American Linseed Oil Co. to act together and pursue a common purpose under a common guide. controlling one third of the trade of the country in an article of prime necessity. do not thereby engage in unlawful restraint of commerce. the actual price which the product has brought in past transactions. 262 U. as in earlier days. without having any specific agreement with respect to them. 67 L. or because no specific agreement to restrict trade or fix prices is proved. at 295 . that conclusion must inevitably have been inferred from the facts which were proved. of business honor and social penalties.02 purpose of successfully competing with them. 1035 (1923) . therefore. at 410-411. approximate cost of transportation from the principal point of shipment to the points of consumption. (n141)Footnote 141. 607. another civil action in which the government sought to halt the activities of a trade association. reaching or attempting to reach any agreement or any concerted action with respect to prices or production or restraining competition. a direct restraint upon that commerce. simply an expansion of the gentleman's agreement of former days. Ed. Ed.Page 31 5-19 Business Crime P 19. if it did not stand confessed a combination to restrict production and increase prices in interstate commerce. Ct. skilfully devised to evade the law. American Linseed was a civil action in which the government sought injunctive relief against an industry-wide "exchange" through which subscribing manufacturers could obtain detailed information concerning the affairs of others doing like business. This is not the conduct of competitors. as did these defendants. stocks of merchandise on hand.S. and they do not submit the details of their business to the analysis of an expert.

Ct. United States v. 2d 526. 971. 1977) . 57 L. 181 82 (10th Cir. 2864. Container Corp. Ed.. 268 U. Ct. Instead. Co." (The full text of these sections is reproduced below App. 69 L.g. as we noted earlier.D. 45 S. 324 U. United States v. Section 2(b) (current version at 15 U. 438 U. at 586. (n146)Footnote 146. aff'd on other grounds. (n148)Footnote 148. it is unlikely that the same seller will freely inform its competitor of the details of the concession so that it can be promptly matched and diffused. at 2882-2884.] Thus. 1971) . P 19E). Ct. Wall Prods.S. 550 F.S.S. National Gypsum Co. Ed. at 455-457. The Court added: While casual reliance on uncorroborated reports of buyers or sales representativeswithout further investigation may not. 57 L. See. (n147)Footnote 147.02 286 U. (n144)Footnote 144. Both economic theory and common human experience suggest that interseller verification -. 89 L. other competitors are likely to follow and any advantage to the initiator is lost in the process. 511. 324 U. 393 U. Ct. at 453. 1320 (1945)] indicates that direct discussions of price between competitors are required. 89 S. 65 S. Cal. 98 S. 2d 854 (1978) . 422. United States. Ed. 422. Belliston v. at 2881. Inc. but careful examination reveals serious problems with the practice. v. Ed.S. or the services or facilities furnished by a competitor. 586. FTC. resort to interseller verification as a means of checking the buyer's reliability seems a possible solution to the seller's plight. [Citations omitted. 98 S. 69 L. United States v. 312-315 (N.S. 45 S.C. 89 L. United States Gypsum Co. Protective Ass'n v. (n143)Footnote 143. Staley Mfg. § 13 [a]) prohibits sellers from discriminating in price between different purchasers of the same commodity.C. 1972) . Thus the defense may be rendered unavailable since unanswered questions about the reliability of a buyer's representations may well be inconsistent with a good-faith belief that a competing offer had in fact been made. Ct.2d 175. at 586.S. Ed. As an abstract proposition. Cement Mfrs. when the terms of the concession are made publicly known. Ed.. 438 U.2d 115 (3d Cir. 746.. Ed.S. Ed. 57 L. Texaco.S. Ed. 21 L. Ct. 57 L. § 13 [b]) permits a seller to rebut a prima facie case under § 2(a) by "showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor. at 1103-1104 . 510.S. 65 S.. 334. 438 U. 588.Page 32 5-19 Business Crime P 19. 455 F. if one seller offers a price concession for the purpose of winning over one of his competitor's customers. Supp. Ct. 98 S.S. 333 .. v. 1338 (1945)] and [ Corn Products Co. Section 2(a) of the Robinson-Patman Act (current version at 15 U. 326 F. such a seller would appear to . 393 U. Price concessions by oligopolists generally yield competitive advantages only if secrecy can be maintained. Ct. See 438 U.. e. 295. 528 (1969) (civil action charging that exchange of information among competitors constituted a price-fixing agreement in violation of § 1 of the Sherman Act).will not serve its putative function of corroborating the representations of unreliable buyers regarding the existence of competing offers. Co. be sufficient to make the requisite showing of good faith. 1104 (1925) (civil action). 2d at 881-882 : There remains the possibility that in a limited number of situations a seller may have substantial reasons to doubt the accuracy of reports of a competing offer and may be unable to corroborate such reports in any of the generally accepted ways.S. 2864. 333. 2d 854 (1978) . United States Gypsum Co. 961. 2d at 879 .S. 726. 98 S.if undertaken on an isolated and infrequent basis with no provision for reciprocity or cooperation -.. (n149)Footnote 149. (n145)Footnote 145. Ct. nothing in the language of § 2(b) or the gloss on that language in [ FTC v.

Pub. Department .. 639. (n151)Footnote 151.S. e. Department of Justice. Rep. No. 191 F. v. Constance K. See Scherer.C. 7-Up Bottling Co. Code Cong. First Interstate Bank. Such an agreement would make little economic sense. Container Corp. 1999) (competitor's "participation in an organization that collected and audited member's production and sales figures to calculate and distribute aggregate market statistics is as consistent with legitimate behavior as with conspiratorial behavior"). Antitrust Division. available from The Antitrust Division. 101st Cong. such an agreement would have the effect of eliminating the very price concessions which provide the main element of competition in oligopolistic industries and the primary occasion for resort to the meeting competition defense.g. (n155)Footnote 155. 2879 (1990). Robinson. U. Gulf Abstract & Title.S.S. The other variety of interseller verification is. 526-527 (9th Cir. Amey. Regardless of its putative purpose. (n158)Footnote 158. Antitrust Liability for an Exchange of Price Information -. Act of July 7. like the conduct charged in the instant case. See United States v. News 4100.. 1708 (1974) (current version at 15 U. 2d Sess.. Inc.S. Constance K.S. 93-1463.Page 33 5-19 Business Crime P 19. (n152)Footnote 152. 101-588. L. at 449 . if its sole purpose were to guarantee all participants the opportunity to match the secret price concessions of other participants under § 2(b). Inc. 104 Stat.).3d 112. 393 U. supra. §§ 1-3). Archer-Daniels Midland Co. of Jasper. 758 F.02 have at least as great an incentive to misrepresent the existence or size of the discount as would the buyer who received it. the most likely consequence of any such agreement to exchange price information would be the stabilization of industry prices.2d 522. § 3. Code Cong & Ad. Wilcox v. L.When Does the Department of Justice Challenge?. U. 1107 (1986) (price data exchange. 88 Stat. 14-15. in our view. 1505 (11th Cir.. 101-287.R.C. 63 Va. denied. ( In re Citric Acid Litig. (n150)Footnote 150. v. 69 Stat. 1955.What Happened to Container Corp. Antitrust Division.2d 1486. The United States Department of Justice. Ct. 1099 (9th Cir. No. Rev. No. Instead of facilitating use of the § 2(b) defense. 5. Communications Among Competitors -. 21 L. does not hold out much promise as a means of shoring up buyers' representations. 1999) (exchange of pricing and other information by lower-level employee for purpose of gathering information about his employer's competitors did not violate antitrust laws). Robinson. 282 (current version at 15 U.3d 1090. 15 U. 510. Inc. For in such circumstances. 2d Sess. News 6535. Ed. (n154)Footnote 154. each seller would know that his price concession could not be kept from his competitors and no seller participating in the information-exchange arrangement would. 166 F.S. 6540... & Ad. 475 U. § 6 (1988). have any incentive for deviating from the prevailing price level in the industry. 124-126 (3d Cir. undertaken pursuant to an agreement.. 93-528. See. (n157)Footnote 157.S. L.C. See H. cert. No. Deputy Director of Operations. at 336-337. reprinted in [1974] U. 135. 815 F. § 4(a). 89 S. 666 (1977). (n156)Footnote 156. 1993) at 13. providing for reciprocity among competitors in the exchange of price information. (n153)Footnote 153. Address Before the ABA Section of Antitrust Law (Oct.S. 1985) . reprinted in [1990] U. 1987) ("disclosure of the prime rate does not enable competitors to conspire to fix prices and does not necessarily constitute a violation of the antitrust laws"). Thus verification. Rep. without agreement to fix prices held lawful). 2d 526 . No. Note. See S. either tacit or express. Pub. In re Baby Food Antitrust Litig. if undertaken on a one shot-basis for the sole purpose of complying with the § 2(b) defense. Pub. Deputy Director of Operations. therefore. §§ 1-3). 93d Cong. L. 4108.S.

L. Guidelines Manual § 8C2.D. II. The increase in the number of multi-count indictments has been substantial.C. the number was up to 50%.5(f) (1999). L. § 211. available from The Antitrust Division. United States Sentencing Commission. U. Nov. The United States Department of Justice. Deputy Director of Operations. Guidelines Manual § 2R1. (n169)Footnote 169.S. 98-473. (n163)Footnote 163. Department of Justice. Constance K. No. 3592.S. tit. United States Sentencing Commission.1 and 8C2.S. only 29% of the Antitrust Division's indictments charged additional counts. 1985. 1279. Address Before the ABA Section of Antitrust Law (Oct. The United States Department of Justice.C. 14-15.D. as amended by Pub. 3700 (S. Deputy Director of Operations. 14-15. (n159)Footnote 159. 1985. Communications Among Competitors -. Guidelines Manual § 2R1. 100 Stat. No.N. (n167)Footnote 167. Stolt-Nielsen Transp. filed May 20. 1993) at 14. U. 99-217. Robinson. Communications Among Competitors -.S. By 1992. Robinson.). § 211.S. Constance K. 98-473. 3597. The United States Department of Justice.). No. 101 Stat. Oct. Robinson. Guidelines Manual § 2R1. 1987. 100 Stat.1 (1999). U. Pub. § 212(a)(2).C. 26. 12. 12. L. 3597. Pub. 3592. Antitrust Division. United States Sentencing Commission. 1987. Robinson. Communications Among Competitors -. 99-646. 1728.5(g) (1999). and Pub. Department of Justice. (n172)Footnote 172. Constance K. 99-646. No. 99 Stat. (n160)Footnote 160. 1984. Guidelines Manual § 2R1.When Does the Department of Justice Challenge?. 100-185. Group Ltd. available from The Antitrust Division. § 3551 et seq. Pub. v. see e. Department of Justice. II.When Does the Department of Justice Challenge?. 1280 (1987) (current version at 18 U. 1987. 10. 10. L. 14-15. U. tit. 173 (D.). 3551 (1988). Deputy Director of Operations.Page 34 5-19 Business Crime P 19. United States Sentencing Commission.C. Oct. Antitrust Division. Constance K. 1984 (current version at 18 U. 1984. No.1(b)(2) (1999).S. (n161)Footnote 161. 1728. Department of Justice. (n166)Footnote 166. Department . L. and Pub. No. No. Pub. 1993). 1992) cited in Constance K. 1993) at 13. Address Before the ABA Section of Antitrust Law (Oct. § 6. 26. 1986 (current version at 18 U.C. United States Sentencing Commission. 2d 166. (n168)Footnote 168. U. Dec.When Does the Department of Justice Challenge?. 98 Stat. The United States Department of Justice.Y.S.g.When Does the Department of Justice Challenge?. 92 Civ. Guidelines Manual §§ 5K1. Communications Among Competitors -. 1993) at 13. Antitrust Division. available from The Antitrust Division. (n165)Footnote 165. 98 Stat. L. (n170)Footnote 170. Antitrust Division. 14-15. 99-217. No. The United States Department of Justice. Deputy Director of Operations. L. 3600. Deputy Director of Operations. as amendedby Pub.1(c)(1) (1999). however. Supp. 1986 (current version at 18 U. Address Before the ABA Section of Antitrust Law (Oct. Dec. Communications Among Competitors -. United States Sentencing Commission. 3600. 98-473. 3551 (1988). Robinson.When Does the Department of Justice Challenge?. (n164)Footnote 164. 12.02 of Justice. 2007) (discussing agreement). II.S.S. Address Before the ABA Section of Antitrust Law (Oct. available from The Antitrust Division. 1993). L. 98 Stat. et seq. (n171)Footnote 171. (n162)Footnote 162. 480 F. 99 Stat. United States. Oct.1(d)(1) (1999). Antitrust Division. tit. No. available from The Antitrust Division. et seq. 14-15. Address Before the ABA Section of Antitrust Law (Oct. § 3571). In 1989. Nov.

The corporate leniency policy enjoyed limited success at first. 1970.A § 6002).Criminal Antitrust Enforcement in the 1990's. The United States Department of Justice. tit. § 201(a). available from The Antitrust Division. Pub. Oct. Because a corporation generally had no knowledge of whether any investigation had begun.C. § 330013(4). 14-15. No. however. (n174)Footnote 174. No. 103-322. because the Antitrust Division took the position that to avoid prosecution. In 1993. . the informing organization had to come forward with the information prior to the start of any Division investigation of the illegal activity. (n175)Footnote 175. Sept. Sept.C. 1995). Crime and Punishment -. No.When Does the Department of Justice Challenge?. 13. Communications Among Competitors -.02 of Justice. 15. Address Before the ABA Section of Antitrust Law (Oct. 59 Antitrust L.S. XXXIII. 159-60 (1990). XXXIII. L. II. 927. tit. the Division stated that an organization would qualify for the Corporate leniency program even if the Division had already begun its own investigation of the activity in question. it was deterred from coming forward. L. 15. it had no idea of whether it would qualify for corporate leniency if it came forward with information regarding a conspiracy that it was a party to. available from The Antitrust Division. the Division changed the policy so as to increase a corporations' incentive to turn in its co-conspirators. as amended by Pub. This change had immediate impact: in the year following its institution. Pub. as amended by Pub. Spratling. 103-322. (n173)Footnote 173. Specifically. Whalley. 84 Stat. (n176)Footnote 176. 1994 (current version at 18 U. 1994 (current version at 18 U. 1970.J. Oct. L. and. § 201(a). Joint Address Before the Criminal Antitrust Law and Procedure Workshop ABA Section of Antitrust Law (February 23. compared to the one corporation that came forward per year under the original policy. No. 151. an average of one corporation came forward per month with information regarding an offense. therefore.A § 6002). 91-452. 91-452. 1993). 927. L. tit. 13.Page 35 5-19 Business Crime P 19. The United States Department of Justice. Bingaman and Gary R. 84 Stat.S. See Anne K. tit. See Judy L. § 330013(4). II.

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