When the FBI Comes Calling…®
ANTITRUST
Since the introduction of the Sherman Anti-Trust Act on July 2, 1890, individuals and corporations restricting and conspiring to restrict trade among states or with foreign nations have been subject to criminal sanctions. The laws enacted to "protect trade and commerce from restraints, monopolies, price-fixing, and price discrimination," are primarily found in 15 U.S.C. §§ 1 et seq. Black's Law Dictionary 104 (8th ed. 2005). In recent years, horizontal mergers and bid-rigging have been prosecuted under antitrust laws as well. See UNITED STATES DEPT. OF JUSTICE, Antitrust Enforcement and the Consumer, available here (last viewed March 7, 2008). While the proscribed activities found in Title 15 are crimes in themselves, AUSAs will often attempt to prosecute defendants under different criminal statutes as well. See United States v. Romer, 148 F.3d 359 (4th Cir. 1998) (defendant charged with antitrust violations and received enhanced sentence for obstruction of justice).
The United States Department of Justice Antitrust Division maintains and makes public a copy of its guidelines for investigating allegations of antitrust violations. See UNITED STATES DEPT. OF JUSTICE, Antitrust Division Manual, Chapter II, Provisions and Guidelines of the Antitrust Division, available here (last visited March 7, 2008). Furthermore, the specific guidelines for horizontal mergers, which were last updated on April 8, 1997, are also available on-line. See UNITED STATES DEPT. OF JUSTICE AND FED. TRADE COMM., HORIZONTAL MERGER GUIDELINES (APR. 8, 1997) available here (last visited March 7, 2008). While the "Guidelines are designed primarily to articulate the analytical framework the Agency applies in determining whether a merger is likely substantially to lessen competition," they do not "describe how the Agency will conduct the litigation of cases that it decides to bring." Id. at § 0.1, available here (last visited March 7, 2008). When the Antitrust Division begins an investigation, "the analysis is focused on whether consumers or producers 'likely would' take certain actions, that is, whether the action is in the actor's economic interest." Id. The guidelines also provide a useful tool for understanding how an investigation unfolds:
- First, the Agency assesses whether the merger would significantly increase concentration and result in a concentrated market, properly defined and measured. Second, the Agency assesses whether the merger, in light of market concentration and other factors that characterize the market, raises concern about potential adverse competitive effects. Third, the Agency assesses whether entry would be timely, likely and sufficient either to deter or to counteract the competitive effects of concern. Fourth, the Agency assesses any efficiency gains that reasonably cannot be achieved by the parties through other means. Finally the Agency assesses whether, but for the merger, either party to the transaction would be likely to fail, causing its assets to exit the market. The process of assessing market concentration, potential adverse competitive effects, entry, efficiency and failure is a tool that allows the Agency to answer the ultimate inquiry in merger analysis: whether the merger is likely to create or enhance market power or to facilitate its exercise. Id. at § 0.2 available here (last visited March 7, 2008).
Corporate executives or board members participating in antitrust schemes under the theory that the corporation shields them from prosecution, or on reliance that the corporation is a foreign entity, thereby providing some form of protection, should be mindful of 15 U.S.C. § 24, which states in relevant part that corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country, are subject to the provisions of 15 U.S.C. §§ 1 et seq.
Behavior not punished by the antitrust laws
Certain behavior has been given exemption to prosecution under the antitrust laws. For example, labor organizations have certain exemptions available. See 15 U.S.C. § 17 (2007). Major League Baseball has exemptions as well. See 15 U.S.C. § 26b (2007). With certain exceptions, the antitrust laws will not apply to charitable gift annuities or charitable remainder trusts. 15 U.S.C. § 37(a) (2007).