NCJ Number
73459
Date Published
1980
Length
10 pages
Annotation
The Chief of the Antitrust Division of the Justice Department shares his perspective on the issue of criminal antitrust enforcement policy, including its rationale, procedures, and goals.
Abstract
The antitrust division believes that increased criminal enforcement discourages anticompetitive conduct more than fines. As a matter of policy in virtually all cases, the division seeks to indict individuals as well as companies. In addition to seeking jail sentences whenever appropriate, the division has taken a hard line on the subject of plea bargaining. Moreover, the department policy opposes nolo contendere pleas except in truly unusual circumstances where the public interest dictates otherwise. However, policy does give serious consideration to lenient treatment of corporations and officers voluntarily reporting such leniency, the confession of wrongdoing must be a corporate act, not the confession of individual executives. Some other factors considered include whether the division could reasonably have been expected to discover the violation in the near future; whether the corporation upon discovery of illegal activity previously unknown to it, promptly terminated its part in the conspiracy; and whether restitution is made or will be made. In addition, the candor and completeness with which the corporation reports the wrongdoing and continues to assist the division throughout the investigation, the nature of the violation, and the confessing party's role in the conspiracy are considered. To date, only a small number of companies have taken advantage of the leniency program, due perhaps, to the prospect of treble damages (from which the division cannot exempt an antitrust violator), and the lack of a reward or bounty for such disclosures. Criminal enforcement is not reserved solely for classic horizontal price fixing violations. The division will proceed criminally in cases involving per se antitrust violations, such as horizontal market division and resale price maintenance. Fee fixing, bidding constraints, and predatory or exclusionary conduct in the professions-- including medicine, accounting, engineering and law --have already come under fire and will continue to be a major focus of the division's investigative and prosecutorial efforts. Division 'early warning system' available to aid companies in identifying possible anticompetitive conduct or transactions include the Department of Justice Business Review Procedure, which helps businesses determine the division's enforcement intention with respect to a proposed transaction, and the Antitrust Guide for International Operations. The Antitrust Guide Concerning Research Joint Ventures is designed to dispel the mistaken view that the antitrust laws prevent or inhibit most cooperative research activity.