Antitrust Violation as a Crime (From White Collar Crimes, P 1-31, 1980, Gary P Naftalis, ed. - See NCJ-78913)

• NCJ Number: 78914
• Author(s): D Klingsberg
• Date Published: 1980
• Length: 31 pages
• Sale Source: American Law Institute-American Bar Assoc
• Language: English
• Country: United States of America

Annotation

This paper explains the nature of criminal antitrust offenses and presents guidelines for use by criminal defense attorneys in handling each step in such a case.

Abstract

Both Federal and State statutes contain criminal antitrust provisions. In the case of United States v. United States Gypsum Co., the Supreme Court explicitly distinguished criminal from civil antitrust liability by defining an element of intent that is now a prerequisite to criminal antitrust conviction. Most prosecutions involve violations of section 1 of the Sherman Act, which prohibits contracts, combinations, or conspiracies in unreasonable restraint of trade. Most other antitrust statutes do not provide for criminal penalties. Criminal penalties for Federal antitrust offenses were increased in 1974. Preventive counseling and the use of antitrust audits are recommended to prevent violations. The Government's tools for developing evidence that can lead to criminal antitrust charges include the use of civil investigative demands (CID's) and grand jury subpoenas. Recipients of a CID should be aware of their legal protections, such as the right to refuse to answer questions based on the privilege against self-incrimination. On learning of a grand jury investigation, the investigation's target should give serious consideration to seeking a grant of immunity from prosecution in return for cooperative testimony or to refusing to testify on self-incrimination grounds unless given immunity from prosecution. An important consideration in defending a criminal antitrust action may be the criminal case's effect on future civil treble damage liability, especially for corporations, for which incarceration is not a factor. These considerations are especially important in the decision whether to move for a bill of particulars. Motions to dismiss and defenses may entail consideration of the sufficiency of the indictment, double jeopardy, involvement of interstate commerce, and the statute of limitations. Typical issues which may arise in a trial and which are illustrated in price-fixing cases include proof of agreement, proof of unlawful purpose, and proof of participation. The development and use of guidelines for sentencing and the use of alternative sentences such as community work are also discussed. Footnotes with references are provided. For related material, see NCJ 78913.