NCJ Number
74652
Journal
American Criminal Law Review Volume: 18 Issue: 2 Dated: (Fall 1980) Pages: 321-336
Date Published
1980
Length
16 pages
Annotation
This discussion of Federal antitrust law examines developments in case law, procedure, prosecution, and enforcement resulting from recent trends to prosecute antitrust violations more aggressively.
Abstract
Section 1 of the Sherman Antitrust Act is both a civil and criminal statute. However, increasing judicial concern about aggressive prosecution, a preference for criminal over civil prosecutions, and severe punishment of antitrust violations has led to reevaluation of the doctrinal element of intent. In the U.S. v. U.S. Gypsum Co., the U.S. Supreme Court held for the first time that intent is an element of criminal antitrust and must be established by the evidence. Nevertheless, Gypsum's mandate of proof of intent is contested in per se criminal prosecution, since its extension to these cases is tantamount to concluding that the Gypsum court abandoned the criminal case per se rule. Thus, most courts agree that the mandate does not apply to per se cases. Gypsum was also significant for its strong affirmation of the Sherman Act as the main instrument of broader antitrust policies recently laid down by Congress. Other important changes resulting from Gypsum and subsequent cases include extending Federal antitrust laws to conduct that only marginally affects interstate commerce, broadening the definition of withdrawal from a conspiracy, imputing acts of corporate agents to the corporation, and some evidence sufficiency developments. The article also states that at the grand jury stage of an antitrust proceeding, careful planning by the prosecution is crucial. Immunity, multiple representation, and possible future uses of inconsistent statements are especially important concerns. The Justice Department exercises a tight rein on immunity, granting it only when testimony is essential to public interest. Multiple representation becomes a problem because the increasing disunity of interests between corporate and individual antitrust defendants makes use of one attorney for all prejudicial to the rights of some. Procedural due process arguments may be based on discovery conflict during parallel civil and criminal proceedings and new government evidence-gathering powers. The article also discusses the effects of criminal actions on subsequent civil suits and grand jury trancripts as evidence in civil suits. Footnotes are included.