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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
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[4] Particular Elements of a Section 1 Violation.
[a] A Conspiracy.
Section 1 of the Sherman Act,n30 the section under which most criminal prosecutions are brought, is disjunctively
phrased in some of the most sweeping of legal language. In practice, however, most section 1 prosecutions focus on
several crucial elements of the statutory formulation.
The Sherman Act makes the act of conspiring itself illegal. The Act contains no requirement of a subsequent overt act
and the Supreme Court has refused to read such a requirement into the Act.n31 A defendant's participation in a criminal
conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a development and
a collocation of circumstances.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, either at its inception or during a later phase of its operation. Moreover, no formal agreement
is necessary to constitute an unlawful conspiracy; it is sufficient that a concert of action be contemplated and that the
defendants conform to the arrangement.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, or a meeting of the minds in an unlawful
arrangement, the conclusion that a conspiracy is established is justified."n34
Because patterns of anti-competitive business practice typically extend back in time beyond the five year statute of
limitations period,n35 the government frequently must rely on a theory of continuing conspiracy. Essentially, 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."n36 When proceeding under such a theory, 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.n37 However, the government need
not prove a new agreement within the statutory period.n38
[b] In Restraint of Trade.
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, as where persons engaged in interstate trade or commerce agree to
suppress competition among themselves, but includes as well involuntary restraints "where persons not so engaged
conspire to compel action by others, or to create artificial conditions which necessarily impede or burden the due course
of such trade or commerce, or restrict the common liberty to engage therein."n39 It is axiomatic that defendants who
intend to fix prices or to engage in bid rigging necessarily intend to restrain trade. Thus, with cases alleging these types
of anticompetitive acts, the government need not prove anything more than the intent to commit the act itself.n40
[c] Among the Several States.
The courts have repeatedly recognized that in enacting the Sherman Act, Congress intended to exercise the full sweep of
its power under the interstate commerce clause of the Constitution.n41 Accordingly, "however local its immediate
objects, a 'contract, combination ... or conspiracy' nonetheless may constitute a restraint within the meaning of § 1 if it
substantially and adversely affects interstate commerce."n42 In conspiracy cases, it must be shown that the conspiracy
had a sufficient nexus with interstate commerce, but this does not require proof that each individual defendant had such
an effect.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, the requisite interstate nexus can be established by proceeding along either or both
of two lines of inquiry. Under the first test, a conspiracy may be found to violate the Sherman Act because it occurs "in
commerce."n45 Under the "affecting commerce" test, even wholly intrastate or foreign activities can fall within the
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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.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.n48
[d] Intent.
In United States v. United States Gypsum Co.,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,
among other things, interseller price verification, i.e., the practice of telephoning a competing manufacturer to
determine the price being currently offered on gypsum board to a specific customer.n51 The district court instructed the
jury that if it found that interseller price verification had the effect of raising, fixing, maintaining, or stabilizing the price
of gypsum board, then such verification could be considered as evidence of an agreement to so affect prices. The jury
was further charged that "if the effect of the exchanges of pricing information was to raise, fix, maintain, and stabilize
prices, then the parties to them are presumed, as a matter of law, to have intended that result."n52 After extended
deliberation, the jury returned guilty verdicts against each of the defendants.n53
Disapproving of the district court's instruction, 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.n54 Noting that "at least with regard to crimes having their origin in the common law, an interpretative
presumption [has been established] that mens rea is required," the Court noted that:
[w]ith certain exceptions for conduct regarded as per se illegal because of its unquestionably
anticompetitive effects, See, e.g., United States v. Socony -Vacuum Oil Co., 310 U.S. 150, 60 S. Ct. 811,
84 L. Ed. 1129 (1940) , the behavior proscribed by the Act is often difficult to distinguish from the gray
zone of socially acceptable and economically justifiable business conduct. Indeed, the type of conduct
charged in the indictment in this case -- the exchange of price information among competitors -- is
illustrative in this regard. The imposition of criminal liability on a corporate official, or for that matter on
a corporation directly, for engaging in such conduct which only after the fact is determined to violate the
statute because of anticompetitive effects, without inquiring into the intentwith which it was undertaken,
holds out the distinct possibility of overdeterrence; 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.[Footnotes omitted.]n55
After holding that intent is a necessary element of at least some types of criminal antitrust violations, the Court
proceeded to define intent. Specifically, 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."n56 The Court went on to note, however, that:
[w]e do not mean to suggest that conduct undertaken with the purpose of producing anticompetitive
effects would not also support criminal liability, even if such effects did not come to pass. Cf. United
States v. Griffith, 334 U.S. 100, 105, 68 S. Ct. 941, 92 L. Ed. 1236 (1948) . We hold only that this
elevated standard of intent need not be established in cases where anticompetitive effects have been
demonstrated; instead, proof that the defendant's conduct was undertaken with knowledge of its probable
consequences will satisfy the Government's burden.n57
In criminal antitrust cases, therefore, the government can satisfy the criminal intent requirement by proving either: 1)
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that the defendant knew that such anticompetitive effects were probable; or 2) the defendant intended a clearly illegal,
anticompetitive result.n58
Because of the Gypsum Court's almost exclusive focus on interseller price verification -- a "gray zone" of Sherman Act
liability involving rule of reason analysisn59-- courts have construed the impact of Gypsum 's intent requirement on per
se cases, especially those involving price-fixing, to be quite limited.n60 The Gypsum Court's explicit recognition of the
continuing vitality of Socony-Vacuum n61(i.e. "certain exceptions for conduct regarded as per se illegal because of its
unquestionably anticompetitive effects"), 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."n62 Furthermore, 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.n63
Moreover, 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.n65
As previously stated, pursuant to Gypsum, some level of intent is a necessary element of criminal antitrust crimes. In
light of this requirement, the question has arisen whether a corporation's promulgation of an antitrust compliance
program negates such intent. The cases post Gypsum are split on this issue. Some district courts have used instructions
that specifically informed the juries that they could consider a corporation's antitrust compliance program in
determining intent.n66 The Fourth and Second Circuits, however, 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, notwithstanding that such acts
violated the corporation's instructions to the agent as reflected in a general antitrust compliance guide.n67 The Antitrust
Division has consistently opposed the giving of such instructions, based on its view that corporations are liable for the
acts of their employees under the doctrine of respondeat superior.n68
[5] Defenses.
[a] Vagueness of the Sherman Act as a Criminal Statute.
As noted in P 19.02[1], above , 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.n69 In
actuality, the federal courts have never fully succeeded in drawing such a "precise line." Instead, they have developed
the "rule of reason" doctrine under which only those contracts, combinations, or conspiracies that restrain trade
"unreasonably" are deemed to fall within the Sherman Act's proscriptions.n70 While certain business practices found to
be inherently unreasonable have been classified by the courts as per se violations of the Sherman Act,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.
In addition, a third level of inquiry has been developed. As stated by the Third Circuit, this analysis is an "abbreviated
rule of reason," which is to be employed when the activity at issue is not so anti-competitive that it falls in the per se
category, yet is more troublesome than those activities which are normally afforded a rule of reason
analysis.Specifically, in United States v. Brown University,n73 a price-fixing case brought against private universities,
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, courts sometimes apply what amounts
to an abbreviated or 'quick look' rule of reason analysis. The abbreviated rule of reason is an intermediate
standard. It applies in cases where per se condemnation is inappropriate, but where 'no elaborate industry
analysis is required to demonstrate the anticompetitive character' of an inherently suspect restraint.
Because competitive harm is presumed, the defendant must promulgate 'some competitive justification'
for the restraint, 'even in the absence of detailed market analysis' indicating actual profit maximization or
increased costs to the consumer resulting from the restraint. If no legitimate justifications are set forth,
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the presumption of adverse competitive impact prevails and 'the court condemns the practice without
ado.' If the defendant offers sound procompetitive justifications, however, the court must proceed to
weigh the overall reasonableness of the restraint using a full-scale rule of reason analysis.n74
The court concluded that the case at hand, involving a non-profit educational institution, warranted this intermediate
level of analysis, despite the fact that it was a price-fixing case. In addition, other courts have found that tying
arrangements warrant this intermediate level of analysis.n75
The Supreme Court has cautioned, however, that a "quick look" analysis is only appropriate "when the great likelihood
of anticompetitive effects can easily be ascertained," and that something more than a "quick look," and less than a
"plenary market examination," may be appropriate in some cases.n76 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."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. What is
required, rather, is an enquiry meet for the case, looking to the circumstances, details, and logic of a
restraint. The object is to see whether the experience of the market has been so clear, or necessarily will
be, that a confident conclusion about the principal tendency of a restriction will follow from a quick (or
at least quicker) look, in place of a more sedulous one.n78
In California Dental, 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, or possibly
no effect at all on competition."n79
In a number of early Sherman Act prosecutions, the defendants raised vagueness challenges.n80 In 1913, however, the
Supreme Court in Nash v. United States,n81 rejected the argument that the Sherman Act was "so vague as to be
inoperative on its criminal side."n82 Writing for the Court, Justice Holmes observed that "the law is full of instances
where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, 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]."n84 Despite the 1974amendments upgrading criminal violations of the Sherman Act to felony
status,n85 Nash continues to be followed in price-fixing cases.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. United States Gypsum Co.n87 As discussed above, because of a host of factors all deriving
from the vagueness of the Sherman Act's proscriptions, the Gypsum Court held that some level of intent is an essential
element of a criminal antitrust offense.n88 In the aftermath of Gypsum, 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."n89 As a practical matter, however, the possibility of a successful vagueness challenge is remote. In vagueness
cases not involving first amendment issues, the courts restrict their scrutiny of the challenged statute to the facts of the
case at hand.n90 Because the Antitrust Division has, for a number of years, made it a practice to "target only conduct
that is truly worthy of criminal sanction ... such as price-fixing, bid-rigging, and market allocation among competitors,
[which] has long been clearly illegal,"n91 it is unlikely that a defendant facing criminal prosecution will be able to
successfully assert a constitutional challenge.
[b] State Action Exemption.
In Parker v. Brownn92 the Supreme Court held that the Sherman Act was not intended to nullify state powers. Because
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the Act was directed against "individual and not state action," the Court concluded that state regulatory programs could
not violate it.n93 Under the program challenged in Parker, California's Prorate Advisory Commission authorized the
organization of local cooperatives to develop marketing policies for the raisin crop. The Parker Court emphasized that
the Advisory Commission, which was appointed by the governor, had to approve cooperative policies following public
hearings: "It is the state which has created the machinery for establishing the prorate program ... . [I]t is the state, acting
through the Commission, which adopts the program and enforces it...."n94 In view of this extensive official oversight,
the Court wrote, the Sherman Act was not applicable. Without such oversight, 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, or by declaring that their action is lawful."n95
Under Parker and its progeny,n96 two standards for antitrust immunity have been established. "First, the challenged
restraint must be 'oneclearly articulated and affirmatively expressed as state policy'; second, the policy must be 'actively
supervised' by the State itself."n97 The application of these standards was demonstrated in California Retail Liquor
Dealers Ass'n v. Midcal Aluminum, Inc. 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.
However, the program did not meet the second requirement for Parker immunity. In the Supreme Court's view, the state
simply authorized price-setting and enforced the prices established by private parties. The state neither established
prices nor reviewed the reasonableness of the price schedules; nor did it regulate the terms of the fair trade contracts.
The state did not monitor market conditions or engage in any "pointed reexamination" of the program. 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."n99
[c] Express Immunity.
One of the most important sources of immunity from the antitrust laws is the Clayton Act itself. Section 6n100 provides
that "[n]othing contained in the antitrust laws shall be construed to forbid the existence and operation of labor,
agricultural, or horticultural organizations ... or to forbid or restrain individual members of such organizations from
lawfully carrying out the legitimate objects thereof ... ." However, 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.n102
In addition, some federal regulatory statutes explicitly provide for exemption from the antitrust laws under certain
circumstances. 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, if
oral, a true and complete memorandum of, an agreement (except an agreement related to interstate air
transportation), or at a request for authority to discuss cooperative arrangements (except arrangements
related to interstate air transportation), and any modification or cancellation of an agreement, between
the air carrier or foreign air carrier and another air carrier, a foreign carrier, or another carrier.
Section 412 further states that the Secretary of Transportation "shall approve an agreement, request, modification, 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."n104 Under section 414 of the Act,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."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, 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
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immunity.n108
[d] Implied Immunity.
The doctrine of implied immunity comes into play where a particular federal regulatory scheme, although not providing
for specific immunity from antitrust liability, nonetheless sets up sufficient tension between itself and the antitrust laws
as to impliedly repeal the latter.n109 The statutory schemes of regulation, the implementation of those schemes, and the
particular competitive situations, have all varied so greatly from industry to industry that no bright line for determining
whether implied immunity exists has ever been illuminated. Some guiding principles have emerged, however. Implied
repeal of the antitrust laws "is not favored and not casually to be allowed. Only where there is a 'plain repugnancy
between the antitrust and regulatory provisions' will repeal be implied."n110 Where feasible, 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, and even then only to the minimum extent necessary."n112 While the pervasive nature of the
regulatory scheme is a factor in determining whether implied repeal exists,n113 certain activities by industries
perceived to be heavily regulated have nonetheless been held subject to the antitrust laws.n114
Implied immunity has thus been found to exist when enforcement of the antitrust laws would interfere with the
operation of the regulatory agency. Such interference has been found when the antitrust laws would prohibit action
specifically contemplated by the regulatory statute,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.n116
[e] Statute of Limitations.
Criminal antitrust prosecutions in the federal courts are subject to the general five-year statute of limitations set forth in
18 U.S.C. § 3282.n117 The five-year statutory period is measured backward from the date on which the indictment is
returned.n118 A conspiracy in restraint of trade is regarded as a continuing enterprise. Accordingly, even though such a
conspiracy was originally formed prior to the statutory period, it nonetheless may be prosecuted under the Sherman Act
if the conspirators' efforts continued into the period not barred by the statute of limitations.n119
[f] Withdrawal.
"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."n120 In United States v. United States Gypsum Co.,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, the Supreme
Court held that the "unnecessarily confining nature" of the trial court's instruction on withdrawal n122
constituted reversible error. In the Supreme Court's view, the charge, "fairly read, limited the jury's
consideration to only two circumscribed and arguably impractical methods of demonstrating withdrawal
from the conspiracy."n123 The Court explained that "[n]othing that we have been able to find in the case
law suggests, much less commands, that such confining blinders be placed on the jury's freedom to
consider evidence regarding the continuing participation of alleged conspirators in the conspiracy."n124
[g] Double Jeopardy.
Business practices alleged to be anticompetive typically involve conspiratorial conduct which is not only interstate in
range but continual in duration. Accordingly, the double jeopardy issue can arise either because of successive
prosecutions in the same jurisdiction or because of separate prosecutions in different jurisdictions.
The Double Jeopardy Clause itself is classic in its simplicity: "...nor shall any person be subject for the same offence to
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be twice put in jeopardy of life or limb...."n125
Note that the Double Jeopardy Clause bars any subsequent criminal penalties, even if the penalties are denominated as
civil. In determiningwhether a penalty is civil or criminal in nature, 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. If the legislature intended
the penalty to be civil in nature, 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."n126 Jeopardy is deemed to attach
once the jury is sworn.n127
Note that where the defendant waives his or her right to trial by jury, jeopardy attaches as soon as the court begins to sit
as the trier of fact.n128 The attachment of jeopardy, however, 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.n130
Generally speaking, the permissibility of multiple punishments based on a single transaction hinges on whether each
statutory provision "contains an element not contained in the other."n131 In Sherman Act prosecutions -- involving, as
they so often do, conduct in several states -- 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.n132 To prevail upon this point, a defendant must show by a preponderance of the evidence that
there was but oneconspiracy, even though its purposes were advanced in diverse states by diverse parties.n133
Many states have independently proscribed anticompetitive business practices and enforce their proscriptions with
criminal sanctions,n134 thus creating the possibility of sequential federal and state criminal prosecutions. In 1969, in
Benton v. Maryland,n135 the Supreme Court held that the Double Jeopardy Clause is binding on the states. Despite the
logical consequences which might seem to flow from Benton, 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.n136 Where the second prosecution is brought in state court, however, a greater degree of protection may be
obtainable under state law -- either under some general double jeopardy guaranteen137 or under a specific section of the
state antitrust statute.n138
[h] Permissible Information Exchanges.
The circumstances under which exchanges of information among competitors are permissible under the Sherman Act
have been repeatedly examined by the Supreme Court. In American Column & Lumber Co. v. 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.n140 The same result was
reached by the Courtin United States v. American Linseed Oil Co.n141 Then, in 1925, two cases upheld the exchange
of information among competitors. In Maple Flooring Ass'n v. United States,n142 the Sherman Act was held to permit
the exchange of average cost data relating only to closed transactions, despite an apparent stabilizing effect on price,
where no intent to constrain individual competitive activity was found. In Cement Mfrs. Protective Ass'n v. United
States,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.
Some 44 years later, in United States v. Container Corp.n144 Justice Douglas characterized the Cement Mfrs. holding in
the following terms:
While there was present here, as in Cement Mfrs. Protective Ass'n v. United States, 268 U.S. 588 [45
S. Ct. 586, 69 L. Ed. 1104 (1925)] , an exchange of prices to specific customers, there was absent the
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controlling circumstance, viz., that cement manufacturers, to protect themselves from delivering to
contractors more cement than was needed for a specific job, and thus receiving a lower price, exchanged
price information as a means of protecting their legal rights from fraudulent inducements to deliver more
cement than needed for a specific job.n145
For a number of years, the exact scope of the "controlling circumstance" exception alluded to by Mr. Justice Douglas in
Container Corp. remained largely undefined. 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).n146 In 1978, however, the
Supreme Court arrested this development with its decision in United States v. United States Gypsum Co.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. In the Court's view, resort to such
verification practices was quite unnecessary since "[a] good-faith belief, rather than absolute certainty, 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."n148 The Gypsum Court noted that, as a practical matter, manyof the supposed benefits to be derived from
interseller price verification were illusory.n149 Although Container Corp. and Gypsum limit the situations in which
competitors can exchange price data, they do not make all such exchanges illegal. Courts have found exchanges of price
information to be legal where the parties involved had legitimate reasons for such exchanges, and the purposes and
effects of such exchanges were not to stabilize prices.n150
[6] Penalties.
Maximum penalties for Sherman Act violations have increased since the Act was first passed. Specifically, the penalty
provisions of the Act have been made more severe by three separate amendments. In 1955, Congress increased the
maximum fine to be levied on both corporations and individuals for violations of the Act from $5,000 to $50,000, with
a maximum of one year of imprisonment.n151 The Sherman Act was amended again in 1974 by the Antitrust
Procedures and Penalties Act.n152 The 1974 amendment increased the maximum fine to $100,000 for individual
violators and $1,000,000 for corporations. In addition, the maximum period of imprisonment was increased from one to
three years, thus upgrading Sherman Act violations from misdemeanor to felony status. The amendment's legislative
history indicates that Congress believed that the previous penalty structure was no longer commensurate with the
potential offenses.n153
Most recently, the penalty section of the Act was amended by the Antitrust Amendments Act of 1990.n154 The 1990
amendment increased the maximum fines yet again, this time to $350,000 for individuals, and $10,000,000 for
corporations. 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 ... ."n155 The maximum period of imprisonment, however, was not changed by
the 1990 amendment.
Another remedy available under the Sherman Act is asset forfeiture.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, or pursuant to any conspiracy (and
being the subject thereof) mentioned in section 1 of [the Sherman Act], and being in the course of
transportation from one state to another, or to a foreign country, shall be forfeited to the United States,
and may be seized and condemned by like proceedings as those provided by law for the forfeiture,
seizure, and condemnation of property imported into the United States contrary to law.
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.n157 Section 6 has rarely been used, however. In fact, research by
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the Antitrust Division shows that prior to 1992, "this section was cited in [only] four cases, the latest one in 1930 [and]
nobody in the Division remembers using this remedy."n158 Section 6 was recently invoked, however, in the 1992 case
United States v. Certain Property Owned by Salomon Brothers, Inc.,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, thereby increasing the price of such notes to an anticompetitive level. 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. Thus, there may be more cases brought under section 6 in the future. This section,
however, "will be most likely used in those limited cases where injunctive relief is not available."n160
In addition to the penalty provisions of the Sherman Act itself, Congress passed the Criminal Fines Improvements Act
in 1984, which increased penalties for many federal crimes, including antitrust violations.n161 Specifically, this Act
applied to offenses committed after January 1, 1985, and allowed for fines for federal felonies to be set at the greater of
the following three calculations: 1) the amount set by statute; 2) double the gross amount that was gained from the
violation or lost by the victim ("double gain/double damage"); or 3) $250,000 for individuals and $500,000 for
corporations. The double gain/double damage provision expired on November 1, 1987, but was re-enacted a month later
on December 11, 1987 as part of the Criminal Fines Improvements Act of 1987.n162 Therefore, with the exception of
offenses committed between November 1, 1987 and December 11, 1987, offenses committed since January 1, 1985
warrant fines of either the amount specified by the Sherman Act ($350,000 for individuals; $10,000,000 for
corporations), double the gross amount gained by the offense, or double the amount lost by the victim, whichever is
greatest.
Furthermore, pursuant to the Sentencing Reform Act of 1984,n163 as of November 1, 1987, all federal courts must
apply the United StatesSentencing Commission's Federal Sentencing Guidelines, to all sentences.n164 Three antitrust
offenses are addressed by the Federal Sentencing Guidelines: (1) bid rigging; (2) price fixing; and (3) market allocation
agreements among competitors.n165 The Guidelines allow for the imposition of concurrent prison sentences and fines
for individuals who commit one of these three violations. As for the term of imprisonment, the base level offense has a
minimum recommended sentence of six to twelve months, 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."n166 The Guideline fine range for individuals is "one to five percent of the volume of commerce, but not
less than $20,000,"n167 while the base fine for organizations is "20% of the volume of affected commerce."n168 In
determining the separate penalty under the Guidelines, 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.n170
As stated, as a result of the above mentioned statutes and amendments regarding penalties, fines and prison sentences
for Sherman Act violations have been increasing over time. This trend has been further enhanced by the increase in the
number of indictments which allege additional crimes along with antitrust violations. Specifically, the Antitrust
Division is "increasingly including charges such as: wire fraud (18 U.S.C. § 1343); mail fraud (18 U.S.C. § 1341); false
statements (18 U.S.C. § 1001); conspiracy to defraud (18 U.S.C. § 371); and tax evasion (26 U.S.C. § 7201)" in its
cases.n171 This "bundling" of charges means a greater number of cases resulting in multiple convictions and, therefore,
longer sentences.n172
Despite the specificity of both the various statutory provisions and the Guidelines sections regarding penalties for
violators of the antitrust laws, 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.n173 Furthermore, in certain circumstances, a defendant can avoid prosecution
altogether. For example, pursuant to federal statute,n174 when a witness' testimony is necessary to protect the public
interest but he or she invokes the protection of the fifth amendment, the witness may be forced to testify pursuant to a
court order granting such witness use immunity from his or her testimony.n175 Once use immunity is ordered, the
witness' testimony and any information derived from such testimony may not be used against the witness. A second way
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to avoid prosecution under the federal antitrust laws is pursuant to the Antitrust Division's corporate leniency policy.
Under this policy, 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.n176
FOOTNOTES:
(n1)Footnote 1. 15 U.S.C. § 1 (originally enacted as Act of July 2, 1890, ch. 647, § 1, 26 Stat. 209).
(n2)Footnote 2. In § 4 of the Sherman Act (now codified at 15 U.S.C. § 4), the government was given the power to
seek injunctive relief against violations of the Act; in § 7, private litigants were given the right to obtain "threefold the
damages" sustained as a result of a violation of the Act (Sherman Antitrust Act, ch. 647, § 7, 26 Stat. 210). (Note that §
7 of the Sherman Act was superseded by § 4 of the Clayton Act, providing a treble damage remedy for violations of any
of the antitrust laws of the United States [current version at 15 U.S.C. § 15] [originally enacted as Act of October 15,
1914, ch. 323, § 4, 38 Stat. 731]).
(n3)Footnote 3. 15 U.S.C. § 1 (Act of July 2, 1890, ch. 647, § 1, 26 Stat. 209, as amended bythe Antitrust
Procedures and Penalties Act, Pub. L. No. 93-528, § 3, 88 Stat. 1708, Dec. 21, 1974; the Consumer Goods Pricing Act
of 1975, Pub. L. No. 94-145, § 2, 89 Stat. 801, Dec. 12, 1975; and the Antitrust Amendments Act of 1990, Pub. L. No.
101-588, § 4(a), 104 Stat. 2880, Nov. 16, 1990).
(n4)Footnote 4. 15 U.S.C. § 2 (Act of July 2, 1890, ch. 647, § 2, 26 Stat. 209, as amended by the Antitrust
Procedures and Penalties Act, Pub. L. No. 93-528, § 3, 88 Stat. 1708, Dec. 21, 1974; and the Antitrust Amendments Act
of 1990, Pub. L. No. 101-588 § 4(b), 104 Stat. 2880, Nov. 16, 1990).
Note that § 3 of the Sherman Act (now codified at 15 U.S.C. § 3) - the section which extends the proscriptions of §§ 1
and 2 to United States territories and the District of Columbia -- contains similar felony provisions.
(n5)Footnote 5. 21 Cong. Rec. 2457, 2460 (1890) (remarks of Senator Sherman).
For a brief description of the common law background, see above P 19.01[1].
(n6)Footnote 6.
Standard Oil Co. v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911) .
(n7)Footnote 7. See generally Robert Bork, The Rule of Reason and the Per Se Concept: Price Fixing and Market
Division, 74 Yale L.J. 775, 801-806 (1965).
(n8)Footnote 8. See Joel I. Klein, Acting Assistant Attorney General, Antitrust Division, United States Department
of Justice, "Criminal Enforcement in a Globalized Economy" (Feb. 20, 1997)
[http://www.usdoj.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 ... we must remain vigilant in
ensuring that we use the criminal sanction only when it is clearly appropriate. If we dilute its strength by trying to
stretch it to address novel and less compelling cases, we will surely regret it."); Gary R. Spratling, Deputy Assistant
Attorney General, Antitrust Division, United States Department of Justice, "Criminal Antitrust Enforcement Against
International Cartels" (Feb. 21, 1997) [http://www.usdoj.gov/atr/public/speeches/grs97221.htm] ("The investigation and
prosecution of international cartels is one of the highest--if not the highest--priorities of the Antitrust Division."); Anne
K. Bingaman, Assistant Attorney General, Antitrust Division, United States Department of Justice, "Trends in Criminal
Antitrust Enforcement" (Nov. 30, 1995) [http://www.usdoj.gov/atr/public/speeches/speech.n30] ("Criminal enforcement
against the most serious antitrust offenses has been, and remains, our core mission. That is because price fixing, market
allocation, and bid rigging steal from, and commit fraud upon, American businesses and customers--by artificially
Page 13
raising prices, lowering the quality of goods and services, and reducing choices."); Charles F. Rule, 60 Minutes With
Charles F. Rule, Assistant Attorney General Antitrust Division (1988), reprinted in 57 Antitrust L.J. 257, 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, [it] has been careful to target only conduct that is truly worthy of criminal sanction ...The
targeted conduct, such as price-fixing, bid-rigging, and market allocation among competitors, has long been clearly
illegal."); see also Donald I. Baker, To Indict or Not to Indict : Prosecutorial Discretion in Sherman Act Enforcement,
63 Cornell L. Rev. 405 (1978).
(n9)Footnote 9. See James P. Mercurio, Antitrust Crimes: Time for Legislative Definition, 51 Notre Dame L. Rev.
437, 438 (1976).
(n10)Footnote 10. Standard Oil Co. v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911) .
(n11)Footnote 11. 221 U.S. at 51-55, 31 S. Ct. at 512-514, 55 L. Ed. at 641-643 .
(n12)Footnote 12. 221 U.S. at 59-62, 31 S. Ct. at 515-516, 55 L. Ed. at 645-646 . The Court's opinion explained:
In view of the common law and the law in this country as to restraint of trade, which we have
reviewed, and the illuminating effect which that history must have under the rule to which we have
referred, we think it results:
a. That the context manifests that the statute was drawn in the light of the existing practical
conception of the law of restraint of trade, because it groups as within that class, not only contracts which
were in restraint of trade in the subjective sense, but all contracts or acts which theoretically were
attempts to monopolize, yet which in practice had come to be considered as in restraint of trade in a
broad sense.
b. That in view of the many new forms of contracts and combinations which were being evolved
from existing economic conditions, 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. The statute under this view
evidenced the intent not to restrain the right to make and enforce contracts, whether resulting from
combinations or otherwise, which did not unduly restrain interstate or foreign commerce, but to protect
that commerce from being restrained by methods, whether old or new, which would constitute an
interference, -- that is, an undue restraint.
c. And as the contracts or acts embraced in the provision were not expressly defined, since the
enumeration addressed itself simply to classes of acts, 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, 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, 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. Thus not specifying, but indubitably contemplating and requiring a
standard, 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, in a given case, a particular act
had or had not brought about the wrong against which the statute provided.
(n13)Footnote 13. United States v. American Tobacco Co., 221 U.S. 106, 31 S. Ct. 632, 55 L. Ed. 663 (1911) .
Page 14
(n14)Footnote 14. 221 U.S. at 180, 31 S. Ct. at 648, 55 L. Ed. at 694 .
(n15)Footnote 15. See Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S. Ct. 242, 62 L. Ed. 683
(1918) (Brandeis, J.):
Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of
their very essence. The true test of legality is whether the restraint imposed is such as merely regulates
and perhaps thereby promotes competition, or whether it is such as may suppress or even destroy
competition. To determine that question the court must ordinarily consider the facts peculiar to the
business to which the restraint is applied; its condition before and after the restraint was imposed; the
nature of the restraint, and its effect, actual or probable. The history of the restraint, the evil believed to
exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all
relevant facts. This is not because a good intention will save an otherwise objectionable regulation, or the
reverse; but because knowledge of intent may help the court to interpret facts and to predict
consequences.
(n16)Footnote 16. United States v. United States Gypsum Co., 438 U.S. 422, 438, 98 S. Ct. 2864, 2874, 57 L. Ed.
2d 854, 870 (1978) . The history of Gypsum is as follows: United States v. United States Gypsum Co., 383 F. Supp. 462
(W.D. Pa. 1974) , rev'd, 550 F.2d 115 (3d Cir. 1977) , and aff'd, 438 U.S. 422 (1978) . For a history of proceedings on
remand, see 600 F.2d 414 (3d Cir.) , cert. denied, 444 U.S. 884 (1979) ; see also Leegin Creative Leather Products, Inc.
v. PSKS, Inc., _U.S._, 127 S.Ct. 2705, 2712-13, 168 L. Ed. 2d 623 (2007) (discussing rule of reason).
(n17)Footnote 17. See, e.g., Standard Oil Co. v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911) .
(n18)Footnote 18. See also Leegin Creative Leather Products, Inc. v. PSKS, Inc., _U.S._, 127 S.Ct. 2705, 2712-13,
168 L. Ed. 2d 623 (2007) ; United States v. Brown, 936 F.2d 1042, 1046 (9th Cir. 1991) ; United States v. Fischbach &
Moore, Inc., 750 F.2d 1183, 1195-1196 (3d Cir. 1984) , cert. denied, 470 U.S. 1029 (1985) ; United States v. Brighton
Bldg. & Maintenance Co., 598 F.2d 1101, 1106 (7th Cir.) , cert. denied, 444 U.S. 840 (1979) .
(n19)Footnote 19. See United States v. Manufacturers' Ass'n of the Relocatable Bldg. Indus., 462 F.2d 49 (9th Cir.
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, in actuality, substantive rule);
see also Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952) (conclusive presumption may not
operate to deny accused right to have each element of crime charged submitted to jury).
(n20)Footnote 20. United States v. Trenton Potteries Co., 273 U.S. 392, 47 S. Ct. 377, 71 L. Ed. 700 (1927) .
(n21)Footnote 21. See 273 U.S. at 397-398, 47 S. Ct. at 379, 71 L. Ed. at 705 (Stone, J.) :
The aim and result of every price-fixing-agreement, if effective, is the elimination of one form of
competition. The power to fix prices, whether reasonably exercised or not, involves power to control the
market and to fix arbitrary and unreasonable prices. The reasonable price fixed today may through
economic and business changes become the unreasonable price of tomorrow. Once established, it may be
maintained unchanged because of the absence of competition secured by the agreement for a price
reasonable when fixed. Agreements which create such potential power may well be held to be in
themselves unreasonable or unlawful restraints, 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. Moreover, in the absence of express
legislation requiring it, 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
Page 15
reasonable -- a determination which can be satisfactorily made only after a complete survey of our
economic organization and a choice between rival philosophies.
In United States v. Brighton Bldg. & Maintenance Co., 598 F.2d at 1105 , 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. This means that the mere doing of the
act itself constitutes an unreasonable restraint in interstate commerce, and it is not necessary to consider
why the acts were committed, or their effect on the industry, or any other explanatory matter. Conduct
regarded as unreasonable per se includes price fixing, division of markets and bid rigging.
Where conduct unreasonable per se is shown, it cannot be justified or excused by the elimination of
competitive evils, or the good motives of the conspirators, or the fact that prices were not unreasonably
high or arbitrary.
(n22)Footnote 22. United States v. Trenton Potteries Co., 273 U.S. at 397 98, 47 S. Ct. at 379, 71 L. Ed. at 705 ;
Leegin Creative Leather Products, Inc. v. PSKS, Inc., _U.S._, 127 S.Ct. 2705, 2712-13, 168 L. Ed. 2d 623 (2007) .
(n23)Footnote 23. See, e.g., FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 110 S. Ct. 768, 107 L. Ed.
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); Arizona v. Maricopa County Medical Soc'y, 457 U.S. 332, 102 S. Ct. 2466,
73 L. Ed. 2d 48 (1982) (agreement to fix prices between medical care foundations was per se unlawful even though
agreement set maximum prices); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S. Ct. 811, 84 L. Ed. 1129
(1940) (held per se unlawful an agreement between sellers of gasoline to stabilize prices by purchasing excess supply on
the spot market).
(n24)Footnote 24. See, e.g., United States v. Topco Assocs., 405 U.S. 596, 92 S. Ct. 1126, 31 L. Ed. 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); United States v. Suntar Roofing Inc., 897 F.2d 469 (10th Cir. 1990) (roofers
agreement to divide up customers for installation of roofs held to be a per se violation); United States v. Brown, 936
F.2d 1042 (9th Cir. 1991) (held per se illegal an agreement among billboard companies that restricted their ability to
compete for the others' sites).
(n25)Footnote 25. See, e.g., United States v. MMR Corp., 907 F.2d 489 (5th Cir. 1990) (held that district court did
not err when it applied per se liability rules to a bid rigging scheme among electrical contractors), cert. denied, 499 U.S.
936 (1991) ; United States v. W.F. Brinkley & Son Constr. Co., 783 F.2d 1157 (4th Cir. 1986) (held that scheme where
one bidder gave another bidder an intentionally high number to bid was per se violation); United States v. Guthrie, 814
F. Supp. 942 (E.D. Wash. 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), aff'd, 17 F.3d 397 (9th Cir.) , cert. denied,
513 U.S. 823 (1994) ; AMEC E&C Servs. v. Nu-West Indus., 395 F. Supp. 2d 957 (D. Idaho 2005) (because bid-rigging
to exclude a competitor would be per se illegal, and there were questions of fact concerning whether plaintiff and the
other bidder acted in concert to exclude a competitor from bidding, defendant's § 1 cross-claim survived summary
judgment).
(n26)Footnote 26. See, e.g., FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 110 S. Ct. 768, 107 L. Ed.
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); Sandy River Nursing Care v. Aetna Casualty,
985 F.2d 1138 (1st Cir. 1993) (held alleged boycott by workers' compensation insurers' of state insurance market
constituted a per se violation), cert. denied, 510 U.S. 818 (1993) .
Page 16
(n27)Footnote 27. See, e.g., Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 9, 104 S. Ct. 1551, 80 L. Ed.
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.
Ry. v. United States, 356 U.S. 1, 6, 78 S. Ct. 514, 2 L. Ed. 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). Note, however, that while tying arrangements are considered to be per se violations, courts often
inquire into market conditions to decide whether the particular arrangement should be subject to a per se analysis. See,
e.g., NCAA v. Board of Regents, 468 U.S. 85, 104, 104 S. Ct. 2948, 82 L. Ed. 2d 70 (1984) ("Per se rules may require
considerable inquiry into market conditions before the evidence justifies a presumption of anticompetitive conduct. For
example, while the Court has spoken of a "per se" rule against tying arrangements, it has also recognized that tying may
have procompetitive justifications that make it inappropriate to condemn without considerable market analysis.");
Dickson v. Microsoft Corp., 309 F.3d 193, 209, n.18 (4th Cir. 2002) (any inquiry into the validity of a tying
arrangement must focus on the market or markets in which the two products are sold, for that is where the
anticompetitive forcing has its impact).
(n28)Footnote 28. See ABA Section of Antitrust Law, Antitrust Law Developments 662 (4th ed. 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, the Division has a long-standing policy of seeking indictments only
where it believes it can prove a clear, purposeful violation of the law.") (citation omitted); Charles F. Rule, 60 Minutes
With Charles F. Rule, Assistant Attorney General Antitrust Division (1988), reprinted in 57 Antitrust L.J. 257, 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.e., it includes an agreement among competitors, it restricts output and/or raises
prices, and it is covert and fraudulent in nature], ensures that we are fair. It also is impossible to imagine a situation
where the other three criteria are met and the requisite intent is absent. Indeed, the fact that the parties conceal their
agreement strongly corroborates the existence of the requisite intent.").
(n29)Footnote 29. See Phillip E. Areeda and Herbert Hovenkamp, Antitrust Law, § 312c, 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"); United States v. Brown, 936 F.2d 1042 (9th Cir. 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").
(n30)Footnote 30. Current version at 15 U.S.C. § 1. As amended, the section provides as follows:
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. 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, and, on conviction thereof, shall be punished by fine not
exceeding $10,000,000 if a corporation, or, if any other person, $350,000 or by imprisonment not
exceeding three years, or by both said punishments, in the discretion of the court.
(n31)Footnote 31. Nash v. United States, 229 U.S. 373, 378, 33 S. Ct. 780, 57 L. Ed. 1232 (1913) .
Note, however, that in some cases evidence of the commission of an overt act within the district of prosecution may
be a jurisdictional predicate. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 252-53, 60 S. Ct. 811, 84 L.
Ed. 1129 (1940) (although conspiracy was apparently formed elsewhere, 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).
Page 17
(n32)Footnote 32. See United States v. David E. Thompson, Inc., 621 F.2d 1147, 1151 (1st Cir. 1980)
("Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose or plan may be
inferred from a 'development and collocation of circumstances.' ") (citing Glasser v. United States, 315 U.S. 60, 80, 62
S. Ct. 457, 469, 86 L. Ed. 680 (1942)) . See also United States v. Champion Int'l Corp., 557 F.2d 1270, 1273 (9th Cir.)
(circumstantial evidence sufficient to prove existence of tacit agreement to submit rigged bids), cert. denied, 434 U.S.
938 (1977) .
(n33)Footnote 33. See United States v. General Motors Corp., 384 U.S. 127, 142-43 (1966) ("ithas long been
settled that explicit agreement is not a necessary part of a Sherman Act conspiracy"); United States v. MMR
Corporation, 907 F.2d 489, 495 (5th Cir. 1990) ("[t]he government, however, is not required to prove a formal, express
agreement with all the terms precisely set out and clearly understood by the conspirators") (citations omitted).
(n34)Footnote 34. American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S. Ct. 1125, 90 L. Ed. 1575
(1946) . Note, however, that courts have found that, at least for civil claims, evidence of parallel conduct alone is
insufficient to prove a violation. See Theater Enters. v. Paramount Film Distrib. Corp., 346 U.S. 537, 541, 74 S. Ct.
257, 98 L. Ed. 273 (1954) ("[c]ircumstantial evidence of consciously parallel behavior may have made heavy inroads
into the traditional judicial attitude toward conspiracy; but 'conscious parallelism' has not read conspiracy out of the
Sherman Act entirely' ") (footnote omitted); In re Baby Food Antitrust Litigation, 166 F.3d 112, 121-122 (3d Cir. 1999)
("Because the evidence of conscious parallelism is circumstantial in nature, courts are concerned that they do not punish
unilateral, independent conduct of competitors. They therefore require that evidence of a defendant's parallel pricing be
supplemented with 'plus factors.' "); Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1456 (11th Cir. 1990) ("we
require more than mere evidence of parallel conduct by competitors to support an inference of a conspiracy").
(n35)Footnote 35. Act of June 25, 1948, c. 645, 62 Stat. 828; as amended by Act of Sept. 1, 1954, c. 1214, § 12(a),
formerly § 10(a), 68 Stat. 1145, renumbered by Pub. L. No. 87-299, § 1, 75 Stat. 648, Sept. 26, 1961 (current version at
18 U.S.C. § 3282).
(n36)Footnote 36. United States v. Kissel, 218 U.S. 601, 607, 31 S. Ct 124, 54 L. Ed. 1168 (1910) .
(n37)Footnote 37. United States v. United States Gypsum Co., 600 F.2d 414, 417 (3d Cir.) , cert. denied, 444 U.S.
884 (1979) .
Note that it is sufficient if the element of continuity can be inferred from other evidence. See, e.g., United States v.
David E. Thompson, Inc., 621 F.2d 1147, 1152 (1st Cir. 1980) :
After examining the record, we find that there was sufficient evidence to allow the jury to find that
there was a single, 15-year conspiracy as charged in the indictment. While certain original members of
the conspiracy apparently dropped out of it and while new firms were drawn into the group, there was a
sufficient 'core' group, including appellant and McCabe, who worked together on and off throughout
most of the entire period. 'A finding of a single conspiracy is not defeated merely because of personnel
changes.' United States v. Ochoa, 609 F.2d 198 at 201 (5th Cir. 1980) . Most importantly, the
unchanging jargon, the implied reciprocity, 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, ad hoc basis.
(n38)Footnote 38. See United States v. Gypsum, 600 F.2d 414, 417-18 (3d Cir.) , cert. denied, 444 U.S. 884 (1979)
:
When the conspiracy is alleged to have been formed prior to the statutory period, the issue becomes
Page 18
one of continuation. 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.' United States v. Borelli, 336 F.2d
376, 385 (2d Cir. 1964) , cert. denied, 379 U.S. 960, 85 S. Ct. 647, 13 L. Ed. 2d 555 (1965) . There is no
requirement that the Government prove a new agreement in the statutory period. United States v. Kissel,
218 U.S. 601, 31 S. Ct. 124, 54 L. Ed. 1168 (1910) .
(n39)Footnote 39. United States v. Patten, 226 U.S. 525, 541, 33 S. Ct. 141, 57 L. Ed. 333, 341 (1913) (criminal
conspiracy to "run a corner in" the interstate cotton market).
(n40)Footnote 40. United States v. Gillen, 599 F.2d 541, 545 (3d Cir.) , cert. denied, 444 U.S. 866 (1979) . The
Gillen court distinguished United States v. United States Gypsum Co., 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 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. See also United Statesv. Smith Grading & Paving, Inc., 760 F.2d 527, 533 (4th Cir.) , cert. denied, 474 U.S.
1005 (1985) . ("[T]he trial court correctly instructed the jury that the government must prove the defendants' intentional
participation in the conspiracy to rig bids. The government did not have to prove the defendants' specific intent to
unreasonably restrain trade.") (citations omitted).
(n41)Footnote 41. See, e.g., the following cases:
United States Supreme Court: McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 100 S. Ct.
502, 62 L. Ed. 2d 441, 450 (1980) ; Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 743, 96 S.
Ct. 1848, 48 L. Ed. 2d 338 (1976) ; United States v. Employing Plasterers Ass'n, 347 U.S. 186, 189, 74 S.
Ct. 452, 98 L. Ed. 618 (1954) ; United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 65 S. Ct. 661,
89 L. Ed. 951 (1945) ; United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 558, 64 S. Ct.
1162, 1174, 88 L. Ed. 1440 (1944) ; Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 435,
52 S. Ct. 607, 76 L. Ed. 1204 (1932) .
Fourth Circuit: United States v. Foley, 598 F.2d 1323, 1328 (4th Cir. 1979) , cert. denied, 444 U.S.
1043, 100 S. Ct. 727, 62 L. Ed. 2d 728 (1980) ; Greenville Publishing Co. v. Daily Reflector, Inc., 496
F.2d 391, 395 (4th Cir. 1974) .
Fifth Circuit: United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1083 (5th Cir.) , cert.
denied, 437 U.S. 903 (1978) .
Ninth Circuit: Las Vegas Merchant Plumbers Ass'n v. United States, 210 F.2d 732 (9th Cir. 1954) .
(n42)Footnote 42. Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 194-95, 95 S. Ct. 392, 42 L. Ed. 2d 378
(1974) . The government may also allege that the activity in question occurred "in commerce." See, e.g., United States
v. Fitapelli, 786 F.2d 1461 (11th Cir. 1986) .
Cf. United States v. Women's Sportswear Mfrs. Ass'n, 336 U.S. 460, 464, 69 S. Ct. 714, 93 L. Ed. 805 (1949) : "If it is
interstate commerce that feels the pinch it does not matter how local the operation which applies the squeeze." (Roberts,
J.).
(n43)Footnote 43. United States v. Young Bros., Inc., 728 F.2d 682, 689 n.7 (5th Cir.) , cert. denied, 469 U.S. 881
(1984) . See, e.g., United States v. Foley, 598 F.2d 1323, 1328 (4th Cir. 1979) , cert. denied, 444 U.S. 1043 (1980) ;
Page 19
United States v. Wilshire Oil Co., 427 F.2d 969, 974 (10th Cir.) , cert. denied, 400 U.S. 829 (1970) .
(n44)Footnote 44. See, e.g., Swift & Co. v. United States, 196 U.S. 375, 398, 25 S. Ct. 276, 49 L. Ed. 518 (1905) .
(n45)Footnote 45. See Chicago Bd. of Trade v. Olsen, 262 U.S. 1, 35, 43 S. Ct. 470, 67 L. Ed. 839 (1923) ; Stafford
v. Wallace, 258 U.S. 495, 515-521, 42 S. Ct. 397, 66 L. Ed. 735 (1922) ; and Swift & Co. v. United States, 196 U.S. 375,
398-400, 25 S. Ct. 276, 49 L. Ed. 518 (1905) . Cf. McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 244,
100 S. Ct. 502, 510, 62 L. Ed. 2d 441, 452 (1980) :
The facts of Goldfarb [v. Virginia State Bar, 421 U.S. 773, 95 S. Ct. 2004, 44 L. Ed. 2d 572 (1975)]
revealed an application of the state bar association's minimum fee schedule to fix fees for attorneys' title
examination services. 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, because of the 'inseparability' of the attorneys' services from the title
examination process, we held that the legal services were in turn an 'integral part of an interstate
transaction.' 421 U.S., at 784-785, 95 S. Ct. 2004, 44 L. Ed. 2d 572 . By placing the Goldfarb holding on
the available ground that the activities of the attorneys were within the stream of interstate commerce,
Sherman Act jurisdiction was established. 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. 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. It has been more than 30 years since this Court stated, 'At this late day we are not willing to take
that long backward step.' Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. at 235,
(1948) ; see also United States v. Fitapelli, 786 F.2d 1461 (11th Cir. 1986) .
(n46)Footnote 46. Teamsters Local 167 v. United States, 291 U.S. 293, 54 S. Ct. 396, 78 L. Ed. 804 (1934)
(intrastate); see also Hartford Fire Ins. Co. v. California, 509 U.S. 764, 796, 113 S. Ct. 2891, 125 L. Ed. 2d 612 (1993)
(permitting civil § 1 claims against conspiracy occurring entirely in Britain but directed at American insurance market);
United States v. Nippon Paper Indus. Co., 109 F.3d 1 (1st Cir. 1997) (upholding criminal indictment for conspiracy
occurring entirely in Japan to fix price of fax paper in United States).
(n47)Footnote 47. Goldfarb v. Virginia State Bar, 421 U.S. 773, 785, 95 S. Ct. 2004, 2012, 44 L. Ed. 2d 572, 583
(1975) (necessity of title examination to assure valid lien for interstate lenders demonstrated "that interstate commerce
has been sufficiently affected" ) (emphasis supplied). But see discussion of Goldfarb in McLain v. Real Estate Bd. of
New Orleans, Inc., 444 U.S. 232, 244, 100 S. Ct. 502, 510, 62 L. Ed. 2d 441, 452 (1980) .
(n48)Footnote 48. United States v. Azzarelli Constr. Co., 612 F.2d 292, 295 (7th Cir. 1979) , cert. denied, 447 U.S.
920 (1980) .
(n49)Footnote 49. United States v. United States Gypsum Co., 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 2d 854
(1978) , aff'g on other grounds 550 F.2d 115 (3d Cir. 1977) , rev'g 383 F. Supp. 462 (W.D. Pa. 1974) .
(n50)Footnote 50. Current version at 15 U.S.C. § 1.
(n51)Footnote 51. 438 U.S. at 429, 98 S. Ct. at 2869, 57 L. Ed. 2d at 864 .
The indictment against the Gypsum defendants specified some 13 types of action allegedly taken by them in
formulating and effectuating their conspiracy. Although some of these allegations apparently involved straightforward
price-fixing (which would be a classic per se violation of the Sherman Act), the Supreme Court's opinion was devoted
almost in its entirety to that portion of the government's case alleging interseller price verification -- a practice which
the Court categorized as falling within a "gray zone." 438 U.S. at 441, 98 S. Ct. at 2875, 57 L. Ed. 2d at 872 .
Page 20
(n52)Footnote 52. 438 U.S. at 434, 98 S. Ct. at 2872, 57 L. Ed. 2d at 868. (Emphasis in original.)
In United States v. Azzarelli Constr. Co., 612 F.2d 292, 298 (7th Cir. 1979) , cert. denied, 447 U.S. 920 (1980) , the
court affirmed defendants' convictions for bid-rigging in violation of the Sherman Act:
Indeed, 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.S. at 443,
98 S.Ct. at 2876 ], 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.' 438 U.S. at 444, 98 S.Ct. at 2877 . Clearly the appellants were 'consciously
behaving in a way the law prohibits.' 438 U.S. at 445, 98 S.Ct. at 2877 . Their attention was specifically
called to the illegality of collusive bidding when they executed affidavits denying the existence of such
behavior. It is impossible to infer lack of the requisite intent or mens rea in their conduct.
Note that Gypsum was addressed to the adequacy of proof at trial rather than to the sufficiency of the indictment. See
United States v. Campbell Hardware Co., 470 F. Supp. 430, 435 (D. Mass. 1979) (rejecting a challenge to the
sufficiency of an indictment, 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). For cases dealing with the sufficiency of an indictment, see
United States v. Metropolitan Enters., 728 F.2d 444, 453 (10th Cir. 1984) (" 'charge of conspiracy to violate a criminal
law has implicit in it the elements of knowledge and intent' ... . Although the word 'intent' was not expressly used, we
conclude that the Indictment, reading it in its entirety, provides the appellants with sufficient information to adequately
prepare their defense ... .") (citation omitted); United States v. Pike Indus. Inc., 575 F. Supp. 885, 890 (S.D. Vt. 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. This court holds that ... the indictment, by charging agreement, understanding and
concert of action, sufficiently charges an intent to agree."); United States v. Climatemp, Inc., 482 F. Supp. 376, 382
(N.D. Ill. 1979) (bid-rigging indictment sufficient under Gypsum where intent "may be implied from a reading of the
whole indictment"), aff'd, 705 F.2d 461 (7th Cir.) , cert. denied, 462 U.S. 1134 (1983) .
(n55)Footnote 55. United States v. United States Gypsum Co., 438 U.S. at 440-441, 98 S. Ct. at 2875, 57 L. Ed. 2d
at 872 .
In addition to the factors discussed in the text, the Gypsum Court noted another consideration militating for a
construction of the Sherman Act that included intent as an element:
Further, the use of criminal sanctions in such circumstances would be difficult to square with the
generally accepted functions of the criminal law ... . The criminal sanctions would be used, not to punish
conscious and calculated wrongdoing at odds with statutory proscriptions, but instead simply to regulate
business practices regardless of the intent with which they were undertaken. While in certain cases we
have imputed a regulatory purpose to Congress in choosing to employ criminal sanctions, see, e.g.,
United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L. Ed. 604 (1922) , 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.
(n56)Footnote 56. 438 U.S. at 444, 98 S. Ct. at 2877, 57 L. Ed. 2d 854 .

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(n57)Footnote 57. 438 U.S. at 444 n.21, 98 S. Ct. at 2877 n.21, 57 L. Ed. 2d 854 .
(n58)Footnote 58. See, e.g., United States v. Miller, 771 F.2d 1219, 1239 (9th Cir. 1985) .
(n59)Footnote 59. See United States v. Foley, 598 F.2d 1323, 1335 n.13 (4th Cir. 1979) , cert. denied, 444 U.S.
1043 (1980) .
(n60)Footnote 60. See, e.g., United States v. Brown, 936 F.2d 1042, 1046 (9th Cir. 1991) :
The district court's ruling accords with the express holdings of six other circuits, and the intimations
of another, 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. We agree with the conclusion
of the district court and the other circuits that have addressed the issue. (footnote omitted).
(n61)Footnote 61. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S. Ct. 811, 84 L. Ed. 1129 (1949) .
(n62)Footnote 62. United States v. Gillen, 599 F.2d 541, 544 (3d Cir. 1979) . See also United States v. Continental
Bag Group, Inc., 603 F.2d 444, 462 (3d Cir. 1979) , cert. denied, 444 U.S. 1032 (1980) :
It is important to note, as did the Supreme Court in Gypsum, that conspiracy cases actually involve
two types of intent, the intent to agree and the intent to effectuate the object of the agreement. See 438
U.S. at 443 n.20, 98 S.Ct. 2864 . Clearly, it is not sufficient for the government to prove that the
defendants agreed to do something; agreement itself is not illegal. Instead, the government must prove
that the defendants agreed to effectuate an illegal purpose, e.g., to fix prices. This illustrates the crucial
distinction between Gypsum and Gillen. An agreement to exchange prices, by itself, is not illegal; an
agreement to fix prices is.
(n63)Footnote 63. United States v. Koppers Co., 652 F.2d 290, 296 n.6 (2d Cir.) , cert. denied, 454 U.S. 1083
(1981) ("[w]here per se conduct is found, a finding of intent to conspire to commit the offense is sufficient; 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"). See also United States v. Brown, 936 F.2d 1042, 1046 (9th
Cir. 1991) .
(n64)Footnote 64. Antitrust Procedures and Penalties Act, Pub. L. No. 93 528, § 3, 88 Stat. 1706, 1708 (1974)
(current version at 15 U.S.C. §§ 1, 2, and 3).
(n65)Footnote 65. United States v. Foley, 598 F.2d at 1335 . (Gypsum was a misdemeanor case, the indictment
having been brought prior to the effective date of the 1974 amendments.) Accord United States v. Brighton Bldg. &
Maintenance Co., 598 F.2d 1101, 1105 (7th Cir.) , cert. denied, 444 U.S. 840 (1979) .
In Foley, six corporate and three individual defendants were convicted of conspiracy to fix real estate commissions, in
violation of § 1 of the Sherman Act, 15 U.S.C. § 1.
See also United States v. Soc'y of Indep. Gasoline Marketers of Am., 624 F.2d 461 (4th Cir. 1980) , cert. denied, 449
U.S. 1078 (1981) (distinguishing the interseller price verification discussed by the Supreme Court in Gypsum from a
price-fixing conspiracy).
(n66)Footnote 66. See ABA Section of Antitrust Law, Antitrust Law Developments, 714-715 (4th ed. 1997), citing
United States v. International Paper Co., Crim. No. H-78-11 and 12 (S.D. Tex. 1978). In International Paper, the court
stated the following in its instructions:
Page 22
One of the factors you may consider in determining the intent of each corporation, among other
evidence, is whether or not the corporation had an antitrust compliance policy. In this regard, 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. If, however, you find that a corporation acted diligently in
the promulgation, dissemination, and enforcement of an antitrust compliance program in an active good
faith effort to ensure that the employees would abide by the law, you may take this fact into account in
determining whether or not the corporation had the required intent.
ABA Section of Antitrust Law, Jury Instructions in Criminal Antitrust Cases (1976-1980), 190 (1982).
(n67)Footnote 67. See United States v. Basic Constr. Co., 711 F.2d 570, 573 (4th Cir.) , cert. denied, 464 U.S. 956
(1983) (per curiam) (Gypsum does not "change [] the law on corporate antitrust liability for the acts of its employees").
See also United States v. Koppers Co., 652 F.2d 290, 298 (2d Cir.) , cert. denied, 454 U.S. 1083 (1981) .
(n68)Footnote 68. See ABA Section of Antitrust Law, Antitrust Law Developments 714 (4th ed. 1997).
(n69)Footnote 69. See 21 Cong. Rec. 2457, 2460 (1890) (remarks of Senator Sherman).
(n70)Footnote 70. See Standard Oil Co. v. United States, 221 U.S. 1, 60, 31 S. Ct. 502, 55 L. Ed. 619 (1911) ;
United States v. American Tobacco Co., 221 U.S. 106, 179, 31 S. Ct. 632, 55 L. Ed. 663 (1911) .
(n71)Footnote 71. Northern Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S. Ct. 514, 2 L. Ed. 2d 545 (1958) (due to
their "pernicious effect" or "lack of redeeming virtue," certain agreements are conclusively presumed unreasonable
without inquiry into the harm caused or the asserted business justification).
Examples of per se violations include market allocations (see United States v. Topco Assocs., 405 U.S. 596, 601, 92 S.
Ct. 1126, 31 L. Ed. 2d 515 (1972)) , (see Int'l Salt Co. v. United States, 332 U.S. 392, 396, 68 S. Ct. 12, 92 L. Ed. 20
(1947)) , and price-fixing (see United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S. Ct. 811, 84 L. Ed.
1129 (1940)) .
See generally above P 19.02[3].
(n72)Footnote 72. United States v. Trenton Potteries Co., 273 U.S. 392, 397-98, 47 S. Ct. 377, 71 L. Ed. 700
(1927) .
(n73)Footnote 73. United States v. Brown University, 5 F.3d 658 (3d Cir. 1993) .
(n74)Footnote 74. 5 F.3d at at 669.
(n75)Footnote 75. See NCAA v. Board of Regents, 468 U.S. 85, 104 (1984) ("while the court has spoken of a 'per
se' rule against tying arrangements, it has also recognized that tying may have procompetitive justifications that make it
inappropriate to condemn without considerable market analysis"); Betaseed, Inc. v. U&I Inc., 681 F.2d 1203, 1215 (9th
Cir. 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.' ") (citation omitted).
(n76)Footnote 76. California Dental Ass'n v. Federal Trade Comm'n, 526 U.S. 756, 119 S. Ct. 1604, 1613, 1617,
143 L. Ed. 2d 935 (1999) .
(n77)Footnote 77. 526 U.S. at 780, 119 S. Ct. at 1617 (quoting P. Areeda, Antitrust Law P 1507, p. 402 (1986)).
(n78)Footnote 78. 526 U.S. at 781, 119 S. Ct. at 1618 .

Page 23
(n79)Footnote 79. 526 U.S. at 771, 119 S. Ct. at 1613 .
(n80)Footnote 80. See, e.g., United States v. New Departure Mfg. Co., 204 F. 107, 114-115 (W.D.N.Y. 1913) ;
United States v. Patterson, 201 F. 697, 706-707 (S.D. Ohio 1912) , cert. denied, 238 U.S. 635 , rev'd on other grounds,
222 F. 599 (6th Cir. 1915) ; United States v. Winslow, 195 F. 578, 583-584 (D. Mass. 1912) ; United States v. American
Naval Stores Co., 186 F. 592, 593 (S.D. Ga. 1909) .
(n81)Footnote 81. Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L. Ed. 1232 (1913) .
The Nash defendants were convicted under the Sherman Act for conspiring to restrain trade in and to monopolize the
turpentine trade. The means alleged included price-fixing.
(n85)Footnote 85. Antitrust Procedures and Penalties Act, Pub. L. No. 93-528, § 3, 88 Stat. 1708 (1974) (codified
at 15 U.S.C. §§ 1-3).
(n86)Footnote 86. See, e.g., United States v. Miller, 771 F.2d 1219, 1225 (9th Cir. 1985) :
[The defendant] argues that section one is unconstitutionally vague because it fails to provide fair
notice of the conduct which it proscribes. Although [the defendant] concedes that the constitutionality of
section one was sustained against vagueness challenges shortly after its enactment, 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.
[The defendant's] contention is frivolous. 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. 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.
The indictment charges [the defendant] with price-fixing. Because price-fixing has repeatedly been
held to be per se illegal under the Sherman Act, [the defendant] could not have had any reasonable doubt
that his conduct violated section one.
See also United States v. Foley, [1977-2] Trade Cas. (CCH) P 61,678 (D. Md. 1977), aff'd 598 F.2d 1323, (4th Cir.
1979) , cert. denied, 444 U.S. 1043 (1980) .
(1978) .
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. The Gypsum indictments were
returned prior to the effective date of the 1974 amendments, thus resulting in application of the earlier misdemeanor
penalty sections. The Supreme Court, however, took note of the severity of the new sanctions, stating that they provided
"further support" for the Court's "conclusion that the Sherman Act should not be construed as creating strict-liability
crimes." 428 U.S. at 442 n.18, 98 S. Ct. at 2876 n.18, 57 L. Ed. 2d at 873 n.18 .
Page 24
(n88)Footnote 88. 438 U.S. at 437-443, 98 S. Ct. at 2874-2876, 57 L. Ed. 2d at 870-873 .
(n89)Footnote 89. See Emilie F. Athanasoulis, Note, Is the Sherman Act Unconstitutionally Vague as a Criminal
Statute? A Re-evaluation After Gypsum, 13 Suffolk U.L. Rev. 1284 (1979).
(n90)Footnote 90. See, e.g., United States v. Powell, 423 U.S. 87, 92, 96 S. Ct. 316, 319, 46 L. Ed. 2d 228, 233
(1975) ; United States v. Mazurie, 419 U.S. 544, 550, 95 S. Ct. 710, 714, 42 L. Ed. 2d 706, 713 (1975) ; United States v.
National Dairy Prods. Corp., 372 U.S. 29, 36, 83 S. Ct. 594, 599, 9 L. Ed. 2d 561, 568 (1963) .
(n91)Footnote 91. Charles F. Rule, 60 Minutes With Charles F. Rule, Assistant Attorney General Antitrust Division
(1988), reprinted in 57 Antitrust L.J. 257, 261 (1988); see also Donald I. Baker, To Indict or Not to Indict:
Prosecutorial Discretion in Sherman Act Enforcement, 63 Cornell L. Rev. 405 (1979).
(n92)Footnote 92. Parker v. Brown, 317 U.S. 341, 63 S. Ct. 307, 87 L. Ed. 315 (1943) .
(n93)Footnote 93. 317 U.S. at 352, 63 S. Ct. at 314, 87 L. Ed. at 326-327 .
(n96)Footnote 96. See, e.g., Bankers Ins. Co. v. Florida Residential Property and Casualty JointUnderwriting
Ass'n, 137 F.3d 1293, 1296-1297 (11th Cir. 1998) (per curiam) (state action immunity where state statute created
association of insurance companies and forced them to insure privately uninsurable individuals); Crosby v. Hospital
Auth. of Valdosta and Lowndes County, 93 F.3d 1515, 1518-1525 (11th Cir. 1996) , cert. denied, 520 U.S. 1116 (1997)
(state action immunity for county hospital authority created by state); Town of Hallie v. City of Eau Claire, 471 U.S. 34,
38-47, 105 S. Ct. 1713, 1716-1721, 85 L. Ed. 2d 24 (1985) (Wisconsin city's tying of sewage treatment and
transportation services exempt from federal antitrust scrutiny because clearly authorized by Wisconsin); Southern
Motor Carriers Rate Conference v. United States, 471 U.S. 48, 105 S. Ct. 1721, 85 L. Ed. 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); Hoover v. Ronwin, 466 U.S. 558, 581, 104 S. Ct. 1989, 80 L. Ed. 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, and thus reduced the number of competing attorneys; actions of Committee were, in
essence, actions of Arizona Supreme Court, making them state authorized actions); New Motor Vehicle Bd. v. Orrin W.
Fox Co., 439 U.S. 96, 99 S. Ct. 403, 58 L. Ed. 2d 361 (1978) (California program requiring state approval of the
location of new automobile dealerships immune from antitrust liability); Bates v. State Bar of Arizona, 433 U.S. 350,
362, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977) (Arizona's rules against lawyer advertising immune from Sherman Act
challenge); ABA Antitrust Section, 1998 Annual Review of Antitrust Law Developments 369-377 (1999). But see
California Retail Liquor Dealers Ass'n v. Midcal Aluminum, 445 U.S. 97, 100 S. Ct. 937, 63 L. Ed. 2d 233 (1980)
(California law authorizing vertical resale price maintenance for wine preempted by Sherman Act because of
insufficient state involvement in price-setting); 324 Liquor Corp. v. Duffy, 479 U.S. 335, 343-351, 107 S. Ct. 720,
727-29, 93 L. Ed. 2d 667 (1987) (New York state law requiring liquor retailers to charge at least 112% of "posted"
wholesaleprice, designed to protect small retailers, not justified by state interest sufficient to override Sherman Act);
Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S. Ct. 3110, 49 L. Ed. 2d 1141 (1976) (no antitrust immunity conferred
when a state agency passively accepted a public utility's tariffs); Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S. Ct.
2004, 44 L. Ed. 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).
See generally, Stephen C. Sherrill, Note, Parker v. Brown Revisited: The State Action Doctrine After Goldfarb,
Cantor, and Bates, 77 Colum. L. Rev. 898 (1977).
(n97)Footnote 97. California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S. Ct.
Page 25
937, 943, 63 L. Ed. 2d 233, 243 (1980) (citing City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 410, 98
S. Ct. 1123, 55 L. Ed. 2d 364 (1978) (opinion of Brennan, J.). But cf. Local Government Antitrust Act of 1984, Pub. L.
No. 98-544, § 3, 98 Stat. 2750 (1984) (codified at 15 U.S.C. § 35) (granting immunity from damages under §§ 4, 4A
and 4C of Clayton Act to local governments and officials who are acting in their official capacity); Town of Hallie v.
City of Eau Claire, 445 U.S. 34, 36, 105 S. Ct. 1713, 1720, 85 L. Ed. 2d 24 (1985) ( "active supervision" is unnecessary
where actor is municipality).
(n98)Footnote 98. California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S. Ct.
937, 943, 63 L. Ed. 2d 233, 243 (1980)
(n99)Footnote 99. 445 U.S. at 106, 100 S. Ct. at 943-944, 63 L. Ed. 2d at 243 .
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. 445 U.S. at 114, 100 S. Ct. at 948, 63 L. Ed.
2d at 248-249 .
(n100)Footnote 100. Act of Oct. 15, 1914, ch. 323, § 6, 38 Stat. 731 (current version at 15 U.S.C. § 17).
15 U.S.C. § 17 provides in full as follows:
The labor of a human being is not a commodity or article of commerce. Nothing contained in the
antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or
horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or
conducted for profit, or to forbid or restrain individual members of such organizations from lawfully
carrying out the legitimate objects thereof, nor shall such organizations, or the members thereof, be held
or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.
(n101)Footnote 101. See Allen-Bradley Co. v. Local 3, 325 U.S. 797, 810-811, 65 S. Ct. 1533, 89 L. Ed. 1939
(1945) ; H.A. Artists & Assoc., Inc. v. Actors' Equity Ass'n, 451 U.S. 704, 722, 101 S. Ct. 2102, 2112-2113, 68 L. Ed. 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).
(n102)Footnote 102. See Williams v. St. Joseph Hosp., 629 F.2d 448, 453 n.8 (7th Cir. 1980) .
(n103)Footnote 103. Act of Aug. 23, 1958, Pub. L. No. 85-726, tit. IV, § 412(a), (b), 72 Stat. 731; added to by Act
of Oct. 24, 1978, Pub. L. No. 95-504, § 28(c), 92 Stat. 1729; Act of Feb. 15, 1980, Pub. L. No. 96-192, § 11, 94 Stat.
39; amended by Act of July 5, 1994, Pub. L. No. 103-272, § 1(e), 108 Stat. 1129 (current version at 49 U.S.C.A. §
41309(a)).
(n104)Footnote 104. Act of Aug. 23, 1958, Pub. L. No. 85-726, tit. IV, § 412(a), (b), 72 Stat. 731; added to by Act
of Oct. 24, 1978, Pub. L. No. 95-504, § 28(c), 92 Stat. 1729; Act of Feb. 15, 1980, Pub. L. No. 96-192, § 11, 94 Stat.
39; amended by Act of July 5, 1994, Pub. L. No. 103-272, § 1(e), 108 Stat. 1129 (current version at 49 U.S.C.A. §
41309(b)).
(n105)Footnote 105. Act of Aug. 23, 1958, restated by Act of Oct. 24, 1978, Pub. L. No. 95-504, § 30(a), 92 Stat.
1731; Pub. L. No. 85-726, § 414, 72 Stat. 770; Act of Feb. 15, 1980, Pub. L. No. 96-192, § 27, 94 Stat. 47, amended by
Act of July 5, 1994, Pub. L. No. 103-272, § 1(e), 108 Stat. 1128 (current version at 49 U.S.C.A. § 41308).
(n106)Footnote 106. As that phrase is defined in § 1 of the Clayton Act (current version at 15 U.S.C. § 12).
(n107)Footnote 107. See also Brown v. Pro Football, Inc., 518 U.S. 231, 116 S. Ct. 2116, 135 L. Ed. 2d 521 (1996)
Page 26
("nonstatutory" antitrust exemption implicit in U.S. 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); United States
v. Daily Gazette Co., 567 F. Supp. 2d 859 (S.D. W. Va. 2008) (analyzing Newspaper Preservation Act, 15 U.S.C.S. §§
1801-1804, as narrow exemption from antitrust laws).
(n108)Footnote 108. See United States v. Braniff Airways, Inc., 428 F. Supp. 579, 586-89 (W.D. Tex. 1977)
(Sherman Act indictments against certificated interstate airline carriers; indictments dismissed on other grounds).
(n109)Footnote 109. The mere existence of federal regulatory authority over a particular industry is not sufficient
to imply antitrust immunity. "The Court has never held ... 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." Gordon
v. New York Stock Exch., 422 U.S. 659, 692, 95 S. Ct. 2598, 2616, 45 L. Ed. 2d 463, 485 (1975) (Stewart, J.,
concurring), quoted in Cantor v. Detroit Edison Co., 428 U.S. 579, 596 n.36, 96 S. Ct. 3110, 3120, n.36, 49 L. Ed. 2d
1141 (1976) .
(n110)Footnote 110. Gordon v. New York Stock Exch, 422 U.S. at 682, 95 S. Ct. at 2611, 45 L. Ed. 2d at 479
(quoting United States v. Philadelphia Nat'l Bank, 374 U.S. 321, 350-351, 83 S. Ct. 1715, 1734-1735, 10 L. Ed. 2d 915,
937-938 (1963)) .
In Gordon, a group of investors challenged the system of fixed stock commission rates as violative of the antitrust
laws. The Supreme Court, noting that the Securities Exchange Commission (SEC) had sanctioned the system, rejected
the challenge. The Court held that Congress, in enacting the Securities Exchange Act, intended to leave supervision of
the fixing of reasonable rates of commission to the SEC and thusimpliedly immunized the practice from antitrust
challenge. 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. Trenton
Potteries Co., 273 U.S. 392, 47 S. Ct. 377, 71 L. Ed. 700 [1927]) ; and (2) the SEC actively supervised and approved the
fixing of commission rates over a period of years. 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." Gordon, 422 U.S. at 691, 95 S. Ct. at 2615, 45 L. Ed. 2d at 484 .
See generally United States v. National Ass'n of Secs. Dealers, 422 U.S. 694, 719 20, 729-730, 95 S. Ct. 2427, 45 L.
Ed. 2d 486 (1975) ; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 126, 94 S. Ct. 383, 389, 38 L.
Ed. 2d 348 (1973) .
(n111)Footnote 111. United States v. National Ass'n of Secs. Dealers, 422 U.S. at 720, 95 S. Ct. at 2443, 45 L. Ed.
2d at 505 ; Gordon v. New York Stock Exch., 422 U.S. at 683, 95 S. Ct. at 2612, 45 L. Ed. 2d at 479 .
In National Ass'n of Secs. Dealers, 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, 15 U.S.C. § 80a 1 et seq. 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, particularly in view of the SEC's consistent approval of
agreements related to the subject matter of the antitrust action.
(n112)Footnote 112. National Gerimedical Hosp. and Gerontology Center v. Blue Cross of Kansas City, 452 U.S.
378, 389 (1981) (quoting Silver v. New York Stock Exch., 373 U.S. 341, 357, 83 S. Ct. 1246, 10 L. Ed. 2d 389 (1963)) ;
see also Austin Mun. Sec., Inc. v. Nat'l Ass'n. of Sec. Dealers, 757 F.2d 676, 694-96 (5th Cir. 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 [,]" the court noted that "[i]mplicit repeal of the antitrust laws is not
favored, and is justified only by a clear showing of repugnancy between the antitrust laws and the regulatory system").
Page 27
(n113)Footnote 113. Gordon v. New York Stock Exch., 422 U.S. at 688, 95 S. Ct. at 2614, 45 L. Ed. 2d at 482 .
(n114)Footnote 114. See, e.g., Silver v. New York Stock Exch., 373 U.S. 341 (securities); Otter Tail Power Co. v.
United States, 410 U.S. 366, 93 S. Ct. 1022, 35 L. Ed. 2d 359 (1973) (generation and transmission of electric power);
United States v. Philadelphia Nat'l Bank, 374 U.S. 321 (national banking); United States v. Radio Corp. of America, 358
U.S. 334, 79 S. Ct. 457, 3 L. Ed. 2d 354 (1959) (national broadcasting).
(n115)Footnote 115. Gordon v. New York Stock Exch. 422 U.S. 659 ; United States v. National Ass'n of Sec.
Dealers, Inc., 422 U.S. 694 ; Austin Mun. Sec., Inc. v. Nat'l Ass'n of Sec. Dealers, 757 F.2d 676 .
(n116)Footnote 116. Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 93 S. Ct. 647, 34 L. Ed. 2d 577
(1973) ; Pan Am. World Airways, Inc. v. United States, 371 U.S. 296, 83 S. Ct. 476, 9 L. Ed. 2d 325 (1963) . Hughes has
been cited favorably in two recent district court opinions. See Virgin Atlantic Airways Ltd. v. British Airways Plc, 872
F. Supp. 52, 62-63 (S.D.N.Y. 1994) ; International Travel Arrangers v. NWA, Inc., 723 F. Supp. 141 (D. Minn. 1989) ,
aff'd in part, rev'd in part on other grounds, 991 F.2d 1389 (8th Cir.) , cert. denied, 510 U.S. 932 (1993) .
(n117)Footnote 117. See United States v. United States Gypsum Co., 600 F.2d 414, 417 n.2 (3d Cir. 1979) , cert.
denied, 444 U.S. 884 (1979) .
18 U.S.C. § 3282 provides in full as follows:
Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for
any offense, not capital, unless the indictment is found or the information is instituted within five years
next after such offense shall have been committed.
In contrast, pursuant to section 4B of the Clayton Act, private antitrust actions must be brought within a four year
period. 15 U.S.C. § 15b (1988). Interestingly, 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. See 15 U.S.C. § 16(i) (1988).
(n118)Footnote 118. United States v. United States Gypsum Co., 600 F.2d 414 .
(n119)Footnote 119. United States v. Kissel, 218 U.S. 601, 31 S. Ct. 124, 54 L. Ed. 1168 (1910) .
Writing for the Court in Kissel, 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, and there is such continuous co-operation, it is
a perversion of natural thought and of natural language to call such continuous co-operation a
cinematographic series of distinct conspiracies, rather than to call it a single one. Take the present case.
A conspiracy to restrain or monopolize trade by improperly excluding a competitor from business
contemplates that the conspirators will remain in business, and will continue their combined efforts to
drive the competitor out until they succeed. If they do continue such efforts in pursuance of the plan, the
conspiracy continues up to the time of abandonment or success. A conspiracy in restraint of trade is
different from and more than a contract in restraint of trade. A conspiracy is constituted by an agreement,
it is true, but it is the result of the agreement, rather than the agreement itself, just as a partnership,
although constituted by a contract, is not the contract, but is a result of it. The contract is instantaneous,
the partnership may endure as one and the same partnership for years. A conspiracy is a partnership in
criminal purposes. 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.
Page 28
218 U.S. at 607-608, 31 S. Ct. at 126, 54 L. Ed. at 1178-1179 . See also Pennsylvania Dental Ass'n. v. Medical Serv.
Ass'n. of Pa., 815 F.2d 270 (3d Cir.) cert. denied, 484 U.S. 851 (1987) (finding that each new resolution passed by
dentists in furtherance of a group boycott restarted the statute of limitations).
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. United States v. United States Gypsum Co., 600
F.2d at 418 .
(n120)Footnote 120. United States v. United States Gypsum Co., 438 U.S. 422, 464-465, 98 S. Ct. 2864, 2887, 57
L. Ed. 2d 854, 886 (1978) (citations omitted). See also United States v. MMR Corp (LA), 907 F.2d 489, 500 (5th Cir.
1990) , cert. denied, 499 U.S. 936 (1991) .
(1978) .
(n122)Footnote 122. 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,
1968, you must find, from the evidence, that he or it took some affirmative action to disavow or defeat its
purpose. Mere inaction would not be enough to demonstrate abandonment. To withdraw, 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, or he
must make disclosures of the illegal scheme to law enforcement officials.
Thus, once a defendant is shown to have joined a conspiracy, in order for you to find he abandoned
the conspiracy, the evidence must show that the defendant took some definite, decisive step, indicating a
complete disassociation from the unlawful enterprise.
438 U.S. at 463-464, 98 S. Ct. at 2887, 57 L. Ed. 2d at 886 (emphasis in original).
The Gypsum defendants had requested this charge:
Because the gist of the offense charged is a continuing agreement to raise, fix, maintain and stabilize
prices of gypsum products, it is essential for you to determine what kind of agreement or understanding,
if any, existed as to each defendant. 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. No defendant is to be held responsible for what some of the alleged conspirators,
unknown to the rest, do beyond the reasonable intendment of the common agreement or understanding, if
any, to which you may find him or it a party.
550 F.2d 115, 128-129 n.13 (3d Cir. 1977) (emphasis omitted).
(n123)Footnote 123. 438 U.S. at 464, 98 S. Ct. at 2887, 57 L. Ed. 2d at 886 (footnote omitted).
(n124)Footnote 124. 438 U.S. at 464, 98 S. Ct. at 2887, 57 L. Ed. 2d at 886 (footnote omitted).
(n125)Footnote 125. U.S. Const. amend. V.
(n126)Footnote 126. United States v. Hudson, 522 U.S. 93, 103-104, 118 S. Ct. 488, 495, 139 L. Ed. 2d 450 (1997)
Page 29
(citation omitted) (reaffirming United States v. Ward, 448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980)) .
(n127)Footnote 127. Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963) ; United
States v. Podde, 105 F.3d 813, 816 (2d Cir. 1997) ; Gilliam v. Foster, 75 F.3d 881, 893 n.13 (4th Cir. 1996) .
(n128)Footnote 128. See Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 1062, 43 L. Ed. 2d 265, 275
(1975) .
(n129)Footnote 129. Wade v. Hunter, 336 U.S. 684, 69 S. Ct. 834, 93 L. Ed. 974 (1949) ; United States v. Isom, 88
F.3d 920, 923 (11th Cir. 1996) .
(n130)Footnote 130. Monge v. California, 524 U.S. 721, 729, 118 S. Ct. 2246, 2251, 141 L. Ed. 2d 615 (1998) ;
Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978) (Double Jeopardy Clause precludes retrial
where conviction was reversed because of insufficiency of evidence). Cf. United States v. Scott, 437 U.S. 82, 98 S. Ct.
2187, 57 L. Ed. 2d 65 (1978) (Double Jeopardy Clause did not preclude government appeal of district court order,
entered after evidence was closed, granting defense motion for dismissal because of prosecutorial delay).
The application of Burks in an antitrust context can be seen in United States v. United States Gypsum Co., 600 F.2d
414 (3d Cir.) , cert. denied, 444 U.S. 884 (1979) . After the Supreme Court reversed defendants' convictions because of
errors in the district court's jury instructions ( 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 2d 854 [1978]) , defendants moved
the district court for judgments of acquittal, contending that the evidence introduced at the first trial was insufficient to
support the convictions. Their motion was denied by the district court. Proceeding under the collateral order exception
to the final judgment rule (see Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 [1977]) ,
defendants took an immediate appeal to the Third Circuit. That court, however, affirmed the district court.
(n131)Footnote 131. See United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 2856, 125 L. Ed. 2d 556 (1993)
(test is referred to as "same elements" test and "Blockburger" test); see also United States v. Forman, 180 F.3d 766,
768-769 (6th Cir. 1999) (citing Dixon).
In addition to reiterating the "same elements" test, the Court in Dixon, overruled Grady v. Corbin, 495 U.S. 508, 110
S. Ct. 2084, 109 L. Ed. 2d 548 (1990) . In Grady, the Court had held that when a defendant is punished for two offenses,
the second offense must satisfy not only the "same elements" test, but also the "same conduct" test. The "same conduct"
test provides that, "if, to establish an essential element of the offense charged in the prosecution, the government will
prove conduct that constitutes an offense for which the defendant has already been prosecuted," a second prosecution
may not go forward. 495 U.S. at 510, 110 S. Ct. at 2085 . In Dixon, however, 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." Dixon, 113 S. Ct. at 2860 (citations omitted). Therefore, the Court decided to overrule Grady by
holding that subsequent prosecutions need not pass the "same conduct" test to avoid the double jeopardy bar. 113 S. Ct.
at 2860 .
(n132)Footnote 132. See, e.g., United States v. Wilshire Oil Co., 427 F.2d 969, 975 (10th Cir.) , cert. denied, 400
U.S. 829 (1970) :
On the proposition that Wilshire and others were convicted in a federal court for participation in an
asphalt conspiracy in Missouri, it is contended that the prosecution here twice places Wilshire in
jeopardy. Appellant's basic plea is that the government is attempting to splinter a single conspiracy into
two parts, i.e., a Missouri conspiracy and a Kansas conspiracy, when in fact and law the two are but
fragments of a single scheme. The indictments in Kansas and Missouri are in some respects identical,
with the following relevant exceptions. (1) Different parties are named in each: there are eight
corporations common to both; two were named in Kansas and not in Missouri; ten corporate and
seventeen individual defendants were named in Missouri and not in Kansas. (2) There are overlapping
Page 30
but different dates of existence: in Missouri it was from 1960-1963 and in Kansas from 1959-1965. (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';
***
the Kansas indictment charged the co-conspirators and defendants with conspiring 'to fix, maintain,
and establish non-competitive prices for the sale of liquid asphalt to the State of Kansas.' "
***
(n133)Footnote 133. 427 F.2d at 976 . The Tenth Circuit concluded its analysis in Wilshire by affirming
defendant's conviction. 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. 427 F.2d at 977 . See also
United States v. Sargent Elec. Co., 785 F.2d 1123, 1126 (3d Cir.) , cert. denied, 479 U.S. 819 (1986) ("classif[ying] as a
legal issue, subject to plenary review, the question whether ... an inference of multiple conspiracies rather than a single
conspiracy was permissible [,]" and finding that separate indictments for bid rigging at different steel mills was
permissible where each was a separate market). But cf. United States v. Beachner Constr. Co., 729 F.2d 1278, 1283
(10th Cir. 1984) (single conspiracy); United States v. Yonkers Contracting Co., 706 F. Supp. 296, 298-99 (S.D.N.Y.
1989) (the question whether there is a single conspiracy or multiple conspiracies is one of fact, and should be made by
the jury).
(n134)Footnote 134. See e.g., Cal. Bus. & Prof. Code § 16755 (1987 & Supp. 1995); Fla. Stat. § 542.21 (1988);
Ill. Rev. Stat. ch. 740, § 10/6 (1995); N.Y. Gen. Bus. Law § 341 (1988); Ohio Rev. Code Ann. § 1331.99 (1994).
(n135)Footnote 135. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969) .
(n136)Footnote 136. United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079, 55 L. Ed. 2d 303 (1978) ; Abbate v.
United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959) ; United States v. Lanza, 260 U.S. 377, 43 S. Ct. 141,
67 L. Ed. 314 (1922) ; Houston v. Moore, 18 U.S. (5 Wheat.) 1, 5 L. Ed. 19 (1820) .
(n137)Footnote 137. See, e.g., N.Y. Crim. Proc. Law §§ 40.20 to 40.30 (1995).
(n138)Footnote 138. See, e.g., Ill. Rev. Stat. ch. 740, § 10/6 (3) (1995) ("The Attorney General shall not commence
prosecutions under this [Antitrust] Act against any defendant who, at the time is a defendant with regard to any current
pending complaint, information or indictment filed by the United States for violation, or alleged violation, of the
Federal Anti-Trust Statute.")
(n139)Footnote 139. American Column & Lumber Co. v. United States, 257 U.S. 377, 42 S. Ct. 114, 66 L. Ed. 284
(1921) .
(n140)Footnote 140. The American Column Court emphasized that, in arriving at its holding, 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, as they are proved in this record, an 'Open Competition Plan'
of action, is plainly a misleading misnomer.
Genuine competitors do not make daily, weekly, and monthly reports of the minutest details of their
business to their rivals, as the defendants did; they do not contract, as was done here, to submit their
books to the discretionary audit and their stocks to the discretionary inspection of their rivals for the
Page 31
purpose of successfully competing with them; and they do not submit the details of their business to the
analysis of an expert, jointly employed, and obtain from him a 'harmonized' estimate of the market as it
is and as, in his specially and confidentially informed judgment, it promises to be. This is not the conduct
of competitors, but is so clearly that of men united in an agreement, express or implied, to act together
and pursue a common purpose under a common guide, that, if it did not stand confessed a combination to
restrict production and increase prices in interstate commerce, and as, therefore, a direct restraint upon
that commerce, as we have seen that it is, that conclusion must inevitably have been inferred from the
facts which were proved. To pronounce such abnormal conduct on the part of 365 natural competitors,
controlling one third of the trade of the country in an article of prime necessity, a 'new form of
competition,' and not an old form of combination in restraint of trade, as it so plainly is, 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.
The 'Plan' is, essentially, simply an expansion of the gentleman's agreement of former days, skilfully
devised to evade the law. To call it open competition because the meetings were nominally open to the
public, or because some voluminous reports were transmitted to the Department of Justice, or because no
specific agreement to restrict trade or fix prices is proved, 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, without having any specific
agreement with respect to them, and to rely for maintenance of concerted action in both respects not
upon fines and forfeitures, as in earlier days, but upon what experience has shown to be the more potent
and dependable restraints, of business honor and social penalties, -- cautiously reinforced by many and
elaborate reports, 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, as evidenced in the minute reports of what they had done, and in
their expressed purposes as to what they intended to do.
257 U.S. at 410-411, 42 S. Ct. at 120-121, 66 L. Ed. at 295 .
(n141)Footnote 141. United States v. American Linseed Oil Co., 262 U.S. 371, 43 S. Ct. 607, 67 L. Ed. 1035
(1923) .
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.
(n142)Footnote 142. Maple Flooring Ass'n v. United States, 268 U.S. 563, 45 S. Ct. 578, 69 L. Ed. 1093 (1925) .
In Maple Flooring, another civil action in which the government sought to halt the activities of a trade association, 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, the volume of production, the
actual price which the product has brought in past transactions, stocks of merchandise on hand,
approximate cost of transportation from the principal point of shipment to the points of consumption, as
did these defendants, and who, as they did, meet and discuss such information and statistics without,
however, reaching or attempting to reach any agreement or any concerted action with respect to prices or
production or restraining competition, do not thereby engage in unlawful restraint of commerce.
Page 32
286 U.S. at 586, 45 S. Ct. at 586, 69 L. Ed. at 1103-1104 .
(n143)Footnote 143. Cement Mfrs. Protective Ass'n v. United States, 268 U.S. 588, 45 S. Ct. 586, 69 L. Ed. 1104
(1925) (civil action).
(n144)Footnote 144. United States v. Container Corp., 393 U.S. 333, 334, 89 S. Ct. 510, 511, 21 L. Ed. 2d 526,
528 (1969) (civil action charging that exchange of information among competitors constituted a price-fixing agreement
in violation of § 1 of the Sherman Act).
(n145)Footnote 145. 393 U.S. 333 .
(n146)Footnote 146. See, e.g., United States v. United States Gypsum Co., 550 F.2d 115 (3d Cir. 1977) , aff'd on
other grounds, 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978) ; Belliston v. Texaco, Inc., 455 F.2d 175, 181 82
(10th Cir. 1972) ; Wall Prods. Co. v. National Gypsum Co., 326 F. Supp. 295, 312-315 (N.D. Cal. 1971) .
Section 2(a) of the Robinson-Patman Act (current version at 15 U.S.C. § 13 [a]) prohibits sellers from discriminating
in price between different purchasers of the same commodity. Section 2(b) (current version at 15 U.S.C. § 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, or the
services or facilities furnished by a competitor." (The full text of these sections is reproduced below App. P 19E).
(1978) .
(n148)Footnote 148. 438 U.S. at 453, 98 S. Ct. at 2881, 57 L. Ed. 2d at 879 . The Court added:
While casual reliance on uncorroborated reports of buyers or sales representativeswithout further

investigation may not, as we noted earlier, be sufficient to make the requisite showing of good faith,
nothing in the language of § 2(b) or the gloss on that language in [ FTC v. Staley Mfg. Co., 324 U.S. 746,
65 S. Ct. 971, 89 L. Ed. 1338 (1945)] and [ Corn Products Co. v. FTC, 324 U.S. 726, 65 S. Ct. 961, 89 L.
Ed. 1320 (1945)] indicates that direct discussions of price between competitors are required.
(n149)Footnote 149. See 438 U.S. at 455-457, 98 S. Ct. at 2882-2884, 57 L. Ed. 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. 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. As an abstract proposition, resort to
interseller verification as a means of checking the buyer's reliability seems a possible solution to the
seller's plight, but careful examination reveals serious problems with the practice.
Both economic theory and common human experience suggest that interseller verification -- if
undertaken on an isolated and infrequent basis with no provision for reciprocity or cooperation -- will not
serve its putative function of corroborating the representations of unreliable buyers regarding the
existence of competing offers. Price concessions by oligopolists generally yield competitive advantages
only if secrecy can be maintained; when the terms of the concession are made publicly known, other
competitors are likely to follow and any advantage to the initiator is lost in the process. [Citations
omitted.] Thus, if one seller offers a price concession for the purpose of winning over one of his
competitor's customers, 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. Instead, such a seller would appear to
Page 33
have at least as great an incentive to misrepresent the existence or size of the discount as would the buyer
who received it. Thus verification, if undertaken on a one shot-basis for the sole purpose of complying
with the § 2(b) defense, does not hold out much promise as a means of shoring up buyers'
representations.
The other variety of interseller verification is, like the conduct charged in the instant case,
undertaken pursuant to an agreement, either tacit or express, providing for reciprocity among competitors
in the exchange of price information. Such an agreement would make little economic sense, in our view,
if its sole purpose were to guarantee all participants the opportunity to match the secret price concessions
of other participants under § 2(b). For in such circumstances, 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, therefore, have any incentive for deviating from the
prevailing price level in the industry. See United States v. Container Corp., 393 U.S. at 336-337, 89 S.
Ct. 510, 21 L. Ed. 2d 526 , Regardless of its putative purpose, the most likely consequence of any such
agreement to exchange price information would be the stabilization of industry prices. See Scherer,
supra, at 449 ; Note, Antitrust Liability for an Exchange of Price Information -- What Happened to
Container Corp. 63 Va. L. Rev. 639, 666 (1977). Instead of facilitating use of the § 2(b) defense, 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.
(n150)Footnote 150. See, e.g., 7-Up Bottling Co. of Jasper, Inc. v. Archer-Daniels Midland Co. ( In re Citric Acid
Litig.), 191 F.3d 1090, 1099 (9th Cir. 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"); In re Baby Food Antitrust Litig., 166 F.3d 112, 124-126 (3d Cir.
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); Wilcox v. First Interstate Bank, 815 F.2d 522, 526-527 (9th
Cir. 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"); Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1505 (11th Cir.
1985) , cert. denied, 475 U.S. 1107 (1986) (price data exchange, without agreement to fix prices held lawful).
(n151)Footnote 151. Act of July 7, 1955, Pub. L. No. 135, 69 Stat. 282 (current version at 15 U.S.C. §§ 1-3).
(n152)Footnote 152. Pub. L. No. 93-528, § 3, 88 Stat. 1708 (1974) (current version at 15 U.S.C. §§ 1-3).
(n153)Footnote 153. See H.R. Rep. No. 93-1463, 93d Cong., 2d Sess. 5, reprinted in [1974] U.S. Code Cong. &
Ad. News 6535, 6540.
(n154)Footnote 154. Pub. L. No. 101-588, § 4(a), 104 Stat. 2879 (1990).
(n155)Footnote 155. See S. Rep. No. 101-287, 101st Cong., 2d Sess., reprinted in [1990] U.S. Code Cong & Ad.
News 4100, 4108.
(n156)Footnote 156. 15 U.S.C. § 6 (1988).
(n157)Footnote 157. Constance K. Robinson, Deputy Director of Operations, Antitrust Division, U.S. Department
of Justice, Communications Among Competitors -- When Does the Department of Justice Challenge?, Address Before
the ABA Section of Antitrust Law (Oct. 14-15, 1993) at 13, available from The Antitrust Division, The United States
Department of Justice.
Page 34
(n159)Footnote 159. 92 Civ. No. 3700 (S.D.N.Y. filed May 20, 1992) cited in Constance K. Robinson, Deputy
Director of Operations, Antitrust Division, U.S. Department of Justice, Communications Among Competitors -- When
Does the Department of Justice Challenge?, Address Before the ABA Section of Antitrust Law (Oct. 14-15, 1993) at 13,
available from The Antitrust Division, The United States Department of Justice.
(n161)Footnote 161. Pub. L. No. 98-473, tit. II, § 212(a)(2), 98 Stat. 1987, Oct. 12, 1984 (current version at 18
U.S.C. § 3551 et seq.).
(n162)Footnote 162. Pub. L. No. 100-185, § 6, 101 Stat. 1279, 1280 (1987) (current version at 18 U.S.C. § 3571).
(n163)Footnote 163. Pub. L. No. 98-473, tit. II, § 211, 98 Stat. 1987, Oct. 12, 1984, as amendedby Pub. L. No.
99-217, 99 Stat. 1728, Dec. 26, 1985; and Pub. L. No. 99-646, 100 Stat. 3592, 3597, 3600, Nov. 10, 1986 (current
version at 18 U.S.C. 3551 (1988), et seq.).
(n164)Footnote 164. Pub. L. No. 98-473, tit. II, § 211, 98 Stat. 1987, Oct. 12, 1984, as amended by Pub. L. No.
99-217, 99 Stat. 1728, Dec. 26, 1985; and Pub. L. No. 99-646, 100 Stat. 3592, 3597, 3600, Nov. 10, 1986 (current
version at 18 U.S.C. 3551 (1988), et seq.).
(n165)Footnote 165. United States Sentencing Commission, Guidelines Manual § 2R1.1 (1999).
(n166)Footnote 166. United States Sentencing Commission, Guidelines Manual § 2R1.1(b)(2) (1999).
(n167)Footnote 167. United States Sentencing Commission, Guidelines Manual § 2R1.1(c)(1) (1999).
(n168)Footnote 168. United States Sentencing Commission, Guidelines Manual § 2R1.1(d)(1) (1999).
(n169)Footnote 169. United States Sentencing Commission, Guidelines Manual § 8C2.5(f) (1999).
(n170)Footnote 170. United States Sentencing Commission, Guidelines Manual §§ 5K1.1 and 8C2.5(g) (1999);
see e.g. Stolt-Nielsen Transp. Group Ltd. v. United States, 480 F. Supp. 2d 166, 173 (D.D.C. 2007) (discussing
agreement).
the ABA Section of Antitrust Law (Oct. 14-15, 1993), available from The Antitrust Division, The United States
The increase in the number of multi-count indictments has been substantial. In 1989, only 29% of the Antitrust
Division's indictments charged additional counts. By 1992, however, the number was up to 50%. Constance K.
Robinson, Deputy Director of Operations, Antitrust Division, U.S. Department of Justice, Communications Among
Competitors -- When Does the Department of Justice Challenge?, Address Before the ABA Section of Antitrust Law
(Oct. 14-15, 1993), available from The Antitrust Division, The United States Department of Justice.
Page 35
the ABA Section of Antitrust Law (Oct. 14-15, 1993), available from The Antitrust Division, The United States
(n173)Footnote 173. See Judy L. Whalley, Crime and Punishment -- Criminal Antitrust Enforcement in the 1990's,
59 Antitrust L.J. 151, 159-60 (1990).
(n174)Footnote 174. Pub. L. No. 91-452, tit. II, § 201(a), 84 Stat. 927, Oct. 15, 1970, as amended by Pub. L. No.
103-322, tit. XXXIII, § 330013(4), Sept. 13, 1994 (current version at 18 U.S.C.A § 6002).
(n175)Footnote 175. Pub. L. No. 91-452, tit. II, § 201(a), 84 Stat. 927, Oct. 15, 1970, as amended by Pub. L. No.
103-322, tit. XXXIII, § 330013(4), Sept. 13, 1994 (current version at 18 U.S.C.A § 6002).
(n176)Footnote 176. The corporate leniency policy enjoyed limited success at first, however, because the Antitrust
Division took the position that to avoid prosecution, the informing organization had to come forward with the
information prior to the start of any Division investigation of the illegal activity. Because a corporation generally had no
knowledge of whether any investigation had begun, 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, and, therefore, it was deterred from
coming forward. In 1993, the Division changed the policy so as to increase a corporations' incentive to turn in its
co-conspirators. Specifically, 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. This change had immediate
impact: in the year following its institution, an average of one corporation came forward per month with information
regarding an offense, compared to the one corporation that came forward per year under the original policy.
See Anne K. Bingaman and Gary R. Spratling, Joint Address Before the Criminal Antitrust Law and Procedure
Workshop ABA Section of Antitrust Law (February 23, 1995), available from The Antitrust Division, The United
States Department of Justice.
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LEXSTAT 5-19 BUSINESS CRIME P 19.02

CHAPTER 19 Criminal Antitrust

5-19 Business Crime P 19.02

P 19.02 The Sherman Act.

[2] Reasonableness of the Restraint.

[3] "Per se" Violations.

[4] Particular Elements of a Section 1 Violation.

[b] In Restraint of Trade.

[c] Among the Several States.

[a] Vagueness of the Sherman Act as a Criminal Statute.

[b] State Action Exemption.

[c] Express Immunity.

[d] Implied Immunity.

[e] Statute of Limitations.

[g] Double Jeopardy.

be twice put in jeopardy of life or limb...."n125

[h] Permissible Information Exchanges.

(n5)Footnote 5. 21 Cong. Rec. 2457, 2460 (1890) (remarks of Senator Sherman).

(n11)Footnote 11. 221 U.S. at 51-55, 31 S. Ct. at 512-514, 55 L. Ed. at 641-643 .

(n14)Footnote 14. 221 U.S. at 180, 31 S. Ct. at 648, 55 L. Ed. at 694 .

(n41)Footnote 41. See, e.g., the following cases:

(n50)Footnote 50. Current version at 15 U.S.C. § 1.

(n51)Footnote 51. 438 U.S. at 429, 98 S. Ct. at 2869, 57 L. Ed. 2d at 864 .

(n53)Footnote 53. 438 U.S. at 433, 98 S. Ct. at 2871, 57 L. Ed. 2d at 867 .

(n54)Footnote 54. 438 U.S. at 435, 98 S. Ct. at 2872, 57 L. Ed. 2d at 868 .

(n56)Footnote 56. 438 U.S. at 444, 98 S. Ct. at 2877, 57 L. Ed. 2d 854 .

See generally above P 19.02[3].

(n74)Footnote 74. 5 F.3d at at 669.

(n78)Footnote 78. 526 U.S. at 781, 119 S. Ct. at 1618 .

(n79)Footnote 79. 526 U.S. at 771, 119 S. Ct. at 1613 .

(n82)Footnote 82. 229 U.S. at 376, 33 S. Ct. at 781, 57 L. Ed. at 1235 .

(n83)Footnote 83. 229 U.S. at 377, 33 S. Ct. at 781, 57 L. Ed. at 1235 .

(n84)Footnote 84. 229 U.S. at 378, 33 S. Ct. at 782, 57 L. Ed. at 1236 .

(n88)Footnote 88. 438 U.S. at 437-443, 98 S. Ct. at 2874-2876, 57 L. Ed. 2d at 870-873 .

(n93)Footnote 93. 317 U.S. at 352, 63 S. Ct. at 314, 87 L. Ed. at 326-327 .

(n94)Footnote 94. 317 U.S. at 352, 63 S. Ct. at 314, 87 L. Ed. at 326 .

(n95)Footnote 95. 317 U.S. at 351, 63 S. Ct. at 314, 87 L. Ed. at 326 .

15 U.S.C. § 17 provides in full as follows:

18 U.S.C. § 3282 provides in full as follows:

438 U.S. at 463-464, 98 S. Ct. at 2887, 57 L. Ed. 2d at 886 (emphasis in original).

The Gypsum defendants had requested this charge:

(n125)Footnote 125. U.S. Const. amend. V.

257 U.S. at 410-411, 42 S. Ct. at 120-121, 66 L. Ed. at 295 .

286 U.S. at 586, 45 S. Ct. at 586, 69 L. Ed. at 1103-1104 .

(n145)Footnote 145. 393 U.S. 333 .

While casual reliance on uncorroborated reports of buyers or sales representativeswithout further

(n156)Footnote 156. 15 U.S.C. § 6 (1988).

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