Criminal Antitrust Enforcement
| Author | Ronan P. Harty |
| Pages | 1045-1170 |
1045
CHAPTER 10
CRIMINAL ANTITRUST ENFORCEMENT
A. Introduction
Antitrust laws are enforced criminally by the Antitrust Division of the U.S.
Department of Justice (DOJ), some state attorneys general, and a number of foreign
enforcement agencies. This chapter focuses on U.S. federal criminal law and the
enforcement policies and practices of the Antitrust Division of the DOJ, and briefly
discusses state criminal antitrust law and enforcement policy and the enforcement
policies of a number of foreign jurisdictions.1
B. Federal Criminal Antitrust Enforcement
1. Antitrust Division Criminal Enforcement:
Organization and Structure
The Antitrust Division (or, the Division) has exclusive responsibility for the
criminal enforcement of the federal antitrust laws.2 The Assistant Attorney General
(AAG) of the Antitrust Division customarily delegates day-to-day management of the
Antitrust Division’s criminal enforcement program to the Deputy Assistant Attorney
General (DAAG) for Criminal Enforcement and the Director of Criminal
Enforcement.3 Together with these officials, the AAG proposes policy and reviews and
approves investigations, cases, and other actions taken by the Division’s criminal
enforcement attorneys.
1. Even though the number of new criminal cases in the United States has declined in recent years,
cartel enforcement in the United States and abroad remains an important priotity for the relevant
authorities. See, e.g., Richard A. Powers, Acting Assitant Att’y Gen., U.S. Dep’t of Justice, Antitrust
Div., Remarks on the State of Criminal Antitrust Enforcement in 2020 (Feb. 7, 2020), a vailable at
https://www.justice.gov/opa/speech/deputy-assistant-attorney-general-richard-powers-delivers-
remarks-state-criminal; U.S. DEP’T OF JUSTICE, ANTITRUST DIVISION, WORKLOAD STATISTICS FY
2010-2019, available a t https://www.justice.gov/atr/file/788426/download; Bill Baer, Assistant
Att’y Gen., U.S. Dep’t of Justice, Antitrust Div., Remarks as Prepared for the Georgetown University
Law Center Global Antitrust Enforcement Symposium—Prosecuting Antitrust Crimes (Sept. 10,
2014), availa ble at http://www.justice.gov/atr/file/517741/download; Scott D. H ammond, Deputy
Assistant Att’y Gen., Antitrust Div., The Evolution of Criminal Antitrust Enforcement Over the Last
Two Decades, Presented at the 24th Annual National Institute on White Collar Crime (Feb. 25,
2010), available a t http://www.justice.gov/atr/file/518241/download.
2. U.S. DEP’T OF JUSTICE, ANTITRUST DIVISION MANUAL (5th ed. 2015) [hereinafter ANTITRUST
DIVISION MANUAL], availa ble at http://www.justice.gov/atr/file/761166/download. If the FTC
uncovers evidence of conduct that may warrant criminal prosecution, it has the ability to refer the
matter to the Antitrust Division. Id. at VII-7 to VII-8.
3. ANTITRUST DIVISION MANUAL, supra note 2, at I-4 to I-5. In the past, the DAAG for Criminal
Enforcement was generally, but not always, a career Antitrust Division prosecutor.
1046 ANTITRUST LAW DEVELOPMENTS (NINTH)
The Antitrust Division relies on trial attorneys in its Washington, D.C. sections,
Washington Criminal I and II,4 and its regional offices in Chicago, New York, and San
Francisco5 to investigate and prosecute criminal antitrust violations. Washington
Criminal I and II Section attorneys investigate and prosecute only criminal matters.6
Attorneys in the regional offices principally conduct criminal investigations and
litigation, though in some field offices the attorneys may also handle civil merger and
nonmerger matters. Attorneys in the regional offices also act as the Antitrust Division’s
liaison with U.S. Attorneys, state attorneys general, and other law enforcement
agencies within their geographic regions.7 Antitrust Division attorneys assigned to
criminal matters work closely with special agents from the Federal Bureau of
Investigation (FBI) and other federal agency investigators.8 They coordinate closely
with the DOJ’s Criminal Division and U.S. Attorneys’ offices to ensure compliance
with both DOJ and local practices and procedures.
The DOJ’s Office of International Affairs (OIA) and the Antitrust Division’s
International Section assist in coordinating investigations with foreign authorities and
negotiating requests to those authorities to obtain documents and testimony from
abroad.9 The Antitrust Division’s Economic Analysis Group (EAG) and outside
experts assist on any economic issues that arise, including case theory development,
trial strategy, data analysis related to competitive effects, and product and geographic
market determinations.10 In recent years, the Antitrust Division has retained accounting
experts to assess or rebut convicted defendants’ arguments for reduced fines based on
their inability to pay. The Antitrust Division’s Appellate Section acts for the Division
in all appeals to the U.S. Courts of Appeals and, in conjunction with the Office of the
Solicitor General, all appeals before the U.S. Supreme Court.11
2. Federal Enforcement Policy and Choice of Remedy
Section 1 of the Sherman Act is the primary criminal statute enforced by the
Antitrust Division.12 That statute prohibits agreements among competitors that
unreasonably restrain competition. The language of the statute offers no criteria for
determining whether a particular violation is more appropriately addressed as a
criminal or civil case. The Antitrust Division, however, has a long-standing policy of
seeking criminal indictments only in cases involving hard core per se unlawful
agreements.13 Most Sherman Act criminal cases have involved allegations of per se
4. See ANTITRUST DIVISION MANUAL, supra note 2, at I-8; U.S. Dep’t of Justice, Sections and Offices,
available a t http://www.justice.gov/atr/sections-and-offices.
5. See ANTITRUST DIVISION MANUAL, supra note 2, at I-8; Sections and Offices, supra note 4.
6. ANTITRUST DIVISION MANUAL, supra note 2, at I-8.
7. Id.
8. Id. at III-15 to III-17.
9. Id. at I-10, VII-32 to VII-33.
10. Id. at I-9.
11. See 15 U.S.C. § 1; ANTITRUST DIVISION MANUAL, supra note 2, at I-9 to I-10.
12. Criminal penalties for antitrust offenses also are provided under Sections 2 and 3 of the Sherman
Act, 15 U.S.C. §§ 2–3, Sections 2 and 14 of the Clayton Act, 15 U.S.C. §§ 13, 24, under the
Alternative Fine Statute, 18 U.S.C. § 3571, and the Antitrust Criminal Penalty Reform Act of 2004
(ACPERA), Pub. L. No. 108237, § 215(a), 118 Stat. 661, 665 and its extensions in 2009, Pub. L.
No. 111-30, 123 Stat. 1775 (2009), and 2010, Pub. L. No. 111-190, 124 Stat. 1275 (2010). These
statutes are seldom enforced criminally, except for Section 3 of the Sherman Act, which prohibits
agreements that unreasonably restrain trade in and with the District of Columbia.
13. Richard A. Powers, Acting Assitant Att’y Gen., U.S. Dep’t of Justice, Antitrust Div., Remarks at
Cartel Working Group Plenary: Big Data and Cartelization, 2020 International Competition Network
CRIMINAL ANTITRUST ENFORCEMENT 1047
violations of Section 1, including horizontal price fixing, bid rigging, and market or
customer allocations.14
To prove a per se violation of Section 1 of the Sherman Act, the government must
show (1) the existence of a per se illegal conspiracy, (2) that the defendant knowingly
entered into the conspiracy, and (3) that the conspiracy affected interstate or foreign
trade and commerce.15 Nearly all U.S. Courts of Appeals have held that when a per se
violation of Section 1 is charged, intent may be established by proving a defendant
knowingly agreed to participate in the alleged conspiracy.16 The government need not
prove independently that a defendant intended to restrain trade unreasonably or to
Annual Conference (Sept. 17, 2020), availa ble at https://www.justice.gov/opa/speech/deputy-
assistant-attorney-general-richard-powers-delivers-remarks-cartel-working-group; See Thomas O.
Barnett, Assistant Att’y Gen., Criminal Enforcement of Antitrust Laws: The U.S. Model, Address at
the Fordham Competition Law Institute’s Annual Conference on International Antitrust Law and
Policy (Sept. 14, 2006), availa ble at http://www.justice.gov/atr/speech/criminal-enforcement-
antitrust-laws-us-model; Gregory J. Werden, Senior Econ. Counsel, Scott D. Hammond, Deputy
Assistant Att’y Gen., Antitrust Div. & Belinda A. Barnett, Deputy Gen. Counsel–Criminal, Antitrust
Div., Deterrence and Detection of Cartels: Using all the Tools and Sanctions, Address at the National
Institute on White Collar Crime (Mar. 1, 2012), availa ble a t
http://www.justice.gov/atr/file/518936/download; see also Baer, supra note 1; Anne K. Bingaman,
Assistant Att’y Gen. & Gary R. Spratling, Deputy Assistant Att’y Gen., Antitrust Div., Criminal
Antitrust Enforcement, Address Before the Criminal Antitrust Law and Procedure Workshop, ABA
Section of Antitrust Law (Feb. 23, 1995), availa ble at https://www.justice.gov/atr/speech/criminal-
antitrust-enforcement-joint-address-aag-anne-k-bingaman-and-daag-gary-rspratling.
14. See U.S. DEP’T OF JUSTICE, AN ANTITRUST PRIMER FOR LAW ENFORCEMENT PERSONNEL
(September 2018), available at https://www.justice.gov/atr/file/761666/download; U.S. Dep’t of
Justice, Antitrust Division 2020 Update, available at https://www.justice.gov/file/1280196/
download.
15. See United States v. Rose, 449 F.3d 627, 630, 632, 634 (5th Cir. 2006); United States v. Anderson,
Cir. 2001); United States v. Andreas, 216 F.3d 645, 666–86 (7th Cir. 2000); United States v. Brown,
936 F.2d 1042, 1046 (9th Cir. 1991); United States v. Coop. Theatres, 845 F.2d 1367, 1372 (6th Cir.
1988); United States v. W.F. Brinkley, 783 F.2d 1157, 1162 (4th Cir. 1986); United States v. Cargo
295–96 (2d Cir. 1981); United States v. Gillen, 599 F.2d 541, 545 (3d Cir. 1979); United States v.
Brighton Bldg. & Maint. Co., 598 F.2d 1101, 1106 (7th Cir. 1979).
16. See, e.g., Rose, 449 F.3d at 630 (“To show that [the defendant] actually intended to enter into the
[per se illegal price-fixing] conspiracy, ‘the government was required to show that [he] knowingly
joined or participated in [it].’” (quoting United States v. Young Bros., 728 F.2d 682, 687 (5th Cir.
1984))); Brown, 936 F.2d at 1046 (“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.”);
United States v. Suntar Roofing, 897 F.2d 469, 479–80 (10th Cir. 1990) (“The requisite intent [in a
per se case] can be proved by showing that the defendants knowingly joined and participated in the
conspiracy.”); Coop. Theatres, 845 F.2d at 1373 (“[T]he government is not required in a per se case
to show that the conspirators entered into the agreement with knowledge of its probable anti-
competitive effects.”); United States v. Gravely, 840 F.2d 1156, 1161 (4th Cir. 1988) (noting that
government need only prove that defendant willfully joined per se illegal conspiracy with intent to
further some purpose of conspiracy to establish requisite intent); Koppers, 652 F.2d at 295–96 n.6
(“Where per se conduct is found, a finding of intent to conspire to commit the offense is
sufficient . . . .”); Brighton Bldg., 598 F.2d at 1106 (rejecting need for instruction that “defendants
cannot be convicted unless they are found to have intended to restrain trade” after “defendants are
proved to have intentionally made an agreement which is unlawful per se”); United States v. Cont’l
Group, 603 F.2d 444, 461 (3d Cir. 1979) (“Gypsum did not alter the ‘long-established rule of law on
price-fixing cases’ that proof of the requisite mens rea is satisfied by proof that the defendant formed
or joined a conspiracy to fix prices.”) (quoting Gillen, 599 F.2d at 544-45); see a lso Giordano, 261
F.3d at 1142–43 (discussing Gypsum and role of intent in per se cases); Andreas, 216 F.3d at 669–
70 (same); United States v. Chen, 2011 WL 332713, at *5 (N.D. Cal. Jan. 29, 2011).
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