Reform of the Federal Criminal Laws: A Major Change in Criminal Antitrust Liability

• Published date: 01 September 1974
• Author: Mark Crane
• DOI: 10.1177/0003603X7401900301
• Date: 01 September 1974
• Subject Matter: Article

REFORM

OF THE

FEDERAL

CRIMINAL LAWS:

A MAJOR CHANGE IN CRIMINAL

ANTITRUST

LIABILITY

by

The United

States

Senate currently has before

it

two

proposals to establish aFederal Criminal Code. These pro-

posals would make

major

changes in the criminal law relating

to a wide variety of business-related offenses, including the

antitrust

laws.

If

enacted, they would make many

antitrust

crimes more serious offenses, would impose criminal sanc-

tions on conduct which today gives rise only to civil liability,

and would authorize a whole panoply of new penalties.

These two

bills-Senate

Bill 1 (S. 1)

drafted

by the staff

of Senator McClellan's Subcommittee on the Reform of Fed-

eral Criminal Laws and Senate Bill 1400 (S. 1400)

drafted

by

the Justice

Department-represent

the most sweeping re-

vision of the

antitrust

laws since the enactment of the Clayton

and Federal Trade Commission Acts in 1914.

I.

CHANGES

IN

CRIMINAL

LIABILITY

A. Deletion of

Attempts

to Monopolize From Section 2

Section 316(a)2 amends Section 2 of the Sherman Act

to strike out the words

"or

attempt to monopolize." The

purpose of this deletion is apparently to make it clear

that

an

attempt

to monopolize falls within the general section

on criminal

attempts-Section

1-2A4. Such an intention was

• Hopkins, Sutter, Owen, Mulroy &Davis, Chicago, Ill. Member

of the Criminal Practice and Procedure Committee, Antitrust Sec-

tion, American Bar Association. The views expressed in this article

are, of course, solely his own.

493

494

THE

ANTITRUST

BULLETIN

indicated by

Senator

McClellan's observation

that

"the

gen-

eral

provision on

attempt

...

is applicable to every federal

crime except as specifically excluded in the section on a

specific offense"

and

will "eliminate the need

for

special

attempt

statutes."

1

Putting

aside for the moment the substantial changes

that

Section 1-2A4 would make in the substantive law of

attempts to monopolize," acollateral effect of deleting from

Section 2 of the Sherman Act

"attempt

to monopolize" would

be to deny

private

parties

the

right

to obtain treble damages

for

injuries resulting from such attempts.

Section 4 of the Clayton Act provides

that

"any

person

who shall be injured in his business or

property

by reason

of anything forbidden in the

antitrust

laws, may sue . . .

and shall recover threefold the damages by him sustained,

and

the cost of suit, including areasonable

attorney's

fee." a

The key words

are

"anything forbidden in the

antitrust

laws," since the Supreme Court has held

that

no

right

to

recover treble damages can result from allegedly anticom-

petitive conduct which is not proscribed by the

antitrust

laws;'

The

"antitrust

laws," as used in Section 4 of the Clayton

Act,

are

defined in Section 1 of

that

ActS

to include Section 2

of the Sherman Act. They do not, obviously, include the

general

attempts

section of S. 1,

nor

should Section 1 of

the Clayton Act be amended to include in the definition of

the

antitrust

laws a general attempts section in the new

Criminal Code which deals principally with criminal activity

having nothing to do with

antitrust

offenses.

1Congressional Record, Volume 119,

No.6,

January

12, 1973, at

page S-569.

:&

See section C. 1, infra.

a15 U.S.C. §15.

" Nashville Milk Co. v, Carnation Co., 355 U.S. 373 (1958), hold-

ing

that

a violation of Section 3 of the Robinson-Patman Act could

not be redressed by treble damages because

it

was not

part

of the

antitrust

laws.

I15 U.S.C. §12.