Federal Antitrust Defense
The antitrust laws regulating business practices are extremely complex. Our team of attorneys include former federal prosecutors who have prosecuted and defended complex financial crimes that focus on prohibited anti-competitive business conduct.
Antitrust laws are federal statutes designed to thwart perceived unfair business practices that allow businesses to control so much market share that it effectively eliminates competition. Federal antitrust laws are codified under the Sherman Act (15 U.S.C. §§ 1-7) and the Clayton Act (15 U.S.C. §§ 12-27).
The Sherman Act
The Sherman Act focuses on collusion between two or more businesses to improve their positions or eliminate competition. The Sherman Act also gives prosecutors the ability to seize and forfeit assets through the criminal forfeiture process.
The Sherman Act imposes criminal penalties of up to $100 million for a corporation and $1 million for an individual, along with up to 10 years in prison. The maximum fine may be increased to twice the amount the conspirators gained from the illegal acts or twice the money lost by the victims of the crime, if either of those amounts is over $100 million.
The Clayton Act
The Clayton Act broadens federal regulation of monopolistic conduct by regulating certain conduct includings mergers and interlocking directorates. Violations of either the Sherman Act or Clayton Act are federal felony offenses.
Unfair business practices can include market allocation, bid rigging, and price fixing. For the most part, these are per se violations, meaning intent is not an element that the Government has to prove.
The Clayton Act carries the same punishment range as the Sherman Act.
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What is market allocation?
Market allocation occurs when businesses split a marketplace and agree to stay out of each other’s way. This allows the businesses to sell at rates that create barriers to entry into the market. It also artificially reduces competition in a given marketplace. Market allocation schemes are prosecuted under the Sherman Act.
What is bid rigging?
Bid rigging occurs when competing businesses collude to secure a contract for goods or services at a particular price. The most common method of bid rigging is complementary bidding where some of the bid riggers will submit extremely high bids so the winning bidder still gets a high price. The Sherman Act makes bid rigging schemes illegal.
What is price fixing?
An agreement between competitors to sell goods or services is a violation of the Sherman Act. Price fixing occurs when private businesses collude to establish a price that is not determined naturally through free-market forces. An example this would be when oil cartels inflated gas prices. Remember, a plan among competitors to set prices is almost always illegal. These types of agreements are very hard to prove so it is of the utmost importance for a person or business being investigated by the Antitrust Division of the Department of Justice to contact us immediately.
It is important to remember that most antitrust violations are based on circumstantial evidence. As per se violations, the best defense is often that the alleged collusion did not occur. There are also defenses such as conscious parallelism that may apply where there is no formal implied or express agreement to fix prices and yet the prices may still appear to be fixed.
Also published on Medium.