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Criminal Antitrust Violations: Current Limits

By David J. Laing

The two federal statutes that create criminal liability for antitrust violations are arguably the broadest and most poorly defined of all federal criminal statutes, even recognizing the tortured draftsmanship of the RICO statute and the securities laws' criminal provisions. Section 1 of the Sherman Act of 1890 makes all 'contracts in restraint of trade' a felony, and Section 2 criminalizes 'monopolies or attempts to monopolize' without providing any definition of these terms. 15 U.S.C. ” 1-2. The antitrust statutes are much less clear than some of the broadest criminal provisions, such as the mail fraud statute's prohibition of 'any scheme or artifice to defraud.' The Sherman Act's breadth and lack of clarity has often been described as 'constitutional' ' a comparison to sweeping but ambiguous phrases like 'due process' and 'equal protection.'

According to the Sherman Act, all violations are felonies. However, only a very limited number of violations are prosecuted criminally. Of approximately 30 kinds of conduct listed in an authoritative publication as possible antitrust violations, the Department of Justice treats only three as indictable, despite the Sherman Act's unequivocal declaration that '[e]very contract ' in restraint of trade ' shall be ' a felony.' See Antitrust Law Developments (ABA, 5th ed. 2002).

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