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Criminal Antitrust Violations: Current Limits
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).
The Department of Justice could charge any violation of the Sherman Act criminally, but DOJ does so with only a few categories of conduct. There is very little public explanation of this choice by federal prosecutors, and even less by state authorities for comparable state statutes. Counsel advising clients under investigation should know the categories and be ready to argue that the conduct is at worst a civil antitrust violation.
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