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CURRENT TRENDS IN ANTITRUST ENFORCEMENT - A PROSECUTOR'S PERSPECTIVE

NCJ Number
46710
Author(s)
W E SWOPE
Date Published
1978
Length
19 pages
Annotation
THE ENFORCEMENT EFFORTS OF THE ANTITRUST DIVISION ARE REVIEWED, AND TRENDS IN PROSECUTION, PARTICULARLY IN THE AREA OF MERGER ENFORCEMENT, ARE DISCUSSED.
Abstract
THE ANTITRUST DIVISION'S MANDATE IS TO MAKE COMPETITION IN BUSINESS WORK. WHILE IN THE PAST THE DIVISION ROLE WAS PRIMARILY INVESTIGATION AND PROSECUTION, THAT ROLE HAS BEEN EXPANDED TO COVER ADVOCACY FUNCTIONS BEFORE REGULATORY AGENCIES AND THE CONGRESS AND WITHIN THE ADMINISTRATION. IN 1977, THE DIVISION WAS INVOLVED IN NEARLY 400 REGULATORY AGENCY MATTERS, PREPARED 250 REPORTS AND TESTIMONIALS FOR PROPOSED LEGISLATION, AND WAS INVOLVED IN OVER 600 INVESTIGATIONS AND 140 CIVIL AND CRIMINAL PROSECUTIONS. WITH THESE INCREASED RESPONSIBILITIES, MANPOWER AND FINANCIAL RESOURCES HAVE ALSO BEEN EXPANDED. A GREATER EMPHASIS ON CRIMINAL ENFORCEMENT HAS TAKEN PLACE SINCE 1974, WHEN SHERMAN ACT VIOLATIONS WERE MADE FELONIES AND MAXIMUM PENALTIES WERE INCREASED. BETWEEN DECEMBER 1974 AND NOVEMBER 1976, ONLY 7 PERCENT OF INDIVIDUALS SENTENCED FOR MISDEMEANOR ANTITRUST VIOLATIONS RECEIVED JAIL SENTENCES; SINCE NOVEMBER 1976, THIS FIGURE HAS INCREASED TO NEARLY 25 PERCENT. EXPERIENCE WITH FELONY CASES HAS BEEN LIMITED, BUT THERE ARE INDICATIONS THAT DRAMATIC INCREASES WILL BE SEEN IN THIS AREA. GUIDELINES HAVE BEEN ESTABLISHED FOR FELONY SENTENCING RECOMMENDATIONS WHICH TAKE INTO CONSIDERATION THE AMOUNT OF COMMERCE INVOLVED, THE POSITION OF THE INDIVIDUAL, THE DEGREE OF PREDATORY CONDUCT, LENGTH OF PARTICIPATION IN THE VIOLATION, AND PREVIOUS ANTITRUST PARTICIPATION. MITIGATING FACTORS, SUCH AS COOPERATION WITH THE GOVERNMENT AND SEVERE PERSONAL OR FAMILY HARDSHIP, ARE ALSO CONSIDERED. GRANTS OF IMMUNITY ARE SPARINGLY USED, AND THE DEFENDANT'S CULPABILITY IS WEIGHED IN DETERMINING WHETHER IMMUNITY IS IN THE PUBLIC INTEREST. A BYPRODUCT OF THE STIFFER SHERMAN ACT PENALTIES HAS BEEN AN INCREASING NUMBER OF CONSTITUTIONAL CHALLENGES OF THE ACT. THE SHARED MONOPOLY PROBLEM, DEFINED AS COOPERATION AND LACK OF COMPETITION AMONG A NUMBER OF LARGE FIRMS WHICH HAS THE EFFECT OF A MONOPOLY, ALSO HAS HIGH ENFORCEMENT PRIORITY. MERGER ENFORCEMENT ACTIVITY IS EXPECTED TO INCREASE, PARTICULARLY SINCE THE PASSAGE OF THE 'PRENOTIFICATION OF MERGER' PROVISION OF THE 1976 ANTITRUST IMPROVEMENTS ACT. PRENOTIFICATION WILL GIVE THE DIVISION THE INFORMATION AND THE TIME NEEDED TO EVALUATE AND, IF NECESSARY, CHALLENGE PROPOSED MERGERS. FINALLY, PROSECUTION IN MAJOR MONOPOLY CASES HAS PREVIOUSLY BEEN AN EXTREMELY COMPLEX AND TIME-CONSUMING PROCESS. HOWEVER, RESEARCH IS BEING UNDERTAKEN TO STREAMLINE THE PROCESS, AND THE PRESIDENTIAL COMMISSION ON ANTITRUST LAWS AND PROCEDURES WILL BE MAKING RECOMMENDATIONS FOR SYSTEM REVISIONS DESIGNED TO INSURE EFFECTIVE AND EFFICIENT PROSECUTION.