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Corporate executives at the close of the twentieth century committed and concealed a remarkable amount of antitrust crime. The discovery of these crimes underlined a criminal offense that has existed in the United States since 1890 but that nonetheless has remained a peripheral and exotic species within the general criminal law.
American antitrust law begins with the Sherman Act of 1890 (15 U.S.C. §1, et seq.). This landmark statute has but two main sections: Section 1’s prohibition of agreements ‘‘in restraint of trade’’ and Section 2’s ban on ‘‘monopolizing.’’ Congress delegated considerable policy power to the federal courts by declining to define these two pregnant but vague phrases, and it upped the ante by making the rules criminal as well as civil in character. Congress later added the Clayton Act, the Federal Trade Commission Act, and the Robinson-Patman Act, but violations of these laws are not crimes. (The exception to this statement is the price discrimination provision of §3 of the Robinson-Patman Act, 15 U.S.C. §13a, which provides for imprisonment of not more than a year and a fine of not more than $5,000 or both. This law is virtually never invoked.)
Four types of litigants enforce the Sherman Act:
- private plaintiffs, for whom section 4 for the Clayton Act authorizes civil suits for treble damages, costs, and attorneys fees;
- state attorneys general, who may sue on behalf of an injured state itself and as parens patriae on behalf of injured citizens;
- the Federal Trade Commission, which in effect can enforce the Sherman Act by enforcing the FTC Act; and
- the Antitrust Division of the U.S. Department of Justice, which has the power to bring civil equitable actions to restrain antitrust violations.
Of these four groups, only the Antitrust Division also has the power to enforce the criminal provisions of the federal antitrust laws.
The Antitrust Division has made varied use of the criminal antitrust sanction over time. Before 1938, the government hardly used the tool at all. During Thurman Arnold’s tenure at the Antitrust Division from 1938 to 1943, however, 220 of the 330 cases he brought under Section 1 included criminal charges (Russell, p. 680; see also Posner (1970) and Gallo et al. (1994 and 2000)). Later in the twentieth century, the government made its criminal prosecution policy far more selective and restrictive, confining criminal investigation and prosecution to ‘‘cases involving horizontal, per se unlawful agreements such as price fixing, bid rigging and horizontal customer and territorial allocations.’’ Even in these cases, moreover, the government may decide criminal prosecution is inappropriate where there is ‘‘confusion in the law’’ or where people ‘‘were not aware of, or did not appreciate, the consequences of their action’’ (Antitrust Division Manual, Chapter III.C.5.).
In the latter half of the twentieth century, the government periodically stiffened the criminal penalties for Sherman Act violations. Despite these increases, Gallo and others (1994) and Craycraft (1997) found that actual statutory fines are less than one percent of the optimal fines needed to deter cartelization attempts.
The Rationale for Criminal Antitrust Enforcement
Among the actions that antitrust law suppresses, none is so definitely harmful and so plainly illegal as express cartel agreements to raise prices or to reduce output. Cartel pricing is the effort by a group of erstwhile competitors cooperatively to mimic the high price and restricted output that a single monopolist would establish in that market. Price theory provides useful background.
Competitive pricing differs fundamentally from monopoly pricing. To simplify, competitive prices are based on producer costs because consumers have choices under perfect competition and can simply go elsewhere if one producer raises prices above its costs (counting a normal return to capital as a producer cost). A monopoly price is not based only on costs, however, but also on what the traffic will bear. Consumers have no choice when facing a monopolist, so the monopolist can raise price to the level of consumers’ willingness to pay. What consumers are willing to pay can be far greater than a competitive costbased price. That difference—consumer surplus— is the most definite benefit that competition delivers to consumers. It is the rationale for the Sherman Act’s insistence on competition. Scholars debate the proper way precisely to define this rationale in the abstract, but this debate is of little practical consequence to the topic of criminal antitrust enforcement.
Cartelists can pursue their cooperative goal of high pricing in several ways. The simplest is the old-fashioned price fix. An immortal attempt was the telephone call between Howard Putnam, president of Braniff Airlines and Robert Crandall, president of competitor American Airlines:
PUTNAM: Do you have a suggestion for me? CRANDALL: Yes. I have a suggestion for you. Raise your goddamn fares twenty percent. I’ll raise mine the next morning. PUTNAM: Robert, we—CRANDALL: You’ll make more money and I will too. PUTNAM: We can’t talk about pricing. CRANDALL: Oh bull—Howard. We can talk about any goddamn thing we want to talk about.
Putnam did not raise Braniff’s fares in response to Crandall’s proposal; instead he presented the government with a tape recording of the conversation. (United States v. American Airlines, Inc., 743 F.2d 1114, 1116 (5th Cir. 1984), cert. dismissed, 474 U.S. 1001 (1985).)
Besides simple price fixing, other cartel techniques include market division (splitting territories between sellers), output quotas (setting production limits for each cartel member to reduce output and drive up price), customer allocation (assigning particular buyers to particular sellers) and bid rigging. Cartels may use some or all of these methods (U.S. Department of Justice (2001); International Competition Policy Advisory Committee [ICPAC], pp. 171–174; United States v. Andreas and Wilson, pp. 666–668).
The Role of Criminal Sanction
When considering the proper role for criminal enforcement of antitrust policy, it matters that the antitrust field generally has been riven by normative controversy. Litigants have brought cases about business practices faster than economists have developed theories to comprehend the true nature of those practices. Some practices that initially seemed suspiciously anticompetitive have turned out in reality to have neutral or pro-consumer effects. Violating the antitrust laws, then, is not like robbing a bank. Everyone agrees that bank robbery is morally wrong and socially harmful. Over time, however, antitrust law has learned not to be nearly so sure of itself. Facing this complex and evolving understanding, one fairly can question exactly what role—if any—the mighty force of criminal law should play.
Criminal enforcement of antitrust law has been controversial on grounds of both efficiency and fairness. Beginning with the efficiency perspective, there was past concern that excessive enforcement would deter efficient business conduct, but the government’s prosecutorial restraint towards the end of the 20th century largely has removed this debate from the criminal sphere. A different issue addresses the proper relationship of criminal to civil enforcement. Some utilitarians favor prison over civil liability as a superior deterrent (Baker and Reeves; Werden and Simon; Blair; Dau-Schmidt). Other utilitarians, however, recommend using civil sanctions to the maximum possible extent before turning to criminal penalties. Posner (1980), Polinsky and Shavell, Shavell (1985, 1987), and Kaplow and Shavell (1994, 1999) develop this literature, which originates in the eighteenthcentury work of Jeremy Bentham. The core idea is that the civil process and civil fines are both cheaper than, and thus preferable to, criminal litigation and incarceration—so long as the civil process adequately deters the proscribed conduct. These influential utilitarians then emphasize the muscular power of the treble damage deterrent as well as the calculating character and financial motivation of business conduct, and wonder why there is any need for criminal antitrust enforcement at all.
Yet a central problem for competition policy is to discover and to gather evidence against cartelists at work. This task is hard because this evidence is so elusive. Cartelists have perhaps more management training and corporate resources than any other sort of villain. Before the 1990s, it appears many cartels escaped detection. During that decade, however, some proved newly vulnerable to credible governmental threats of prison, to the promise of leniency for the first to cooperate with the government, and to special powers that criminal investigators wield. This policy combination created incentives for cartel defection that led to impressive government successes.
One important incentive dates from August 1993, when the Antitrust Division changed its corporate leniency program to marked effect. The old policy was that leniency was always discretionary and never automatic, and was never available once an investigation was underway. The new policy made amnesty automatic if there was no existing investigation, and made amnesty possible even after an investigation had been started. The new policy also promised amnesty from criminal prosecution to all corporate officials who cooperated with the government. Division officials reported striking results. During 1999, they received about two leniency applications per month—more than a twenty-fold increase over the old application rate. (Spratling 1999).
As Figure 1 illustrates, in the late 1990s the government reported a spectacular increase in criminal fines from corporations convicted of criminal antitrust charges. Time will tell whether this increase will prove an isolated spike or will achieve a new and stable future plateau. One source stated that, ‘‘[a]necdotally, U.S. antitrust authorities report [in 1999] that those cartels prosecuted over the past several years represent just the tip of the iceberg’’ (ICPAC, p. 168). Government enforcers say their leniency policy has been important to the detection and prosecution of conspiracies that otherwise would have remained hidden (ICPAC, pp. 172–174, 177–180; Klein (1997, 1999); Spratling (1998, 2000)).
Three aspects of these cartel prosecutions in the 1990s are notable. First, not all of the successful cartel prosecutions of the late 1990s originated with this corporate leniency policy change. A highly-publicized prosecution of a cartel in the lysine industry began with information that predated this policy change, as Eichenwald (pp. 48– 53, 536–538) and the Andreas decision (p. 655) report. It was a bizarre and lucky break and not a change in enforcement policy that triggered at least one major Antitrust Division success in the late 1990s.
Second, the cartel investigations of the 1990s improved our understanding of the world. These investigations painted a new and remarkable picture of illegal activity that previously had been extremely difficult even to detect, let alone to study. The picture included, for instance, undercover recordings of secret cartel meetings at which the cartelists joked about being watched by the F.B.I., while the F.B.I. in fact was watching— and videotaping (Eichenwald pp. 265–266; see also Barboza, Connor (1997, 2001a, 2001b); Griffin; ICPAC, pp. 171–176; Lieber; White). This new information revealed that, according to cartelists’ own words and actions, the cartel threat is a very serious one, arising in large and diverse international markets. Economists long have debated the seriousness of the cartel threat. Centuries ago Adam Smith in his Wealth of Nations (p. 135–136) wrote that ‘‘[p]eople of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.’’ Later and more skeptical economists tempered Smith’s view, however, by noting that cartels face a persistent cheating incentive that can make large and effective cartels difficult to organize and maintain. Another source of skepticism was that expressed by respected authority William Baxter in 1995: ‘‘The larger companies are well-counseled and don’t get into the kind of trouble that the antitrust division is looking for.’’ (Labaton 1995). The prosecutions of the late 1990s showed that cartel attempts were more common and more dangerous than skeptics had suspected. Civil enforcement alone had failed to detect the magnitude of the cartel threat from larger companies. We still remain unsure, however, of whether more cartels or an improved detection rate propelled the fine increase of the 1990s.
Third, using a criminal leniency policy to create the incentive for cartelists to break ranks seems appealingly efficient and comparatively cheap. The total number of cases and the average sentences are relatively small. Given that some cartels targeted worldwide markets for important commodities, it apparently required only rather small expenditures on criminal remedies to create a sentencing threat of superior effectiveness.
Figure 2, which shows average sentences and the number of people incarcerated, is consistent with this picture. For decades, the average number of convicts and their average sentences have remained noticeably modest: annually, for the entire country U.S. courts sentence only about 20 antitrust violators to an average sentence of less than a year each. Average sentence duration has steadily increased since 1970 but has remained relatively short, while the average number of defendants incarcerated annually has remained generally constant (with pronounced variance around the mean). Strictly in terms of efficiency, then, this cost of criminal antitrust enforcement seems relatively slight compared, for instance, to the resources we devote to incarcerating other types of federal criminals. Comparing Figures 1 and 2 also suggests that enforcement changes in the late 1990s were generally consistent with the utilitarian prescription of emphasizing fines more than incarceration. If one accepts that cartelists pose a significant threat to consumers, at an impressionistic level this enforcement deal for the public seems a very good one.
Moving from the perspective of efficiency to that of fairness, retributivists have shared doubts about criminal antitrust enforcement. Those who believe in reserving the singular stain of the criminal law to morally blameworthy conduct worry about overcriminalizing mere economic regulation (e.g., Hart, pp. 422–425). One crucial concern is the injustice of imprisoning morally blameless people under laws that are exceedingly complex and uncertain. Every retributivist should be satisfied, however, if prosecutors prove that defendants acted with the blameworthy awareness that their conduct was wrongful or illegal (Hart, pp. 415, 418; Green, pp. 1577– 1578).
In sum, criminal antitrust enforcement can be efficient as well as fair. It can be efficient if the threat of criminal prosecution powers an effective leniency program that induces cartel defection, discovery, and prosecution. It can be fair if the law requires proof of blameworthy awareness of wrongdoing or illegality as an element of the criminal offense.
Confining Criminal Liability to Culpable Conduct
Congress effectively delegated the formulation of antitrust policy—including criminal antitrust policy—to federal judges. Have they interpreted the Sherman Act to confine its criminal reach only to people who indeed are morally blameworthy? The Supreme Court has delivered mixed results on this score.
Before turning to the cases, however, one must confront an initial question: should not this culpability issue be a concern for prosecutors during case selection, and not one for judges during statutory interpretation? Supreme Court justices could and indeed once did consign concerns about the culpability of defendants entirely to prosecutorial discretion, but in practice they no longer do so (Wiley, 1999, pp. 1058–1068, 1160–1161). Since 1985, the Supreme Court has interpreted federal criminal statutes on the apparent premise that Congress means to permit federal prosecutors to prosecute only morally blameworthy people (Wiley, 1999, pp. 1026– 1056).
The Supreme Court’s jurisprudence about criminal antitrust predates this interpretive shift. There are two main cases: Nash v. United States, 229 U.S. 373, 377–378 (1913) and United States v. U.S. Gypsum Co., 438 U.S. 422 (1978). Nash ruled that criminal application of the Sherman Act was not unconstitutionally vague, but the decision did not set forth the elements prosecutors must prove in a criminal antitrust action. The Gypsum decision tackled just this task. Gypsum involved three pertinent holdings, which respectively seem (1) attractive; (2) questionable; and (3) unpersuasive and troubling.
The first holding—the attractive one—was the Court’s conclusion that ‘‘[w]e are unwilling to construe the Sherman Act as mandating a regime of strict-liability criminal offenses’’ and therefore that ‘‘the criminal offenses defined by the Sherman Act should be construed as including intent as an element’’ (pp. 436, 443). This holding is attractive because criminal violation of the Sherman Act exposes a person to a potential threeyear prison sentence. Without a showing of bad intent, there would be no guarantee that this person is morally blameworthy. To imprison a blameless person would be unjust.
The Court’s second holding—the questionable one—was its decision (at 448 n.23 and 444) that ‘‘knowledge of the probable consequences of conduct [is] the requisite mental state in a criminal prosecution like the instant one where an effect on prices is also alleged.’’ The Court summarily dismissed other levels of culpability with the opaque statement that, ‘‘[i]n dealing with the kinds of business decisions upon which the antitrust laws focus, the concepts of recklessness and negligence have no place.’’ This second holding is mystifying and unjustified because the Court did not say why the concepts of recklessness and negligence have no place in dealing with business decisions. In contrast, the Model Penal Code recommends ‘‘recklessness’’ and not ‘‘knowledge’’ as the correct culpability default because recklessness is ‘‘the basic norm [that] usually is regarded as the common law position’’ (Model Penal Code §2.02(3) cmt. 5 (1985)). Jeffries and Stephan likewise observe that ‘‘the minimum culpability most widely found in the penal law is recklessness’’ (p. 1372). The Gypsum Court’s preference for culpability at the level of knowledge rather than recklessness remains questionable (see Wiley, 1999, pp. 1111–1128). Procedurally this issue now seems fixed in concrete, however, because it seems extremely unlikely that any prosecutor would seek jury instructions that violate this rule simply on a remote prospect of eventual review in the Supreme Court, which is the only court with power to revise this Gypsum holding. Without any apparent prospect of Supreme Court review or congressional revision, this point seems of purely academic interest.
The Court’s third holding—the unpersuasive one—is about the type of criminal intent the government must prove. The Gypsum decision failed to require the government to prove that the defendants were aware that they were acting wrongfully or illegally, which seems a logical state of mind to require if a court seeks (as the Gypsum decision sought, see 438 U.S. at 442) to guarantee that defendants are morally culpable. A standard of this sort is what the government must prove, for instance, in drug and tax prosecutions. The typical Ninth Circuit jury instruction for drug cases (No. 9.13) requires the government to prove that defendants knew that they possessed ‘‘some kind of a prohibited drug,’’ while in tax evasion prosecutions the government must prove defendants knew of the duty imposed by law and intentionally violated that duty (Cheek v. United States, 498 U.S. 192, 201 (1991)). At least one district court has imposed a standard of this kind in a criminal antitrust case by requiring the jury to find both that ‘‘the defendants knowingly joined a conspiracy whose purpose was illegal and that they understood the illegality of that purpose’’ (United States v. Brown, 936 F.2d 1042, 1046 n.3 (9th Cir. 1991)). Proof of this kind of culpability has been readily available in recent cartel prosecutions, where defendants have shown their consciousness of guilt by using elaborate concealment precautions, false names, and the other standard tools of people with something to hide. If prosecutors in a particular case find it difficult to prove that defendants were aware of the illegal or wrongful nature of their conduct, this difficulty is a good reason for prosecutors to reexamine their decision to prosecute that case as a criminal matter.
Rather than require awareness of wrongful or illegal conduct, however, the Gypsum Court apparently held the government must prove an entirely different intent: awareness of the probable consequences of conduct. The decision phrased this requirement in slightly different ways: ‘‘knowledge of the probable consequences of conduct’’ (438 U.S. at p. 448 n.23); ‘‘action undertaken with the knowledge of its probable consequences’’ (id. p. 444); and ‘‘the perpetrator’s knowledge of the anticipated consequences’’ (id. p. 446). The Court did not elaborate upon this point, but it appears that all of these formulations fail to guarantee that convicted persons are morally culpable. Take United States v. Topco, for instance. This oft-cited 1972 antitrust decision involved independent grocers from different regions who formed a buying cooperative and a private label brand called Topco. Each participating grocer owned an equal share in Topco, and each received an exclusive territory in which to market the new Topco brand. These grocers were the small firms in their regions; each one held only six percent of the market on average. Scholars have demonstrated convincingly that the grocers’ conduct was beneficial to consumers and society (Baxter and Kessler, pp. 628–629; Bork, pp. 274–279; Hovenkamp, pp. 205–206). Yet the Supreme Court ruled that these defendants had committed a per se violation of the Sherman Act. Had the government opted to proceed criminally instead of civilly against the Topco defendants, it apparently could have obtained a conviction against them under the Gypsum standard because it seems clear that these defendants had knowledge of at least very many of the probable consequences of their group conduct. As far as one can tell, however, the Topco defendants were morally blameless people whose only sin was a good-hearted attempt to compete against the much larger grocery chains of A&P, Safeway, and Kroger—the three firms that the Court’s decision identified as the market leaders. To imprison the Topco defendants would have been unjust, yet the Gypsum interpretation of the Sherman Act would have permitted it. Topco is not a fluke; a similar analysis could be performed with Sealy, Associated Press, and other cases. Gypsum’s third holding thus is unpersuasive and troubling.
Supreme Court developments since 1985 may have cast doubt on the soundness of Gypsum’s interpretation of the Sherman Act. (For the moment, put aside the mental state debate about knowledge versus recklessness and accept Gypsum’s holding that knowledge is the right level of awareness.) On the matter of Gypsum’s third holding, a better formulation would require the government to prove that the defendant in a price fixing case (1) agreed with a competitor (2) about price (3) knowing that this conduct was illegal or wrongful. This formulation goes beyond Gypsum and is at odds with some lower court case law (see, e.g., United States v. W.F. Brinkley & Son Construction Co., 783 F.2d 1157, 1162 (4th Cir. 1986)), but it would accord with the thrust of the Supreme Court’s general criminal interpretive jurisprudence since 1985. It would assure that federal antitrust prosecutions can imprison only people who are morally culpable.
One might hope that the Department of Justice would adopt this formulation as a matter of self-restraint, and would propose it in the jury instructions the Antitrust Division offers to district courts in criminal cartel cases. Should the Antitrust Division decline this measured selfrestraint, it will open itself to challenges from defense counsel seeking jury instructions that require proof that defendants knew their conduct was illegal or wrongful. There are two risks for the government in this course. The first is that the district court may agree with the government but that an appellate court may not. The government then would face the need for a costly retrial of a case, and the passage of time never improves a case-in-chief. The second risk is that the appellate court may formulate jury instructions differently than would the government, and these instructions then would be chiseled in appellate stone. Self-imposed matters of discretion retain more flexibility than do judicial dictates. Arguments of tactical prudence as well as of principle thus support the case for prosecutorial self-restraint in antitrust cases.
Criminal antitrust enforcement led to government success in discovering cartels in the 1990s. By combining the threat of prison with a policy of increased leniency for cartelists who defect to cooperate with the government, prosecutors dramatically increased the effectiveness of antitrust enforcement policy. The Department of Justice could improve its policy still further by using jury instructions in criminal cases that guarantee that only morally culpable people can be convicted of antitrust crimes.
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