1
CHAPTER I
REVIEW OF CRIMINAL PENALTIES AND
COLLATERAL CONSEQUENCES FOR ANTITRUST
AND RELATED VIOLATIONS
A. Overview of Criminal Penalties and Collateral Consequences in
the United States
The Antitrust Division (Division) of the U.S. Department of Justice
(DOJ or Department) has the authority to criminally prosecute
conspiracies among competitors that violate Sherman Antitrust Act of
1890 (the Sherman Act). While a violation of the Sherman Act may be
prosecuted as a felony, “in general, the Department reserves criminal
prosecution under Section 1 for ‘per se’ unlawful restraints of trade
among competitors, e.g., price fixing, bid rigging, and market allocation
agreements. It may also bring, and has brought, criminal charges under
Section 2.”1 The Division recently brought its first criminal
monopolization cases in more than 40 years.2
The Sherman Act has long been viewed as of singular importance to
the economy of the United States; indeed, it has been labeled as the
Magna Carta of the free market system.3 Until 1974, however, a criminal
violation of the Sherman Act constituted only a misdemeanor subjecting
an individual to a maximum one-year jail sentence, which was almost
never imposed, and both corporate and individual defendants to a
maximum fine of $50,000.4 Criminal penalties for antitrust violations
1. U.S. DEP’T OF JUSTICE, JUST. MANUAL § 7-2.200 (2022), available
at https://www.justice.gov/jm/jm-7-2000-prior-approvals#7-2.200.
2. Press Release, Antitrust Div., U.S. Dep’t of Justice, Executive Pleads
Guilty to Criminal Attempted Monopolization ((October 31, 2022),
available at https://www.justice.gov/opa/pr/executive-pleads-guilty-
criminal-attempted-monopolization; Press Release, Antitrust Div., U.S.
Dep’t of Justice, Executive Pleads Guilty to Criminal Attempted
Monopolization, available at.
3. United States v. Topco Assocs., 405 U.S. 596, 610 (1972) (“Antitrust
laws in general, and the Sherman Act in particular, are the Magna Carta
of free enterprise.”).
4. Donald C. Klawiter and Jennifer M. Driscoll, Sentencing Individuals In
Antitrust Cases: The Proper Balance, 23 ANTITRUST 75-80 (Spring
2009).
2 Antitrust Cartel Leniency and Sentencing Handbook
have increased since then, and today, criminal violations of this Act carry
a maximum prison sentence of 10 years. Criminal violations of this Act
carry a maximum fine of the greatest of (a) twice the gross pecun iary
gain derived from the crime, (b) twice the gross pecuniary loss caused to
the victims by the crime, or (c) for defendant corporations: $100 million,
and for individuals: $1,000,000.5
Competition authorities around the world are also aggressively
investigating and prosecuting hard core antitrust violations such as price
fixing, market allocation, and bid rigging.6
An organization or individual subject to a criminal antitrust
investigation in the United States may have concerns that go beyond
antitrust penalties. The DOJ’s Antitrust Division frequently investigates
and prosecutes other substantive offenses that are committed in
connection with antitrust offenses, as well as stand-alone offenses that
harm competition but do not constitute a violation of the Sherman Act.7
These related offenses include mail and wire fraud, bribery, solicitation
or acceptance of kickbacks, money laundering, tax offenses, false
statements made during a bidding process, and conspiracy to commit
such crimes.8 These offenses may arise, for example, when a purchasing
agent distorts the competitive process by accepting a bribe or kickback in
return for the award of a contract, launders the bribe proceeds, and fails
to pay taxes on the bribe income. The Antitrust Division also investigates
and prosecutes offenses that affect the integrity of investigative and
judicial processes, such as obstruction of justice, perjury, and false
statements.9
As set forth in detail below, the statutory penalties for these
additional crimes, which include fines and prison time, can be
substantial. Moreover, criminal penalties are not limited to those
provided in each specific statute setting forth an offense. For example,
Section 3571 of Title 18 provides for maximum fines for federal felony
offenses that are the greatest of (1) the amount in the statute setting forth
the offense, (2) $250,000 for an individual defendant or $500,000 for an
organizational defendant, or (3) the amount in 18 U.S.C. § 3571(d),
5. U.S. DEP’T OF JUSTICE, JUST. MANUAL § 7-2.200 (2022), available
at https://www.justice.gov/jm/jm-7-2000-prior-approvals#7-2.200.
6. Org. for Econ. Co-Operation & Dev., Hard Core Cartels (2000),
https://www.oecd.org/daf/competition/cartels/2752129.pdf.
7. ANTITRUST DIVISION MANUAL (5th Ed.) at II-7-8,
https://www.justice.gov/atr/file/761166/download.
8. Id.
9. Id. at II-8-9.
