Envisioning the Future


In the next five years, I would like to see the Robinson-Patman Act repealed, the antitrust exemption for major league baseball legislatively overruled, and the Sherman Act amended to increase to ten years maximum prison sentences for hard- core antitrust violations. Only the latter seems to have a reasonable prospect of being enacted.

Increase Maximum Prison Terms

Hard-core antitrust violations are simply a form of economic fraud. Yet, sentences for most fraud offenses are related directly to the dollar amount of the injury caused by the fraud. In contrast, the maximum prison sentence that an individual convicted of participating in cartel activity is three years, whether the economic harm caused by the violation was one thousand dollars or ten billion dollars. Some of the international cartels prosecuted by the Antitrust Division cost consumers billions of dollars. The prospect of a maximum prison sentence of three years, when the risk of detection is low and when recognition that the actual sentence will be less than one year, has not been an effective deterrent. Increasing to ten years the maximum prison sentence for hard core antitrust violations would likely serve as a significant deterrent, particularly if the minimum sentence is linked to the dollar amount of the economic harm caused by the violation.

The current three-year maximum sentence is low, not only in relation to penalties for other forms of economic fraud, it is low in relation to other crimes which occasionally occur during grand jury investigations of antitrust crimes. When I counsel individuals before they give testimony to a grand jury, I explain that the maximum penalties for obstruction of justice and perjury are greater than for price-fixing or bid-rigging. I provide this explanation to emphasize that, if they are going to testify without immunity (which I would not permit), they would be better off admitting participation in an antitrust conspiracy than lying about it to the grand jury.

Overrule the Antitrust Exemption of Major League Baseball

In Flood v. Kuhn , [36] the kindest characterization that the author of the majority opinion could offer for the antitrust exemption for major league baseball was that it was "in a very distinct sense, an exception and an anomaly." [37] The author of the dissent described it as "a derelict in the stream of law that we, its creator, should remove." [38] No other professional sport enjoys antitrust immunity. No rational legal or economic argument can be made to support it. From time to time, committees of Congress have held hearings concerning the exemption, and several individual members of Congress and the Senate have threatened legislation which would remove it. Nevertheless, it has survived more than eighty years of criticism and appears likely to survive for many more years.

Repeal the Robinson-Patman Act

The Robinson-Patman Act also stubbornly persists. The RPA continues to burden price competition in many industries, although "mom and pop" grocery stores had all but disappeared by the end of the third quarter of the twentieth century. Bills repealing the RPA have been filed several times, but none has garnered sufficient votes in committee to reach the floor of the House of the Senate. I suspect that the RPA will remain .

[36] 407 U.S. 258 (1971)

[37] Id. at 281.

[38] Id. at 286.




Inside the Minds Stuff - Inside the Minds. Winning Antitrust Strategies
Inside the Minds Stuff - Inside the Minds. Winning Antitrust Strategies
ISBN: N/A
EAN: N/A
Year: 2004
Pages: 102

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