The United States Sentencing Commission posted a notice soliciting comments for possible revisions to USSG 2R1.1 (Antitrust Offenses) to be submitted by July 29th.  I have posted about this previously. (here)(here).  This week I submitted my comments to the Commission.  I limited my comments to my concerns over the guidelines as they apply to individual defendants.  My basic concern is that the volume of commerce is a poor measure of an individual defendant’s culpability, yet it is the primary driver of the offense level.  More specifically, my comments set forth my three primary concerns with the antitrust guidelines as applied to individuals: 1) that the maximum prison sentence of 10 years under the Sherman Act should be reserved for the most egregious cases such as recidivism or explicit economic coercion; 2) that the volume of commerce be de-emphasized as the primary determinant of an individuals’ culpability and be applied only for defendants who had the authority to commit their company to the cartel; and 3) that other factors that more accurately reflect culpability (such as motive) play a role in guidelines calculation.

I also discuss how the Antitrust Division has changed its investigative strategy from “Big Fish/Little Fish” to a “Race to the Courthouse.” This strategy, while successful on one level, has highlighted the inequity of the guidelines of relying principally on volume of commerce to determine an individuals’ recommended guideline sentence. The letter also explains how the failure of the guidelines to reflect an individual’s culpability has led Courts to nearly uniformly depart from imposing a  guidelines sentence, even when recommended by the prosecutors.

Finally, the letter asks the Commission to consider my suggested antitrust guideline reforms that I believe will better reflect an individual’s personal culpability.  While I have opinions based on my many years of prosecuting antitrust crimes, I certainly don’t have all the answers. My hope is to contribute to an informed discussion of how the antitrust sentencing guidelines can be amended to punish based on relative individual culpability and also best serve the purpose of general deterrence of price-fixing and bid rigging.

A complete copy of my letter to the Sentencing Commission can be found here.  Or, email me and I would be happy to send you a copy.

Thanks for reading!