On July 24, 2019 Senators Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.), reintroduced legislation to extend whistleblower protection for employees who provide information to the Department of Justice related to criminal antitrust violations.

From the Press Release:

            “Violations of our antitrust laws hurt consumers, often in the form of less choice and higher prices. Without the help of industry whistleblowers, these sorts of violations often fly under the radar. This legislation incentivizes private sector employees to disclose criminal violations by protecting them from retaliation in the workplace after coming forward with information. It also can be a real deterrent to those who are thinking about committing fraud in the future. We’ve seen how whistleblower protections can be a real tool to helping root out waste, fraud and abuse. Just as whistleblower protections for government employees help root out waste, fraud and abuse, they can also help prevent misconduct in the private sector,”Grassley said.”

            “Our country has a proud history of working to protect whistleblowers, beginning when the Continental Congress unanimously passed the first whistleblower law 241 years ago next week, on July 30, 1778. Today I’m again joining with Senator Grassley to further those protections. It is common sense that our laws should protect those who take on significant personal risks to report criminal antitrust violations, such as price fixing. The Senate has unanimously passed this legislation three times, and Senator Grassley and I are hopeful that Congress this year will finally enact our bipartisan bill,”Leahy said.

The text of the Criminal Antitrust Anti-Retaliation Act is available here.

The bill will likely pass the Senate, which has unanimously passed four earlier versions of the bill; the last time being in 2017.  Regrettably, the House of Representatives failed to even consider any of these previous bills. I expect/hope that this time the House of Representatives will approve the Grassley/Leahy bill.  It is a good bill, but it’s only a humble start. The prospect of some anti-retaliation protection is unlikely to draw out many people to take the enormous risk of becoming an industry whistleblower.  Moreover, a large pool of potential whistleblowers in international price fixing cartels are foreigners.  The Securities and Exchange Commission just announced a $500 million award to an overseas whistleblower whose reporting helped the Commission bring a successful enforcement action (here).  Whistleblower awards are a key component of an effective whistleblower statute.

Kimberly Justice, [Freed Kanner London & Millen] and I have written several articles advocating for a more significant criminal cartel whistleblower statute that, like the SEC whistleblower statute, provides a financial award when the information leads to the successful prosecution of a cartel. Two of these articles are:

It’s a Crime There Isn’t a Criminal Antitrust Whistleblower Statute

The Political Stars Align for a Criminal Antitrust Whistleblower Statute

Some of the Cartel Caper blog posts I’ve written on the subject are:

The Bid Rigging Whistleblower

A Whistleblower Story (Hypothetical)

I’m hoping that the Grassley-Leahy Anti-Retaliation bill will pass and create momentum for more significant efforts to draw out whistleblowers who have inside information ranging from local regions bid rigging to international price fixing cartels.

Thanks for reading

Bob Connolly

Bob@reconnollylaw.com

The Antitrust Section of the American Bar Association is hosting an August 1, 2019 teleconference on the Antitrust Divisions new policy on Incentivizing Antitrust Compliance Programs.  Below is an ABA description of the program and I’ve provided a link if you care to register.

Wind of Change: The Antitrust Division’s New Guidance for Evaluating Compliance Programs in Criminal Cases

12 PM EDT   August 1, 2019

Recently the U.S. Department of Justice Antitrust Division reversed its longstanding policy and issued new guidance stating that it will evaluate the effectiveness of corporate antitrust compliance programs at the charging and penalty phases of criminal investigations. In this program, experienced antitrust practitioners and a DOJ prosecutor will shed light on the practical implications of this new policy for corporate parties seeking to manage their antitrust risk.

Attendees are invited to submit questions for the panelists to address to the attention of Alicia Downey, co-chair of the Compliance & Ethics Committee, at alicia@downeylawllc.com.

Click here for a link to the program announcement and registration.

Thanks for reading.

Bob Connolly

bob@reconnollylaw.com

This major news has been extensively covered but in case you missed it:

On July 11, 2019, Makan Delrahim announced a major reversal in the Antitrust Division’s treatment of Corporate antitrust compliance programs.  In a speech titled “Wind of Change: A New Model for Incentivizing Antitrust Compliance Programs,” Delrahim stated: “effective immediately, the Antitrust Division will: (1) change its approach to crediting compliance at the charging stage; (2) clarify its approach to evaluating the effectiveness of compliance programs at the sentencing stage; and (3) for the first time, make public a guidance document for the evaluation of compliance programs in criminal antitrust investigations.”

The Antitrust Division has historically refused to decline to criminally charge a company based on its compliance program.  This was essentially a per serule:  If a criminal antitrust violation occurred, your program was ineffective.  No credit for you!  The Antitrust Division justified this position on the basis that price fixing/bid rigging crimes are [almost always] committed by senior executives—at least senior enough to bind the corporation in pricing issues.  After the revised Corporate Leniency Program was issued in August 1993, the Antitrust Division added that it didcredit compliance programs in that if the compliance program detected the violation, the company could apply to the Antitrust Division for leniency.  The old policy was: “[T]he Antitrust Division has established a firm policy, understood in the business community, that credit should not be given at the charging stage for a compliance program and that amnesty is available only to the first corporation to make full disclosure to the government.” This statement has been deleted from the Justice Manual § 9-28.400 cmt.

Under the new policy, a company may benefit in two ways from an antitrust compliance program even if the company did become involved in a criminal antitrust violation.  Even if the one leniency per investigation has been claimed, a company may qualify for a Deferred Prosecution Agreement (DPA).  Delrahim elaborated: “Going forward, when deciding how to resolve criminal charges against a corporation, Division prosecutors must consider the Division’s Corporate Leniency Policy, the Principles of Federal Prosecution and the Principles of Federal Prosecutions of Business Organizations, including the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of the charging decision.” Later in his speech, he added, “Precisely how much weight and credit to give a compliance program will depend on the facts of the case.”

The Principles of Federal Prosecution Business Organizations  lays out “Factors to be Considered in Charging an Organization.”  Delrahim in his speech noted four that relate to a good compliance program:  (1) implement robust and effective compliance programs, and when wrongdoing occurs, they (2) promptly self-report, (3) cooperate in the Division’s investigation, and (4) take remedial action.

If a DPA is not secured, a corporation may still qualify for fine reduction at sentencing based its compliance program.  There are three possible sentencing benefits: (1) earning a three-point reduction in a corporate defendant’s culpability score if the company has an “effective” compliance program, (2) a reduction in the corporate fine the Antitrust Division recommends, and (3) avoiding having the Division require/recommend probation as part of the corporation’s sentence.  The Division may more aggressively seek probation under the Sentencing Guidelines if a corporation does not have an effective compliance program.  What constitutes an effective compliance program is still at least partly a [Division] judgment call and, “[p]recisely how much weight and credit to give a compliance program will depend on the facts of the case,” Mr. Delrahim said.

As just noted, a robust compliance program does not guarantee either a DPA or credit at sentencing.  It remains to be seen how the Antitrust Division will apply its new policy.  But, the change in policy is a huge one, resulting from years of lobbying from the defense bar and compliance professionals who have argued that such a change was needed to incentivize corporations to spend the money to institute serious antitrust compliance programs.

Thanks for reading.

Bob Connolly

bob@reconnollylaw.com

For further information, these documents should be consulted:

Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (hereinafter, “2019 DOJ Guidance on Antitrust Compliance”), U.S. Dep’t Justice, Antitrust Div., July 2019, available at https://www.justice.gov/atr/page/file/1182001/download

Deputy Assistant Attorney General Brent Snyder, U.S. Dep’t Justice, Antitrust Div., Compliance is a Culture, Not Just a Policy, Remarks as Prepared for the International Chamber of Commerce/United States Council of International Business Joint Antitrust Compliance Workshop, September 9, 2014, available at https://www.justice.gov/atr/file/517796/download.

I am a bit obsessed with trying to gain support for a criminal cartel whistleblower statute.  Toward that end, I often comment on the wildly successful SEC fraud whistleblower statute and why I think a cartel whistleblower statute would have equally positive results.

A May 24, 2019 Wall Street Journal column by Mengqi Sun and Kristin Broughton (here) reported that:

A former orthopedic surgeon in Brazil received an award of more than $4.5 million for raising concerns to the Securities and Exchange Commission about an alleged kickback scheme operated by a subsidiary of a medical device maker, according to lawyers for the whistleblower.

Under SEC rules, whistleblowers are entitled to between 10% and 30% of monetary penalties when their tips result in a successful enforcement action and when the monetary penalties are more than $1 million.

The whistleblower receiving the award Friday received about 15% of the amounts collected by the SEC and the Justice Department.

Another news report added this:

            Whistleblower Awarded $4.5M for Reporting Internally and to SEC Within 120 Days

            By Caroline Spiezio | May 24, 2019 at 02:54 PM | Originally published on Corporate Counsel

 A whistleblower sent a tip to the SEC within 120 days of reporting internally, which sparked the company to self-report. This is the “first time a claimant is being awarded under this provision of the whistleblower rules,” according to the agency. 

Friday’s award is the latest in a series of massive whistleblower awards, and not just from the SEC. During one week in March, whistleblowers in unrelated cases received $86 million in awards, including $1.87 million for the former general counsel of the Houston Housing Authority. A press release from the SEC Friday claims the agency has awarded “$381 million to 62 individuals since issuing its first award in 2012.”

Comment:

Do you think there might be any potential whistleblowers overseas that know about international cartels and might be tempted for a monetary reward to risk their career to report the activity?  Cartels, particularly large international cartels, have so many participants, including lower level employees who have minor culpability, that the chance of a whistleblower coming forward is real.  Even if the odds are low, they is not zero.  Worrying about a potential whistleblower can destabilize a cartel, expose cartels, or better yet, stop cartels from forming.

Another point is illuminated by this SEC whistleblower case:  A whistleblower statute will complement, not undercut, the Corporate Leniency Program—especially type A leniency. There are no public statistics but anecdotally attorneys suggest that some companies that discover cartel issues are not coming forward with Type A leniency because the costs of cooperation and civil damage suits outweigh the benefits of sitting back and hoping the cartel is never discovered.[1]  The discussion in the corporate board room about what to do with a discovered cartel problem will be quite different if the company has to worry about an individual whistleblower having incentives to report the wrongdoing.  Currently, a company may (and some allegedly have) bet that another cartel member won’t go in for Type A leniency because that company faces the same enormous collateral consequences of exposing the cartel.  An individual whistleblower, of course, faces enormous blowback from being a whistleblower, but a possible financial reward may overcome these disincentives.  In terms of destabilizing cartels and promoting Type A leniency, the wildcard of a possible individual whistleblower certainly moves the cost/benefit analysis of seeking Type A leniency towards self-disclosure.

Thanks for reading.

Bob Connolly

bob@reconnollylaw.com

[1]  One contributing factor to the apparent decline in leniency applications may be a dramatic reduction in “hot documents” that cartel members—particularly foreign members –are creating.  After a decade of being put in jail in the United States and hunted down with Red Notices and border watches, it is likely that cartel members have gotten the message that they (and their records) are not beyond the reach of the US antitrust laws.  Hopefully, this has resulted in a reduction in the formation of cartels.  It most assuredly has led to a decrease in the amount of explicit cartel emails/documents/travel records that are created.  The lack of “hot documents” must also factor into a companies’ decision about whether to seek Type A leniency.  The fewer hot documents are being created, the greater the need for individuals to come forward.

Assistant Attorney General Makan Delrahim gave a talk on Friday, May 10, 2019 at an ABA Antitrust Section of Law conference in Buenos Aires, Argentina. The full remarks can be read here.

Mr. Delrahim made reference to two policy changes that are in the works involving two key Antitrust Division policies : 1) Corporate Leniency; and 2) Credit for Compliance Programs.  This talk did not indicate what changes may be in store, but Mr. Delrahim’s remarks are worth noting (in italics below):

Leniency Policy

The Antitrust Division has several important tools for detecting cartels, but the leniency program has proven to be our most effective tool by far.  Under the Antitrust Division’s Corporate Leniency Policy, the company (and any cooperating employee) that first reports its involvement in illegal activity can qualify for a complete pass from criminal prosecution in exchange for providing comprehensive cooperation to the Antitrust Division during its investigation.

As of now, over 80 jurisdictions across the globe have developed leniency programs, including nine so far in Latin America.  These programs have changed the landscape of antitrust enforcement throughout the Americas.

 One area where we are taking steps to improve is to protect against the imposition of duplicative penalties.  We hope to ensure that each jurisdiction imposes penalties that reflect the specific harm to its own markets and consumers.  One simple way to achieve this goal is for enforcers to have open discussions about our methodologies for calculating fines in specific cases. These dialogues not only may help prevent overlapping fines and decrease unnecessary burdens on parties, but also can ensure that penalties cover the full scope of the harm caused by the cartel.  

Corporate Compliance Programs

One option [to credit robust compliance programs] would involve formally recognizing that even a good corporate citizen with a comprehensive compliance program may nevertheless find itself implicated in a cartel investigation. While we have credited extraordinary prospective commitment to corporate compliance before, we are also considering how to credit robust compliance programs at the charging stage, even when efforts to deter and detect misconduct were not fully successful in this particular instance.

The Antitrust Division long has been home to the ultimate credit for an effective compliance program that detects and allows prompt self-reporting—leniency.  Going forward, however, leniency will no longer be the only benefit.

 Whatever the exact nature of our policy changes, the Division will move away from its previous refrain that leniency is the only potential reward for companies with an effective and robust compliance program.  In line with the Department of Justice and its other components, we can and must do more to reward and incentivize good corporate citizenship.

https://www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-remarks-american-bar-association

Some Thoughts on These Potential Developments

The Criminal Division of the Department of Justice recently released guidelines for the Evaluation of Corporate Compliance Program (April 2019) here.  These guidelines do not cover the Antitrust Division but are still helpful in understanding factors that may result in credit for antitrust compliance programs.

Mr. Delrahim quoted Mexican film director Alejandro Gonzalez Inarrutu who said, “To question your own process is a necessity.  If you don’t question yourself, it’s impossible to improve.”   I encourage the Antitrust Division to question whether sweetening the pot for corporate whistleblowers is the only way to strengthen the Corporate Leniency Policy and increase cartel enforcement.  It’s time for a whistleblower provision to reward individuals, not just companies, who come forward.  Kimberly Justice (Freed Kanner London & Millen) and I have had careers as prosecutors in the Philadelphia Field Office of the Antitrust Division.  We are now in private practice and deal with potential whistleblowers.  We have written two articles that more fully explain how and why a cartel whistleblower statute would work: The Political Stars Align for a Criminal Antitrust Whistleblower statute,  February 8, 2019, Antitrust Law Daily, available at http://business.cch.com/ald/ALD_Criminal-Antitrust-Whistleblower-Statute_20190208.pdf; and It’s a Crime There Isn’t a Criminal Antitrust Whistleblower Statute, Antitrust Law Daily April 5, 2018, available at http://business.cch.com/ald/ALD_Criminal-Antitrust-Whistleblower-Statute_04-05-2018_final_locked.pdf.

Two points I’d like to address here, because I believe they are misunderstood, is that an individual whistleblower program:

1) would enhance, not undermine, the Corporate Leniency Program; and

2) a cartel individual whistleblower statute would also enhance, not undermine, corporate compliance programs.

1.  Individual Whistleblowing Incentives Will Lead to Increased Corporate Leniency Applications

Whether one believes that leniency applications are down (at least for major international cartels), or whether leniency applications are in line with historical norms, there is no reason that the Corporate Leniency Program should not be improved.  A cartel whistleblower statute will increase, not decrease, the effectiveness of the corporate leniency program.

Type A Leniency

There are no public statistics but anecdotally attorneys suggest that some companies that discover cartel issues are not coming forward with Type A leniency because the costs of cooperation and civil damage suits outweigh the benefits of sitting back and hoping the cartel is never discovered.[1]  The discussion in the corporate board room about what to do with a discovered cartel problem will be quite different if the company has to worry about an individual whistleblower having incentives to report the wrongdoing.  Currently, a company may (and some allegedly have) bet that another cartel member won’t go in for Type A leniency because that company faces the same enormous collateral consequences of exposing the cartel.  An individual whistleblower, of course, faces enormous blowback from being a whistleblower, but a possible financial reward may overcome these disincentives.  In terms of destabilizing cartels and promoting Type A leniency, the wildcard of a possible individual whistleblower certainly moves the cost/benefit analysis of seeking Type A leniency towards self-disclosure.

 Type B Leniency

Individual whistleblowers will also help generate Type B leniency applications.  Type B leniency is available even after an investigation has begun as long as the “[t]he Division, at the time the corporation comes in, does not yet have evidence against the company that is likely to result in a sustainable conviction.”[2]  A whistleblower, therefore, does not preclude the granting of a leniency application in the investigation.

Here are couple of realistic scenarios where an individual whistleblower, if protected from retaliation and compensated for the enormous financial cost of exposing a cartel, might come forward, either to start an investigation or greatly advance an existing investigation:

Whistleblower Illustration 1: A sales representative who is assigned to attend working group meetings.  Once there is word of an investigation, this type of whistleblower may come forward.  Type B Corporate Leniency would still be available to one company and once an investigation obtains credibility/inevitability, the odds of a company breaking ranks and seeking that one leniency are high.

Whistleblower Illustration 2: An estimator who is told to give bid prices to a competitors.  When the authors were in the Philadelphia office, we started numerous grand jury investigations that were far from sure things.  We would be doing cartwheels in the hall if this type of whistleblower came forward when subpoenas were served. In all likelihood, however, we would need more witnesses and documents before the indictable evidence threshold was reached and  leniency was unavailable.  With an insider cooperating, the likelihood of a company seeking Type B leniency is high.

In either of these situations, not only would a whistleblower be able to start/enhance a credible grand jury investigation, but the opportunity might exist for search warrants, consensual monitoring and other investigative techniques that can greatly collapse the time and resources needed to uncover, prosecute and extinguish a cartel.

2)  An Individual Whistleblower Program Would Have a Positive Effect on Corporate Compliance Programs

Concern has been expressed that an individual whistleblower program would undermine corporate compliance programs because an individual could go directly to the government and financially benefit from exposing an existing a cartel instead of first bringing it to the attention of the corporation.  We agree that antitrust compliance programs are a positive part of a corporate culture but we disagree that an individual whistleblower statute would discourage effective corporate compliance programs. We believe a cartel whistleblower statute would make antitrust compliance programs even more necessary because the risk of getting caught would be increased.

The need for a corporate compliance program is related in part to the possibility of wrongdoing being exposed.  The words of “Not Quite A Crazy As he Used To Be ‘Crazy Eddie’” might be the lead in to every antitrust compliance program if there was a cartel whistleblower statute:

            In the two decades I was deeply involved in the Crazy Eddie fraud, the only threat made us lose sleep at night was the possibility of a whistleblower blowing the lid on our crimes. Consistent studies by the Association of Certified Fraud Examiners have shown that most frauds are exposed by whistleblowers, far ahead of frauds exposed by any other source. The SEC will be handing a gift to white-collar criminals if it reduces whistleblower bounties.

Sam E. Antar, Former Crazy Eddie CFO, former CPA, and a convicted felon.[3]

Also, as noted, even with a credible whistleblower coming forward, the Antitrust Division still has a corporate leniency in its cooperation arsenal.  Both authors, when we were with the Antitrust Division, successfully used affirmative amnesty—approaching a subject corporation, making a reverse proffer of their involvement in a cartel and giving a deadline for coming forward with a corporate leniency application.  If a whistleblower comes forward, the Division can learn what type of compliance program that company had and make a decision about whether an affirmative amnesty approach may be justified.  Of course, it may be the whistleblower did not report the matter internally because the CEO was involved directly. Or perhaps the whistleblower did complain internally and was shut down.  Or maybe the company had a good compliance program and this was a mid-level hatched conspiracy.  In any event, the existence of a whistleblower does not rule out the possibility of leniency for the whistleblower’s company. Moreover, even if the company does not obtain the leniency, the Antitrust Division has other ways of rewarding a robust—but ultimately unsuccessful whistleblower program.

Let’s Have A Criminal Cartel Whistleblower Roundtable—Please

 The Antitrust Division has commendably held roundtables on a number of potential policy issues/changes.  A roundtable on this issue “Should there be a whistleblower award for individuals who expose criminal antitrust cartels?” would be a great way to get divergent views on whether and how individual cartel whistleblowers should be rewarded.

[1]  One contributing factor to the apparent decline in leniency applications may be a dramatic reduction in “hot documents” that cartel members—particularly foreign members –are creating.  After a decade of being put in jail in the United States and hunted down with Red Notices and border watches, it is likely that cartel members have gotten the message that they (and their records) are not beyond the reach of the US antitrust laws.  Hopefully, this has resulted in a reduction in the formation of cartels.  It most assuredly has led to a decrease in the amount of explicit cartel emails/documents/travel records that are created.  The lack of “hot documents” must also factor into a companies’ decision about whether to seek Type A leniency.  The fewer hot documents are being created, the greater the need for individuals to come forward.

[2] Antitrust Division Corporate Leniency Policy (1993), available at https://www.justice.gov/atr/file/810281/download.

[3] Mr. Antar was commenting on why he thought it was a bad idea for the SEC to put a cap on the dollar amount of whistleblower award.  Wall Street Journal, June 29, 2018, SEC Seeks Right to Cut Whistleblower Bounties, available at https://www.wsj.com/articles/sec-proposes-whistleblower-awards-for-smaller-cases-1530212390.

Thanks for reading.  Due to technical difficulties (and blog owner IT incompetency), the comment link on this blog is not working.  Please feel free to contact me at

bob@reconnollylaw.com

or LinkedIn

Turning to the role of state-owned-enterprises, over the past few decades, SOEs have increasingly played a more prominent role in international commerce.  In fact, some of the largest companies in the world are SOEs, including numerous Chinese companies.  To the extent those companies engage in anticompetitive commercial behavior that harms the United States market, the Antitrust Division will challenge such behavior and subject foreign SOEs “to the U.S. antitrust laws to the same extent as the activities of privately owned firms.”  As Assistant Attorney General Makan Delrahim said last year, in the United States state-owned enterprises that are engaged in commercial activity are not immune from the antitrust laws and “where competitors come together to engage in collusive or anticompetitive behavior, we will bring all our enforcement tools to bear.”

Anyone who has ever worked in the Antitrust Division, U.S. Department of Justice has described it as the best job they ever had.  I’m included in that group.  So when I noticed what looked like an unusually large number of experienced attorney job positions being advertised, I thought I’d pass on the USA jobs link here.

There are various positions being advertised on both the civil and criminal side.  If you’re interested, good luck.   If you have any questions, I might be able to help answer them.

Bob Connolly

bob@reconnollylaw.com.

On Thursday March 28th the Antitrust Division issued the press release below with a link to its annual newsletter:

Bob Connolly  bob@reconnollylaw.com

             I have been very interested in constitutional challenges to the per se rule in criminal Section 1 Sherman Act prosecutions.  I have reluctantly come to the conclusion that the per se rule is unconstitutional.  I say “reluctantly” because I do believe that cartels are “the supreme evil of antitrust” and I offer some fixes to still maintain a robust cartel enforcement program.

I have two versions of the article.  I posted the full version on the SSRN website (here)  and very much appreciate any comments for those that are interested.  I have a shorter version on Law 360 (here) but this is behind a firewall.  If you don’t have Law 360, you can email me and I’ll send a copy.

This is the opening paragraph of the article on Law 360:

**************************************

The per se rule for horizontal price-fixing and bid-rigging has been entrenched in  Supreme Court jurisprudence since at least United States v. Socony-Vacuum Oil Co., in 1940. That may change in the near future.

Challenges in lower courts to the per se rule have become more frequent. While these challenges have been repelled by Supreme Court precedent, the current Supreme Court may be receptive to revisiting the per se rule.

Justices Sonia Sotomayor and Neil Gorsuch, while representing so-called different wings of the Supreme Court, have taken an interest in cases where the defendant claims he has been denied the right to a jury trial. Justice Gorsuch’s bent as a “textualist” will also find support from other justices to hold that the Supreme Court improperly created the per se rule. While members of the Supreme Court will take different approaches, the per se jury instruction in criminal Sherman Act trials will fall.

In a per se case, the court, not the jury, decides whether the alleged agreement violated the Sherman Act. The jury only decides whether the charged agreement existed and whether the defendant joined the agreement. Justices Gorsuch and Sotomayor will lead a majority to hold that: (1) the per se rule is a substantive rule of law, which only Congress, not the Supreme Court can create; and (2) this substantive per se rule improperly takes away the defendant’s Sixth Amendment right to have the jury be the fact finder regarding whether the agreement charged in a Sherman Act indictment actually was a restraint of trade.

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Thanks for reading Bob Connolly   bob@reconnollylaw.com

The End Is Near for the Per Se Rule in Criminal Antitrust Cases:

https://www.law360.com/competition/articles/1141024/how-per-se-rule-will-die-in-criminal-antitrust-cases

The End Is Near for the Per Se Rule in Criminal Antitrust Cases: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3356731