Comments and Proposed Revisions Submitted to U.S. Sentencing Commission Regarding USSG 2R1.1 (Antitrust Offenses)
15 Pages Posted: 2 Aug 2014 Last revised: 13 Nov 2017
Date Written: July 29, 2014
I submitted a letter to the U.S Sentencing Commission outlining concerns that I have with USSG 2R1.1 (Antitrust Offenses -- Price Fixing/Bid Rigging) as the guidelines apply to individuals.
The letter sets 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 deemphasized 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 explain how the failure of the guidelines to reflect an individual's culpability has led Courts to nearly uniformly depart from the guidelines sentence, even when recommended by the prosecutors.
Finally, the letter asks the Commission to consider suggested possible reforms that will better reflect an individual's personal culpability when determining a recommend guideline sentence for an antitrust offense.
Keywords: antitrust offenses, volume of commerce, 2R1.1, bid rigging, price fixing, guidelines reform
JEL Classification: K21, K42, L40
Suggested Citation: Suggested Citation