ANTI-TRUST LAWS REVIEW AND REFRESHER FOR RUSTY REGULATORS, SENATORS, CONGRESSPERSONS, ASSEMBLYPERSONS, STATE SENATORS, PUBLIC SERVICE COMMISSIONS, NOT PAYING ATTENTION.

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WPCNR WHITE PLAINS LAW JOURNAL. From the Department of Justice. July 13, 2022:

ANTITRUST LAWS AND YOU

Many consumers have never heard of antitrust laws, but enforcement of these laws saves consumers millions and even billions of dollars a year. The Federal Government enforces three major Federal antitrust laws, and most states also have their own. Essentially, these laws prohibit business practices that unreasonably deprive consumers of the benefits of competition, resulting in higher prices for products and services.

The three major Federal antitrust laws are:

  • The Sherman Antitrust Act
  • The Clayton Act
  • The Federal Trade Commission Act.

The following information on these laws comes from the Antitrust Enforcement and the Consumer guide.

The Sherman Antitrust Act

This Act outlaws all contracts, combinations, and conspiracies that unreasonably restrain interstate and foreign trade. This includes agreements among competitors to fix prices, rig bids, and allocate customers, which are punishable as criminal felonies.

The Sherman Act also makes it a crime to monopolize any part of interstate commerce. An unlawful monopoly exists when one firm controls the market for a product or service, and it has obtained that market power, not because its product or service is superior to others, but by suppressing competition with anticompetitive conduct.

The Act, however, is not violated simply when one firm’s vigorous competition and lower prices take sales from its less efficient competitors; in that case, competition is working properly.

The Clayton Act

This Act is a civil statute (carrying no criminal penalties) that prohibits mergers or acquisitions that are likely to lessen competition. Under this Act, the Government challenges those mergers that are likely to increase prices to consumers. All persons considering a merger or acquisition above a certain size must notify both the Antitrust Division and the Federal Trade Commission. The Act also prohibits other business practices that may harm competition under certain circumstances.

The Federal Trade Commission Act

This Act prohibits unfair methods of competition in interstate commerce, but carries no criminal penalties. It also created the Federal Trade Commission to police violations of the Act.

Related Offenses

The Antitrust Division also often uses other laws to fight illegal activities that arise from conduct accompanying antitrust violations or that otherwise impact the competitive process, as well as offenses that involve the integrity of an antitrust or related investigation, including laws that prohibit false statements to Federal agencies, perjury, obstruction of justice, conspiracies to defraud the United States and mail and wire fraud. Each of these crimes carries its own fine and imprisonment term, which may be added to the fines and imprisonment terms for antitrust law violations.

(Editor’s Note:) The most common anti-trust behavior on the part of businesses is collusion. The Justice Department provides these examples:)

“Most criminal antitrust presecutions involve price fixing, bid rigging, or market division or allocation schemes. Each of these forms of collusion may be prosecuted criminally if they occurred at least in part, within the past five years.

Proving such a crime does not require us (The Department of Justice) to show that the conspirators entered into a formal written or express agreement.

Price fixing, bid rigging, and other collusive agreements can be established either by direct evidence, such as the testimony of a participant, or by circumstantial evidence, such as suspicious bid patterns, travel and expense reports, telephone records, and business diary entries.

Under the law, price-fixing and bid-rigging schemes are per se violations of the Sherman Act. This means that where such a collusive scheme has been established, it cannot be justified under the law by arguments or evidence that, for example, the agreed-upon prices were reasonable, the agreement was necessary to prevent or eliminate price-cutting or ruinous competition, or the conspirators were merely trying to make sure that each got a fair share of the market.

Price fixing is an agreement among competitors to raise, fix, or otherwise maintain the price at which their goods, or services are sold.

It is not necessarily that competitors agree to charge exactly the same price, or that every competitor in a given industry join the conspiracy.

Price fixing can take many forms, and any agreement that restricts price competition violates the law.

Examples of Price-Fixing agreements include those to:

  • Establish or adhere to price discounts.
  • Hold prices firm.
  • Eliminate or reduce discounts.
  • Adopt a standard formula for computing prices.
  • Maintain certain price differentials between different types, sizes, or quantities of products.
  • Adhere to a minimum fee or price schedule.
  • Fix Credit terms.
  • Not advertise prices.

For more information, email antitrust.complaints@usdoj.gov or phone 1-888-647-3288

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