What Is United States Anti-Trust Law?

Although the term “antitrust law” may sound complex, it’s simply a way of referring to the body of law that prohibits anti-competitive behavior (a monopoly) or unfair business practices. The purpose of these laws it to promote competition and protect consumers.

There are three core federal antitrust laws. In 1890, Congress passed the first antitrust law, the Sherman Act. In 1914, Congress passed two additional antitrust laws, the Federal Trade Commission Act (creating the FTC), and the Clayton Act.

The Sherman Act

The Sherman Act forms the foundation for most federal antitrust law. The Act outlaws “every contract, combination… or conspiracy in restraint of trade,” and any monopolization, attempted monopolization, or conspiracy or combination to monopolize. The United States Supreme Court has held that the Sherman Act does not prohibit every restraint of trade; instead it only prohibits those that are unreasonable. The most frequent violations of the Act are price fixing and bid rigging, both of which are usually prosecuted as criminal violations.

The Federal Trade Commission Act

The Federal Trade Commission Act prohibits “unfair methods of competition” and “unfair or deceptive acts or practices.” The Act also created the Federal Trade Commission to police violations of the Act. The Act carries no criminal penalties.

The Clayton Act

The Clayton Act prohibits mergers or acquisitions that are likely to lessen competition, and other business practices that are likely to lessen competition. The Clayton Act is a civil statute, meaning there are no criminal penalties under the Act.

Criminal Penalties

If an individual or business violates the Sherman Act they may be prosecuted in federal court. The Department of Justice alone is empowered to bring criminal prosecutions under the Act.

The criminal penalties for violations under the Act can be up to $100 million for a corporation and $1 million for an individual, as well as a maximum of ten years in prison. Additionally, under federal law the maximum fine may be increased to twice the amount the conspirators gained from the illegal acts or twice the money lost by the victims of the crime, if either of those amounts is over $100 million.

In order to be convicted under the Sherman Act, the government has to satisfy certain elements. For there to be a violation of Section 1, there are three elements the government must prove:

(1) An agreement

(2) which unreasonably restrains competition, and

(3) which affects interstate commerce.

A Section 2 violation under the Sherman Act has two elements:

(1) The possession of monopoly power in the relevant market, and

(2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.

As with most federal crimes, the elements are very vague. Such vagueness allows U.S. Attorneys to liberally charge for violations of the statute. For example, under Section 1 there doesn’t necessarily have to be a verbal agreement, the agreement could be inferred from the parties’ conduct.

There has been a drastic increase in the number of individuals the U.S. Government is charging under the Sherman Act and an increase in the sentences that are being imposed. In 2004, the U.S. Sentencing Guidelines were revised and penalties for antitrust violations increased. In 2010, 78 defendants were sentenced to jail time under the Sherman Act for a total of 26,046 total days to be served. In 2000, 38 individuals were charged under the act and only served a total of 5,584 days in jail.

It should also be noted that whenever possible, the Department of Justice will prosecute and seek extradition of fugitive antitrust defendants. Historically, the Department of Justice could not even threaten extradition in criminal antitrust cases since the U.S. and Canada were the only jurisdictions that considered price-fixing to be a crime. [9] However, since 2010, the Department of Justice Antitrust Division has been successful in its efforts to have foreign nationals extradited to the United States for prosecution for antitrust violations. This change in extradition has come because more jurisdictions are criminalizing price-fixing.

Immigration Consequences

Many times the immigration consequences for an antitrust conviction are more severe than the criminal punishment. The U.S. Justice Department has a policy that treats violations of the Sherman Act as “crimes involving moral turpitude,” subjecting foreign executives to exclusion or deportation from the U.S. This policy is the called the “Memorandum of Understanding” (also known as “”MoU”) that is between the Antitrust Division of the Department of Justice and the Immigration and Customs Enforcement Division of the Department of Homeland Security. MoU specifically says it “[C]onsiders criminal violation of the Sherman Act… to be crimes involving moral turpitude, which may subject an alien to exclusion or deportation from the United States.”

Of interest is that most antitrust convictions are obtained against non-U.S. executives – and every one of these convictions but one has been by plea agreement rather than trial. The reason these non-U.S. executives plead guilty is not because of the strength of the Government’s case, but rather the threat of a U.S. travel ban. The 15-year minimum ban on travel to the United as a result of the MoU can be devastating to many foreign executives’ careers. This gives the Department of Justice leverage in securing guilty pleas. The MoU is included in nearly every plea agreement whereby the government will grant an exemption from travel restrictions to foreign executives in exchange for a guilty plea.

The pressure to plead guilty due to immigration consequences is depriving these non-U.S. executives of their right to a trial. Even in cases where the government lacks evidence they are still obtaining pleas of guilty from these executives. Since the majority of their cases end in a guilty plea, most U.S. Attorneys in the anti-trust division lack trial experience. In most cases, instead of pleading guilty these defendants should retain experienced trial attorneys to take their case to trial to obtain a not guilty verdict.

Leniency Program

According to the Department of Justice, its Antitrust Division’s Leniency Program is its most important investigative tool for detecting antitrust violations. If an individual or corporation reports the antitrust violation and cooperates with the investigation they can avoid criminal conviction, fines, and prison sentences if all the requirements of the program are met.

To be eligible for the leniency program, the individual or corporation must

(1) have taken prompt and effective action to terminate its participation in the anticompetitive activity being reported upon discovery of the activity; and

(2) did not coerce any other party to participate in the anticompetitive activity being reported and was not the leader in, or the originator of, the activity.

The applicant bears the burden of proving he or she is eligible to receive leniency. The applicant must also agree to provide full, continuing and complete cooperation with the Antitrust Division in connection with the anticompetitive activity being reported. This includes providing a full exposition of all facts known to the applicant relating to the anticompetitive activity, and providing all documents, information and other materials relating to the conduct.

If the applicant meets the requirements of the program, the Antitrust Division agrees to not bring any criminal prosecution against the applicant for any act or offense committed prior to the date of the agreement in connection with the anticompetitive behavior being reported.

The problem with the leniency program is that even if the applicant is eligible for the program and agrees to cooperate, the Antitrust Division only has to agree “conditionally” to accept the applicant into the leniency program. This means the division may revoke the leniency at any time (even after the applicant has already given the Antitrust Division incriminating statements and documents). Also, the leniency only relates to the antitrust conduct being reported, thus the applicant could still be charged for unrelated antitrust violations.

Family Law Courts Are The Perfect Option For Solving Family Disputes

There are several cases in the court of justice and the varieties in them ranges a lot. So, there are certain classifications in the courts present in any judicial system of the country. Some of them like civil, criminal, consumer, taxation and many more are categorised according to the types of cases that come in the court’s way. The specialization for the lawyers is even categorised. But, there are consultants and firms who help in all your legal problems and that mean, one place solution for all your problems. Suppose you have a family legal problem then how would you get family law lawyers and trust on his/her expertise if found one? It seems a hard task to talk about.

The family law courts deal with the cases related to family issues. Family issues are many and the list is quite big to lay out with a complete explanation. Some of them are, adoption, prenuptial agreements, marriage, divorce, separation, legal separation, property division after the death of the parents, division of property on the breakage of marriage, domestic violence (western countries are very strict on these issues, even a mother can be arrested for beating her child), child labour, abuse on marriage to the lady, parental rights, juvenile and many other issues which make sense for having a justice.

The family law courts are criticized a lot about not giving a proper justice and forwarding the case to those higher courts which demands more money and more family law lawyers. So, in a sense they are considered of no use but this is a complete false notion. Instead of the family court the losing party calls for the higher court’s justice. There are also some other issues that has been under the family courts like, the cases relating to, criminal laws inside family, property related laws, probation laws and so on.

The family courts are the most crowded places in almost every country. They deal mostly cases relating to social and economic issues and these are numbered more than any other cases. These courts include less complex cases. The clients who enter into lodging a complaint may be new in these terms and the process might be intimidating for certain people. But, it is perfectly fine about all these because here you abide by the government’s support as they ensure you justice.

One important thing is not to trust anybody out here in this field and hence you must thoroughly understand the terms of the laws. It might be a difficult task for you but the terms relating to your particular case are very important to understand. So, you can readily go for those and make sure nobody cheats you.

The US Justice Departments Little Lie

The Federal Trade Commission’s Consumer Division’s Franchising Group is not well known by consumers or the citizenry. Franchising in the United States Accounts for one-third every consumer dollar spent and 400,000 outlets or stores. The Federal Trade Commission over sees the franchising industry. Some franchisors believe the FTC desperately needs turn over at the franchising division. Some attorneys who make money suing franchisors on behalf of franchisees and vendors like things just the way they are and realize any change would tip the balance and they would lose income in a highly litigious and good paying sector of law.

One attorney we interviewed said in an email: “Well, I have to, very respectfully, disagree. Franchising has a good and competent friend in the FTC, and particularly with Steve Toporoff, who has lead responsibility for the FTC in this area.”

Yet the franchising community also knows that while at the helm there were no changes to the FTC Franchise Rule for over 10 years and this caused more hardship for franchisors who create jobs, tax base and economic vitality, which are important for a healthy economy. Now that the FTC has totally botched the franchising rules in our country and tilted the field in favor of not franchisor or franchise, not of free markets of free economies, but for attorneys to make more money due to incessant over regulation; these same attorneys wish to export these same ridiculous rules to other countries as well, thus giving our attorneys leverage and opening new markets for them.

One attorney stated; “I believe that the FTC, in general, does an excellent job, at least in the franchising area, which is the only field in which I have any meaningful experience. In addition, the proposed new rule is, again in general, a clear step forward toward more rational and effective franchise disclosure, and may well serve as the model for other countries’ attempts at rational regulation in this area.”

The current disclosure laws, which are mandatory are a set of 200 plus pages of disclosure documents given to franchise buyers before purchase. Each paragraph in the entire required disclosure is open for interpretation of law and possible lawsuits. The attorneys call this ‘rational regulation,’ I call it a windfall for them. There are few if any franchising complaints in the Industry. Even the complaints, which do come in are usually not real, just someone trying to get something for nothing. Most attorneys believe it is a good system never the less, not perfect they admit, but a good system indeed. Good for who? Good for them of course. Many franchisors have made there feelings known, here is an example of some of their comments;

http://www.ftc.gov/os/comments/franrulestaffrpt/OL-100001.pdf

The lack of law changes has helped increase franchising lawsuits over the years and instead of reducing regulation and paperwork these new sets of laws are going to increase it. More laws and rules mean more lawsuits of course. One attorney commented on this thought stating;

“While, in a perfect world, it might have been nice for the process of re-writing the FTC Franchise Rule to have moved along more quickly, we should be realistic and note that franchising is, frankly, not the FTC’s highest priority, perhaps because of the relatively low number of complaints it receives from Franchisees or others, compared to the large role franchising plays in the U. S. economy.”

These attorneys are busy hob knobbing with the government regulators and often get the inside story, yet if a franchisor calls up to criticize or point out flaws with the law they never receive a return phone call and if they are able to get through they are often ‘hung up on’ during the conversation when they try to explain their points. Why is it that lawyers have complete access to the government regulators, yet entrepreneurs who are responsible for everything in the world cannot get through? One attorney speaking about the FTC stated:

“I recall a conversation I had at a breakfast with one of the FTC Commissioners a few years ago in which I asked her if she saw any significant problems with franchising. After a few moments for thought, she replied that she didn’t, other than possible issues related to overlapping regulation by both the states and the feds.”

Interesting, but if there are no issues in franchising, why are we not having decreased regulations? The same attorney goes on to say:

“So, for me, the FTC has done a fine job in promulgating and revising the Franchise Rule over the years, particularly given that there are other areas of much greater concern to them, such as Bus. Opp. fraud, consumer financial privacy, the National Do Not Call Registry, regulation of Truth in Advertising, overseeing corporate mergers, etc.”

“We shouldn’t let our focus on franchising become parochial and forget that our field is just one small part of the big picture, at least from the FTC’s standpoint and probably from that of regulators generally. It’s probably a tribute to the relatively good health of franchising that we don’t get more regulatory attention than we do!”

Again the attorney seems to indicate that franchising is a small part of the FTC’s agenda and therefore not to worry, he likes things just the way they are. Of course he does, he is making money on the backs of franchisees and franchisors across America, why would he want anything to change? America, we need a regulatory reality check and we need it now. Think about it.

Expunging Criminal Records and Domestic Violence – Some Rules On Domestic Violence Records

Florida treats the crime of domestic violence (“DV”) in a distinct manner from other crimes. Floridians accused of DV typically go before specialized DV judges within the criminal court system (most counties have” domestic violence divisions”), are prosecuted by district attorneys who try only DV cases, and are subject to different rules of criminal procedure (for example, in many cases a person can bond out of jail after an arrest prior to seeing a judge, but this is not an option in DV arrests). It should come as no surprise, then, that the laws governing Florida record sealing or expungement also single out domestic violence arrests for special treatment.

The Florida statutes define domestic violence as any “assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” “Family” or “household member” are terms given rather broad meanings under Florida law, and include: spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit. So if you get into an argument with your ex-girlfriend or boyfriend that you used to live with….guess what? You can be arrested for domestic battery instead of simple battery. Same thing with a parent of your child, whether you ever lived together or not.

Good news first. If you are arrested for DV, but the charges against you are later dropped, never filed, or dismissed, you caneligible for Florida expungement, assuming you meet all other eligibility requirements. However, if the prosecutor decides to proceed against you, that DV arrest will remain on your record forever, unless you are acquitted at trial. Usually, if you meet all other eligibility requirements, you can seal a Florida record if you receive a withholding of adjudication after entering a no contest or guilty plea. Many arrestees, after twenty, thirty, sixty days or more sitting in custody awaiting trial, opt to plea, take a deal, and be released from jail (the criminal justice system is not known for moving quickly). Most deals offered are usually “time served” with adjudication withheld. In the case of simple battery or assault, this would be a good deal in terms of Florida expungement, because you could get out of jail(!), not risk going to trial if the evidence against you is strong, and later seal your record.

However, what is often not communicated by public defenders and even many private attorneys is that if you plead guilty or no contest to a DV charge, even a misdemeanor DV charge, you can never have your record sealed or expunged, whether or not adjudication is withheld. Under the Florida expungement statutes, domestic violence is listed as an “ineligible offense,” meaning any plea to a DV charge will automatically make you ineligible to seal or expunge the record.

While deterring domestic violence is a good public policy, permanently affecting someone’s life in this manner can be excessive, especially since there is no judicial remedy to address unjust results. Imagine that you get into a fight with your live-in partner. Things get heated and you are arguing loudly. Your neighbors call the police. Before the police arrive, you end up dumping your glass of water on your partner’s head. Not a nice thing to do, admittedly. But when the police arrive, they arrest you for domestic violence. You plea to misdemeanor domestic battery, time served and adjudication withheld. Now you are stuck with that arrest on your record forever. Any background check that is run in connection with a job search, apartment search, loan application, etc. will reveal that you are a perpetrator of domestic violence. Do you think you will get the chance to explain that it was only a one-time incident and only a glass of water…?

Please keep in mind, however, a lot of people are arrested for domestic battery and then plea down to simple battery and get adjudication withheld on that charge. Then you may eligible to seal under Florida law. It is the charge that you ultimately plea to and have adjudication withheld on, not your arrest charge, that determines your eligibility for record sealing and expungement. Also, it may happen that you are arrested and charged for domestic violence for a fight with a significant other, when you have never lived together. Challenge it and fight it if you don’t fall under the domestic violence statutory definitions of “family member” or “household member”- if you don’t, it can have long reaching consequences for your life and future.

Pre-Crime Law and Surveillance – What is the Real Deal On That?

It is widely known that in the United States you cannot arrest someone without a probable cause, and you’re not even allowed to detain them. That’s the rules we have to protect freedom and liberty in our great nation. Of course, over the last decade, and in the age of international terrorism, some folks are trying to rethink some of these things in order to protect our citizens. That’s why we have The Department of Homeland Security or DHS.

There was an interesting article in Homeland Security Online News recently which was published on June 9, 2011 in the law enforcement technology category, the title of the article was “A Machine That Predicts Crime,” and the article stated;

“The very effort by individuals who are intent on committing a crime to mask their intent has detectable physiological manifestations; it should thus be possible to build a sensor which would identify these manifestations and correlate them with the underlying malintent.”

It is estimated by the intelligence industrial complex that such surveillance systems in airports could help profile problematic individuals, and potential terrorists. The name of this technology is called “Future Attribute Screening Technology” or FAST, and there is real science behind this. You see people who act nervous, or walk a certain way, or act a certain way will often tip off by their behavior and their future intent to do harm, steal, or commit a terrorist act.

Anyone who has ever “people watched” knows that there are subtle signs that people make when they are shady characters. Having an electronic surveillance system which picks up such minor clues to future behavior could save lives. Of course, unfortunately it sounds a lot like the “Pre-Crime Division” which was depicted in the famous Hollywood movie with Tom cruise; “Minority Report” -and therefore there are sure to be critics, even if this electronic profiling system works great.

Now then, if a terrorist is stopped at an airport for suspicious behavior, and detained, and then it is later found out that they had criminal intent, that case could be thrown out because they were stopped without probable cause. Theoretically, even if it was an electronic system that did the profiling, we still know that, this is beyond the rules of our criminal justice laws.

There will be some interesting case law that comes forth in the future as more and more these systems are integrated into airport terminals, train stations, bus stations, and in other places such as government buildings in the future. Indeed I hope you will please consider all this and think on it, specifically the ramifications to criminal law.