Safe Havens

Price fixing, in violation of 15 U.S.C. § 1, should be considered a safe haven, since the statute prohibits only the conscious agreement to fix prices.  Price fixing does not include any elements of theft or fraud, and is a mere regulatory offense.[205] 

Section 1 of Title 15 of the United States Code states that:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $ 100,000,000 if a corporation, or, if any other person, $ 1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

Based upon the plain language of the federal statute, price fixing does not require fraud or any specific intent to deceive.  The United States Supreme Court has held price fixing agreements are per se illegal regardless of the defendant’s motives or intent.[206]  Therefore, a conviction under 15 U.S.C. § 1 should not be considered an aggravated felony as fraud, deceit,[207] or theft.[208]  See § § 7.80-7.82, 7.103, supra.

The United States Supreme Court has expressly characterized the federal anti-trust laws as “regulatory statutes.”[209]  Congress’ prohibition against antitrust behavior is an exercise of its power over interstate commerce in order to ensure active competition within the free market.[210]  The offense, therefore, is a malum prohibitum regulatory offense, and should not constitute crime of moral turpitude.  See § 7.108, supra.

[205] Thanks to Jennifer Foster for this analysis.

[206] United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940); see also United States v. Continential Group, Inc., 603 F.2d 444 (3d Cir. 1979) (not a defense that actions were motivated by pro-competitive forces, reasonable under prevailing economic conditions, without intent to defraud or deceive, and undertaken with consent of competitors); Bank of Utah v. Commercial Security Bank, 369 F.2d 19, 26 (10th Cir. 1966).

[207] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[208] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[209] Pillsbury Co. Et. Al. V. Conboy, 459 U.S. 248, 262-63 (1983).        

[210] Ibid.