Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
Cartels
2.
Definitions and scope of application
2.1
How is a ‘cartel’ defined in the cartel legislation?
United States

Answer ... The Sherman Act does not specifically define cartel conduct. The Antitrust Division of the Department of Justice (DOJ) prosecutes naked agreements between competitors to fix prices, rig bids, divide customers or otherwise agree not to compete outside of the context of legitimate market activities such as joint ventures. The DOJ interprets ‘agreements’ broadly. Illegal agreements can be proven with circumstantial evidence and need not be formal or written agreements.

For more information about this answer please contact: Djordje Petkoski from Shearman & Sterling LLP
2.2
What specific offences are defined in the cartel legislation?
United States

Answer ... The Sherman Act does not define specific offences. The DOJ prosecutes price fixing, bid rigging and related agreements. It has also issued guidance that it will prosecute naked ‘no-poach’ agreements between companies not to hire each other’s employees.

For more information about this answer please contact: Djordje Petkoski from Shearman & Sterling LLP
2.3
Is liability under the cartel legislation civil, criminal or both?
United States

Answer ... Liability under the Sherman Act can be both criminal and civil.

For more information about this answer please contact: Djordje Petkoski from Shearman & Sterling LLP
2.4
Can both individuals and companies be prosecuted under the cartel legislation?
United States

Answer ... The DOJ prosecutes both individuals and companies for cartel conduct.

For more information about this answer please contact: Djordje Petkoski from Shearman & Sterling LLP
2.5
Can foreign companies be prosecuted under the cartel legislation?
United States

Answer ... The DOJ has consistently brought actions against foreign companies for conduct directed at or affecting domestic US markets. Many of the DOJ’s largest investigations have primarily targeted foreign corporations and individuals.

For more information about this answer please contact: Djordje Petkoski from Shearman & Sterling LLP
2.6
Does the cartel legislation have extraterritorial reach?
United States

Answer ... Section 1 of the Sherman Act applies to commerce between US states and commerce between the United States and other nations. The Foreign Trade Antitrust Improvements Act (FTAIA) defines the outer bounds of the extraterritorial reach of US antitrust law. Under the FTAIA, the Sherman Act reaches import commerce and non-import commerce with foreign nations having a “direct, substantial, and reasonably foreseeable” effect on domestic US commerce, which gives rise to a Sherman Act claim.

For more information about this answer please contact: Djordje Petkoski from Shearman & Sterling LLP
2.7
What is the statute of limitations to prosecute cartel offences in your jurisdiction?
United States

Answer ... The statute of limitations for criminal cartel offences is five years. The statute of limitations does not begin to run until the conduct has been completed or abandoned. Fraudulent concealment of the conspiracy does not stop the statute of limitations from running for criminal offences. The statute of limitations for most civil cartel offences is four years. For civil offences, fraudulent concealment can stop the running of the statute.

For more information about this answer please contact: Djordje Petkoski from Shearman & Sterling LLP
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Topic
Cartels