Cartel regulation—USA—Q&A guide

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Cartel regulation—USA—Q&A guide
  • 1. What is the relevant legislation?
  • 2. Which authority investigates cartel matters? Is there a separate prosecution authority? Are cartel matters adjudicated or determined by the enforcement agency, a separate tribunal or the courts?
  • 3. Have there been any recent changes, or proposals for change, to the regime?
  • 4. What is the substantive law on cartels in the jurisdiction?
  • 5. To what extent are joint ventures and strategic alliances potentially subject to the cartel laws?
  • 6. Does the law apply to individuals, corporations and other entities?
  • 7. Does the regime apply to conduct that takes place outside the jurisdiction (including indirect sales into the jurisdiction)? If so, on what jurisdictional basis?
  • 8. Is there an exemption or defence for conduct that only affects customers or other parties outside the jurisdiction?
  • 9. Are there any industry-specific infringements? Are there any industry-specific defences or exemptions?
  • More...

Cartel regulation—USA—Q&A guide

This Practice Note contains a jurisdiction-specific Q&A guide to cartel regulation in USA published as part of the Lexology Getting the Deal Through series by Law Business Research (published: February 2021).

Authors: Dechert LLP—Steven E. Bizar; Julia Chapman

1. What is the relevant legislation?

The primary statutory basis for federal cartel enforcement in the US is section 1 of the Sherman Act (15 USC section 1), which prohibits 'every contract, combination . . . or conspiracy . . . in restraint of trade'. The Federal Trade Commission Act prohibits 'unfair methods of competition' and 'unfair or deceptive acts or practices'. The Federal Trade Commission (FTC) does not technically enforce the Sherman Act, it instead relies on the FTC Act to challenge conduct that would also violate the Sherman Act. Also, the FTC may bring cases under the FTC Act challenging coordinated conduct that is beyond the scope of the Sherman Act, such as invitations to collude. On the state level, state antitrust and unfair competition laws substantially prohibit the same conduct as their federal counterparts and, depending on the state, may provide for criminal and civil enforcement.

2. Which authority investigates cartel matters? Is there a separate prosecution authority? Are cartel matters adjudicated or determined by the enforcement agency, a separate tribunal or the courts?

There are three principal enforcers of the federal antitrust laws. The US

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