In criminal antitrust cases, the U.S. Sentencing Guidelines, while no longer binding on judges, nevertheless provide for draconian enhancements based on the so-called “volume of commerce” involved in the scheme. Over the past few years, the Department of Justice Antitrust Division has increasingly focused its enforcement actions on industry-wide cartels and global market conspiracies where literally hundreds of millions (if not billions) of dollars in commerce may be at issue. The vast scale of these cases leads directly to the possibility of lengthy prison sentences and hefty fines, even absent any other aggravating factors. Unfortunately, those federal appellate courts that have interpreted the scope of volume of commerce do not fully agree on the proper methodology to calculate this crucial metric.

Guidelines Language

Sentencing Guideline §2R1.1 establishes a base offense level of 12 for cases involving a violation of the Sherman Antitrust Act. The table found at §2R1.1(b)(2) provides for upward adjustments, ranging in two-point increments, from a minimum of 2 to a maximum of 16 levels, if the “volume of commerce attributable to the defendant was more than $1,000,000.” An antitrust offense involving more than $40,000,000 but less than $100,000,000 in volume of commerce, for example, would yield a 6-level adjustment. Such an enhancement could add years of potential jail time to the applicable Guidelines range.

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