Comments on U.S. Sentencing Commission’s Amendment Cycle Ending in 2016

Tue Aug 11 14:10:00 EDT 2015
By Todd Morrison, Tristan Diaz, et al.

On 31 July, the Criminal Practice Committee of the American Bar Association Section of Antitrust Law submitted comments on the United States Sentencing Commission’s Proposed Priorities for Amendment Cycle Ending May 1, 2016. In this document, the Committee acknowledged that the Commission has limited time and resources in each amendment cycle to devote to particular priority areas, but urged the Commission to remain focused on the study of the antitrust sentencing Guidelines for the following reasons:

First, the 10% overcharge assumption has not been questioned or evaluated by the Commission in over 28 years. Many commentators and scholars have issued studies and opinions concluding that the 10% overcharge is not an accurate assumption of the gain realized by conspirators. Second, the Guidelines do not provide any clarity or explanation on how to calculate the “volume of commerce affected” by the conspiracy, which composes the base fine in §2R1.1. Third, the Guidelines for individual conspirators have not been evaluated in many years, and it is unclear whether volume of commerce is a helpful factor in assessing an individual participant’s culpability. Finally, §2R1.1 does not provide any adjustment in corporate fines based on compliance programs, and in practice, the U.S. Department of Justice (“DOJ”) Antitrust Division does not give credit under §8C2.5(f)(3)(C) to companies that plead guilty.

NERA Senior Vice President Todd Morrison, with the assistance of Senior Analyst Tristan Diaz, contributed to the drafting of the letter, particularly the section entitled “10 Percent Overcharge.”

For more information or to read the document, please visit the ABA website.