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9 N. Ky. L. Rev. 405 (1982)
Prophylactic Antitrust

handle is hein.journals/nkenlr9 and id is 417 raw text is: PROPHYLATIC ANTITRUST by Murray S. Monroe* I. THE NEED FOR COMPLIANCE When discussing antitrust compliance programs, most com- panies first ask lawyers why they need one. The answer ought to be obvious. In many, if not most, cases it is a question of self-preser- vation. The cost of failure to comply can be extremely burden- some. The Sherman Act provides for a million dollar corporate fine,1 but that is not the end of it. In Tennessee, a series of indict- ments have charged that bids to construct public roads in Tennes- see were rigged and that the practice has been going on for over forty years. Rather than a single, overall conspiracy, in most cases, the indictments treat each bid as a separate violation.2 Since there were approximately ten lettings a year, and fifteen or twenty con- tracts up for bids at each letting, it is readily apparent that poten- tial fines may total not $1 million, but many millions of dollars.8 From one company,, the government is seeking fines of $5 million for its alleged activity in only one state.' In addition, some consid- eration was given to including in the indictments a claim or claims * Member of the Ohio Bar and practicing attorney, Taft, Stettinius and Hollister, Cincin- nati, Ohio. B.E. and B.S. Yale University, 1946, 1947; LL.B. University of Pennsylvania, 1950. This article is based on a speech made on April 28, 1981, at the Antitrust Compliance Seminar sponsored by the Corporate Law Section of the Bar Association of Greater Cleve- land. The author wishes to acknowledge the valuable assistance of William J. Seitz, Esq., in the preparation of this article. 1. 15 U.S.C. §§ 1, 2, 3 (1976). 2. United States v. Ashland-Warren, Inc., 4 TRADE REO. REP. (CCH) 45,081 (M.D. Tenn. June 14, 1982). Bid-rigging on public highway projects has been the favorite target of the Antitrust Division's prosecutional efforts in the last three years. Indictments have been re- turned from Connecticut to Texas. There are serious due process and double jeopardy problems with such an approach. In Ashland- Warren, the court rendered an extensive opin- ion after an evidentiary hearing, concluding that while prosecution on five indictiments for bid-rigging in Tennessee was not foreclosed on double jeopardy grounds, such prosecution was so inconsistent with the Antitrust Division's prior practice that the government was required to show cause why the remaining indictment should not be dismissed after trial on one of the five indictments. In any event, double jeopardy claims have met with disparate degrees of success in criminal antitrust cases. Cf. United States v. Wilshire Oil Co., 427 F.2d 969 (10th Cir.), cert. denied, 400 U.S. 829 (1970) with United States v. American Honda, Inc., 273 F. Supp. 810 (N.D. Ill. 1967). 3. Fines are non-deductible. 26 U.S.C. § 162(f) (1976); Treas. Reg. 1.162-21(b)(1)(ii) (1975). 4. See supra note 2. The fines, totalling six million dollars, constitute the current record in criminal antiturst cases. Id.

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