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O’Melveny Antitrust Lawyers Publish Article in George Mason Law ReviewSeptember 01, 2011 O’Melveny Washington, DC associate Julia Schiller, partner Ian Simmons, and counsel Angela Thaler Wilks recently published the article “Towards Convergence: The Volume of ‘Affected’ Commerce Under the US Sentencing Guidelines and ‘Impact’ Analysis Under the Clayton Act,” in the Summer 2011 issue of the George Mason Law Review.
The authors open the article noting that “it may strike some as a paradox that, despite the fact that criminal antitrust cases are subject to a higher burden of proof than their civil counterparts, when it comes to the question of showing impact from an alleged violation the level of rigor evinced in the civil setting far exceeds that in the criminal setting.”
The article is divided into four parts. In Part I, the authors discuss the “volume of affected commerce” provision of the Sentencing Guidelines and courts of appeals‟ differing interpretations of the phrase. Part II explains the impact of the 2005 Supreme Court case United States v. Booker and its progeny on the use of the Sentencing Guidelines‟ proxy for harm in determining criminal antitrust fines. This is followed by a discussion, based in economic theory, of why the Sentencing Guidelines‟ presumption that the harm resulting from a conspiracy is equal to “20 percent of the volume of affected commerce” is flawed. Part III contrasts this with the analysis that plaintiffs must perform in order to recover damages in a civil case brought under Section 4 of the Clayton Act. Finally, in Part IV, the article discusses the difficulties with and possibilities of using a civil-style impact analysis in a criminal case. The authors conclude the article stating that this type of analysis is appropriate in criminal cases and argues that the government should be put to its proof more frequently.