New Criminal Charges Confirm that Companies Cannot Evade Antitrust Exposure by Communicating in Increasingly High-Tech Ways
As we recently observed, the antitrust enforcement agencies believe they have the tools they need to catch people attempting to use modern technology to evade the century-old Sherman Act. On August 7, 2017, the Antitrust Division of the U.S. Department of Justice (DOJ) confirmed this capability when it brought antitrust charges against an e-commerce company and its top executive in the U.S. District Court for the Southern District of Texas.1
The DOJ alleged that the defendant and co-conspirators violated Section 1 of the Sherman Act by scheming to fix prices for products sold online.2 According to the DOJ’s criminal information, the defendant and co-conspirators agreed both in person and online to fix the prices of customized products, including wristbands and lanyards, sold to customers in the United States.3 The conspiracy allegedly took place between October 2014 through at least June 2016,4 and the co-conspirators attempted to avoid exposure through the use of text messages and high-tech “social media platforms and encrypted messaging applications.”5
The e-commerce company and its executive agreed to plead guilty to a one-count criminal violation of the Sherman Act.6 In addition to the guilty plea, the company has agreed to pay a $1.9 million criminal fine.7 The defendants have also both agreed to cooperate with the DOJ’s ongoing investigation of other companies’ price fixing in the online promotional products industry. The plea agreements are subject to the approval of the federal district court.
Holland & Knight’s Antitrust Team is available to work with companies – both high-tech and low-tech – as they seek to navigate the complex antitrust enforcement world.
1 United States v. Makanojiya, 17-cr-00477 (S.D. Tex. Aug. 7, 2017).
2 Press Release, U.S. Dep’t of Justice, E-Commerce Company and Top Executive Agree to Plead Guilty to Price-Fixing Conspiracy for Customized Promotional Products (Aug. 7, 2017), available at https://www.justice.gov/opa/pr/e-commerce-company-and-top-executive-agree-plead-guilty-price-fixing-conspiracy-customized [hereinafter DOJ Press Release]
4 Makanojiya, at ¶ 5.
5 See DOJ Press Release; see also Makanojiya, at ¶ 8.