The Sherman Act is An Unconstitutional Criminal Statute (Part II)

The Sherman Act is An Unconstitutional Criminal Statute (Part II)Posted by Robert Connolly

In Part 1 of this article (here), I argued that the Sherman Act was unconstitutional as a criminal statute because it is void for vagueness. A statute that criminalizes all restraints of trade cannot be saved by the Supreme Court explaining what Congress really must have really meant. What passed constitutional muster when the Sherman Act was a misdemeanor[1] merits another look now that the statute carries a maximum jail time of 10 years in prison.
In Part II I discuss how I think the criminal element of the Sherman Act should be fixed.
 The Heir Locators Criminal Indictment May Make This Issue Topical
I want to explain why this topic has come to mind. The Antitrust Division’s heir locators investigation/prosecution garners little attention in the world of massive international cartel investigations, but an indictment in this investigation could have major implications for criminal antitrust prosecutions.[2] In a recent development, the trial judge ruled that the criminal case should be tried under the Rule of Reason. It is possible this development will set off a chain of events that leads to the Supreme Court revisiting what is necessary for a criminal conviction under the Sherman Act.
Heir locator firms locate potential heirs to an estate from public records and agree to help with their claim in return for a contingency fee. The amount of the contingency fee depends on factors such as the complexity of the claim, potential recovery etc. Since the potential heirs are located from public records, they may be contacted by more than one heir locator firm. According to the indictment, the defendants agreed to allocate customers on a “first to contact basis.” The firm to which the customers were allocated would pay the firm that “backed off” a percentage of the contingency recovered. The Division has obtained two guilty pleas in the investigation but defendants Kemp & Associates and its co-owner Daniel J. Mannix were indicted in August 2016 and have pled not guilty.

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