William & Mary Business Law Review
Abstract
The Supreme Court has called collusion between firms the “supreme evil” of antitrust. Despite public and private enforcement efforts, collusive firms and the cartels they form cost American consumers billions of dollars a year and undermine the virtues of our free market economy. The Chicago School theory of antitrust enforcement, which has dominated antitrust scholarship, vehemently disapproves of private antitrust actions that enable plaintiffs to recover treble damages. Recent scholarship, however, has rejected the Chicago School’s concerns of overdeterrence and embraced the treble damages remedy. This Note follows the recent scholarship and proposes the New Per Se Rule, which would impose per se civil liability—including treble damages—on firms that are criminally convicted of collusion and those firms’ executives, regardless of whether or not the executives are individually prosecuted or convicted. The New Per Se Rule will radically alter the decision-making formulas of firms and their agents, likely transforming collusion from a rational and profitable business strategy into an irrational and unprofitable one. More importantly, the New Per Se Rule will strike at the root cause of collusion: firm executives. The New Per Se Rule will make it irrational for firm executives to engage in or allow the firm they command to engage in collusive activity. Once collusion is irrational, the “supreme evil” will cease to plague our economy. *