Rambus (RMBS)

[Threejack]

re: Did the legislation come to pass?


In a word, yes. Courtesy Global Competition Review; emphasis mine.

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Snip:

In 2004, Congress responded by passing the Antitrust Criminal Penalty Enhancement and Reform Act of 2004, which the president signed into law on 22 June 2004.2 The law raised the statutory maximum fine for corporations to $100 million (from $10 million) and for individuals to $1 million (from $350,000). In addition, the Act increased the maximum prison term to 10 years per violation (from three years). The increase in the maximum prison term is particularly significant because the newly revised Sentencing Guidelines for antitrust crimes provide for jail terms of six or more years in cases involving a great deal of commerce.3 The new higher fines and jail terms apply only to antitrust violations committed after the law was enacted; therefore, we have not yet begun to see the impact on actual sentencing.

With the passage of the Act, one can legitimately ask whether the United States has reached the point of too much deterrence. The glib answer, perhaps, is that since hard-core cartel conduct has no economically-redeeming qualities, one can never have ‘too much’ deterrence—the higher the fines and the longer the jail terms, the better! Unfortunately, the issue is not that simple. While, from society’s standpoint, true hard-core cartels have nothing to commend them, the United States’ legal system has not yet reached (nor is it likely to ever to reach) perfection. Mistakes are made. Despite the government’s steep burden of proof, juries sometimes incorrectly find agreements in circumstances where they did not in fact exist. Moreover, the rule of per se illegality for price-fixing prevents defendants from introducing evidence to show that what might appear superficially to be a price-fixing cartel was actually an efficiency-enhancing collaboration. Even more troubling, companies—particularly mid-sized companies for which a $100 million fine would be tantamount to a death sentence—might steer clear of novel collaborative conduct that holds some promise of generating efficiencies or technological innovations because of the in terrorem threat of gargantuan fines and interminable jail terms. It’s too early to tell whether, with the passage of the Act, the United States has now reached that point.

In addition to adding significant heft to the antitrust ‘stick’, the Act also substantially sweetened the ‘carrot’ of corporate leniency. The Act contains provisions that allow defendants who cooperate under the Leniency Policy the opportunity to limit their exposure to treble damages in private follow-on suits. Under the Act, when an amnesty recipient provides cooperation to private plaintiffs and the court deems the cooperation satisfactory, the amnesty recipient will be liable for only single damages based on the recipient’s own volume of commerce in the conspiracy (normally, a conspirator is jointly and severally liable for treble damages based on the volume of the conspiracy as a whole). The Act explicitly applies to private suits under the federal antitrust laws as well as “any similar State law”.4

This de-trebling aspect of the Act substantially increases the incentive to apply for corporate leniency from the Department. In theory, by eliminating the compounding effect of trebling, as well as joint and several liability, the de-trebling provision could protect a corporate antitrust violator from billions of dollars in potential liability. Thus far, this provision has been utilised in one case where defendants have sought to limit their liability to single damages.5 Because this provision is a new experiment, it contains ‘sunset’ provisions in which the provision expires in five years unless reauthorised by Congress.

http://www.globalcompetitionreview.com/ara/us_criminalisation.cfm

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Read it again, slowly.

".....Under the Act, when an amnesty recipient provides cooperation to private plaintiffs and the court deems the cooperation satisfactory, the amnesty recipient will be liable for only single damages based on the recipient’s own volume of commerce in the conspiracy (normally, a conspirator is jointly and severally liable for treble damages based on the volume of the conspiracy as a whole). The Act explicitly applies to private suits under the federal antitrust laws as well as “any similar State law”...."

This provision almost seems written for Micron given the timing of the DOJ DRAM investigation. My guess is Micron was already in the leniency program when this Act passed.

Micron is one mighty lucky outfit. Just as it is hard to beat the pros in the market, it is hard to beat the money that lobbies the governement. It is a real racket. Will leave you to your own synonyms for lobby.

Just my opinion.

Threejack