USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
or commerce among the several states” . Sub - sequent court decisions have clarified that the Sherman Act prohibits agreements between competitors to fix prices, allocate markets, or rig bids. For example, in the case of United States v Socony-Vacuum Oil Co., the Supreme Court held that agreements between competitors to fix prices or allocate markets are per se illegal, meaning that they are presumed to have anti- competitive effects and do not require a full analysis of market impact. The courts have classified the following conduct as per se unlawful: price fixing among competi - tors, bid rigging or collusive bidding, output restrictions or production limitations, market allocation or customer allocation, certain group boycotts or concerted refusals to deal, and cer - tain agreements to limit competition as to prod - uct characteristics or quality and advertising or promotional activities. There are virtually no industry or sector exemp - tions from scrutiny for cartel conduct under the antitrust laws. However, there are certain activities or practices that have been held to be exempt based on constitutional principles or because there is a limited statutory exemp - tion. For example, group efforts to exercise their right to petition (or lobby) government officials under the First Amendment of the United States Constitution are exempt from antitrust regulation under the Noerr-Pennington Doctrine. Similarly, certain activities related to collective bargaining by labour unions are exempt from antitrust scru - tiny under the National Labor Relations Act. 1.5 Limitation Periods The statute of limitations for criminal cartel vio - lations is five years. The statute typically starts
running from the last unlawful act, although this can potentially be extended where the unlaw - ful agreement continues to be in effect. If the last act occurred within five years of the com - mencement of an action, all prior acts in further - ance of the cartel are actionable even when they occurred more than five years prior. Tolling and related doctrines are generally not available in criminal cartel cases. For private actions brought by plaintiffs, the stat - ute of limitations is typically four years. Unlike in criminal cases, tolling is generally available in civil lawsuits alleging price-fixing and related offences. Courts frequently find that cartels, which are by their nature secret, are fraudulently concealed such that the statute of limitations is tolled until the cartel is uncovered, regardless of when the unlawful acts took place. 1.6 Jurisdiction The primary jurisdictional limitation in cartel cases comes from the Foreign Trade Antitrust Improvements Act (FTAIA). The FTAIA provides that US antitrust laws do not apply to conduct involving foreign commerce unless the conduct has a direct, substantial and reasonably foresee - able effect on US commerce. In practice, courts have generally found that cartel conduct occur - ring outside the US falls within US jurisdiction where the cartelist sold price-fixed products into the United States. 1.7 Principles of Comity Principles of comity in the United States are mainly established through case law. In antitrust cases, comity may be invoked when a court is asked to recognise and enforce a judgment or order from a foreign jurisdiction. The application of comity is within the discretion of the courts or relevant government agency. US
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