Nicolas Bourtin and Alexander Willscher, Co-Heads of S&C’s Criminal Defense and Investigations Group, along with associate Sabrina Solow, co-authored the Bloomberg Law article “Challenging the Constitutionality of the Sherman Act’s Sec. 1 Criminal Enforcement,” which discusses the constitutionality of criminal prosecutions of no-poach and wage-fixing violations under Section 1 of the Sherman Act. Some argue that these prosecutions are not permissible because they do not provide fair notice that the conduct for which defendants are charged is criminal—but district courts and the Supreme Court have rejected challenges to the constitutionality of the Sherman Act for more than a century.
The article considers the potential that these precedents will be overturned in favor of strengthened void-for-vagueness and rule-of-lenity jurisprudence, which may lead to courts finding that criminal prosecution under Section 1 of the Sherman Act is inconsistent with due process.
Maxwell F. Gottschall, a law clerk at Sullivan & Cromwell, provided significant contributions to this article.
Read “Challenging the Constitutionality of the Sherman Act’s Sec. 1 Criminal Enforcement.”
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