1. Rethinking Antitrust Sanctions The 8th Annual Baxt Lecture
Douglas H. Ginsburg
The 8th Annual Baxt Lecture
Melbourne Law School
21 June 2017

2. “Gentlemen, the fact that all my horses and all my men couldn’t put Humpty together again simply proves to me that I must have more horses and more men.”

3. Antitrust Division Corporate Fines
Methodology:
Search for article titles including the following terms: (original /2 intent) (original /2 understanding) (original /2 meaning) originali!
Database: All journals in Westlaw’s US law reviews and journals database.
Source: American Cartel Enforcement in Our Global Era, AntitrustInstitute.org (Preview of Am. Antitrust Inst. Cartel Chapter of Presidential Transition Rep., posted February 24, 2017). 3

4. EU Corporate Fines
Methodology:
Search for article titles including the following terms: (original /2 intent) (original /2 understanding) (original /2 meaning) originali!
Database: All journals in Westlaw’s US law reviews and journals database.
Source: American Cartel Enforcement in Our Global Era, AntitrustInstitute.org (Preview of Am. Antitrust Inst. Cartel Chapter of Presidential Transition Rep., posted February 24, 2017). 4 4 4

5. Average Length of Jail Sentences Average Prison Days per Person
Methodology:
Search for article titles including the following terms: (original /2 intent) (original /2 understanding) (original /2 meaning) originali!
Database: All journals in Westlaw’s US law reviews and journals database.
Source: American Cartel Enforcement in Our Global Era, AntitrustInstitute.org (Preview of Am. Antitrust Inst. Cartel Chapter of Presidential Transition Rep., posted February 24, 2017). 5 5 5

6. Highest EU Cartel Fines 2012-16

7. Highest US Cartel Fines 2012-16

8. Conventional Wisdom
Corporation
Monitor,
investigate,
report
Employees

9. More Granular Depiction
Shareholders
Enforcers
Monitor, investigate,
enforce
Directors
Monitor,
investigate,
report
Officers
Monitor,
investigate,
report
Employees

10. Proposed Sanctions Actor Sanction Rationale Directors & Officers
Non-negligent
None
Negligent
Fine
General deterrence
Debarment from boards
General deterrence + incapacitation
Perpetrator
Jail
General deterrence (reputation)
General deterrence (subject to wealth constraint)
Debarment from boards and management
Shareholders (“the corporation”)
Damages: Compensatory
Compensation

11. Debarment in Other Countries
Sweden: 2008 law provides for a “disqualification order” against a cartelist, which would prevent him from managing a business
UK: First criminal case (Marine Hose, 2008) where defendants got prison terms and are “disqualified” from acting as a director or participating in the management of any UK company for 5-7 years

12. SEC Suspension Order
As of 1984 defendants entered consent decrees barring them “from holding the positions, or performing the duties, of officer or director” for five years. SEC v. San Saba Nu Tech, Inc., Litigation Release No (D.D.C.).
Since 1990 the SEC has had statutory authority to seek a court order of debarment upon a finding of “substantial unfitness to serve.” 15 U.S.C. §§ 77t(e), 78u(d)(2)