Resisting the Long Arm of Criminal Antitrust Laws: Norris v The United States

Publication Date01 Mar 2009
DOIhttp://doi.org/10.1111/j.1468-2230.2009.00743.x
AuthorPeter Whelan
CASES
Resisting the Long Arm of Criminal Antitrust Laws:
Norr is vThe United States
Pet er Wh ela n
n
This note analyses the judgment of the House of Lordsi n the case Norri s vUSA, and argues that
its ruling on whether mere price-¢xi ng can amount to a common law conspiracy to defraud will
have a signi¢cant e¡ect on both US and UK criminal anti-cartel enforcement. In particular, the
potential negative impact of the judgment on the future viabil ity of the UK Cartel O¡ence is
highlighted.
On 12 March 2008 the UK House of Lords rendered its judgment in the contro-
versial case of NorrisvUS A.
1
According to the Court, the former CEO of Morgan
Crucible, Mr Ian Norris, shou ld not be extradited to the US to face criminal pr ice-
¢xing charges as his alleged conduct would not have constituted a crime in the
UK at the material time, namely between 1989 and 2000. Although the Law Lords
held that Mr Norris could indeed be extradited to the US to face charges relating
to obstruction of justice, it ruled that price-¢xingper se, that is without any ‘aggra-
vating features’, could not amount in law to a common law conspiracy to defraud
due to the absence of the element of dishonesty, and was not therefore an extradi-
tion o¡ence under UK law. Consequently, for a future criminal competition law
prosecution to be successful in the United Kingdom, the authorities must establish
either that the statutory ‘Cartel O¡ence’ was committed by an individual (which
only applies to conduct which occurs after 20 June 2003); or that under the com-
mon law, a conspiracy to defraudwas committed by an individual or an undertak-
ing engagedin price-¢xingwhere suchprice-¢xinginvolvedsomethingmore than
just secrecy, such as positive deception, misrepresentation or violence.
BACKGROUND
This case arose outof an investigation conducted by theAntitrust Division ofthe
US Department of Justice into alleged cartel activity in the carbon products
industry. As a direct result of this investigation, two US subsidiaries of the Mor-
gan Cruciblegroup of companiespaid substantial ¢nes.Although Morgan’s direc-
tors, o⁄cers and employees secured immunity from prosecution as a result of a
plea bargain arranged withthe US Departmentof Justice, Mr Ian Norris,a British
n
Research Fellow in Competition Law, British Institute of International and Comparative Law
(BIICL),and PhD Candidate, St John’sCollege, Cambridge.
1Norri s vGovernmentof the UnitedStates of Americaand others [2008] UKHL 16(Nor ris II ).
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(2) 272^295

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