According to the criminal guidelines, "it is important to classify the level of the offence according to the scale or magnitude of the offence, in order to ensure that the sanction is indeed punitive and that there is an incentive to refrain from committing an offence once it has begun". U.S.S.G. § 2R1.1 Background. "However, infringement cases are not directly based on the harm caused by the defendant or on profits, since damages are difficult and time-consuming to determine. Trade volume is an acceptable and easy-to-measure substitute. The Guidelines estimate that the average profit of horizontal trade-limiting agreements is 10% of the total volume of trade and the adjustments to the level of infringement are based on this assumption. See § 2R1.1 Note 3. But wait, Giraudo says: If the government treats the Big Five as a joint venture, then there has been no violation of the Sherman Act, because a single entity cannot conspire with itself to hurt 15 US. C§ 1. Copperweld Corp.
vs. Independence Tube Corp., 467 U.P. 772, 777 (1984). That`s pretty true.... But there were 18 other conspirators who were not members of the Big Five. In its analysis of the volume of transactions, the government fails to make offers on real estate where big five members have not made a deal with someone outside the group. Gov`t Sentencing Mem. (d. 307) to 8 n.9.
In other words, the government did not treat the members of the Big Five as co-conspirators with one another. The government`s treatment is therefore entirely in line with Copperweld. Giraudo goes on to say that the improvement is not true, because there was no organization that could be talked about: "It was a disorganized group of people who showed up at auction and were going to make ad hoc agreements to offer or not to offer if an opportunity arose." Condemnation mem. 1 p.m. to 2 p.m. Cullinane expands this argument in his letter, stating that "[n]o was entitled to tell another when or how much he should offer; Each participant made these decisions for themselves. Cullinane Sentencing Mem. "In reality, [the participants] were rivals who agreed on the structure of their rivalry, but acted independently within it. Some bidders may have had more influence or resources than others, but "each participant devised their own strategy and bid on the basis of their own interests." Id. at 5-7. Giraudo points out that property-to-property partnership contracts were not uniform and sometimes involved another mix of owners.1 But this does not change anything: nowhere does Article 2R1.1 state that a conspirator can only be held responsible for the trade of a single principal. Such a rule would allow co-conspirators to evade liability by forming an infinite series of joint ventures with each other, which frustrates the purpose of antitrust legislation2.2 Cullinane also argues that improving the volume of trade is only intended to "process agreements between suppliers of services or products in order to obtain a higher price from consumers for those services and products." Cullinane Sentencing Mem. 4 The improvement is not designed for cases like this, where the agreements "have been used to reduce the profits of banks and lenders on their foreclosed mortgages." Other evidence indicates that the value of the non-compete clause overshadowed the amount of payments.
For example, there is evidence that payments were much higher if the bidders involved were not rehearsal players. A co-conspirator who pleaded guilty in a related case, Laith Salma, said that in his first meeting with the Big Five — probably before its members knew if Salma would be a rehearsal player or not — asked for $150,000 in exchange for consent not to offer on a field. 307-19 to 4-5. The longevity of the system and the perseverance with which Giraudo and other members of the Big Five pursued it despite a clear knowledge of the legal risks also refutes the claim that it was not lucrative.