Under the terms of the plea agreement, Zito must pay a $27,000 fine. While the agreement does not include any specific term of imprisonment, a Department of Justice press release states that Zito “faces a maximum sentence of 10 years’ imprisonment and a maximum fine of $1 million.”2 The parties agree that the U.S. Sentencing Guidelines apply and that the relevant volume of commerce is $2,700,000. The sentencing hearing is set for February 23, 2023.
While the parties did not litigate the Section 2 issue, this guilty plea potentially represents a significant step in realizing Assistant Attorney General Jonathan Kanter’s plans to “vigorously enforce” Section 2 and criminalize monopolization.3 AG Kanter has frequently warned that the DOJ’s Antitrust Division would charge companies criminally for monopolization and attempted monopolization anywhere “illegitimate monopoly behavior” “subjects the American public to harm.” While this criminal prosecution is of an individual and not the company itself—and it looks more like a Section 1 market allocation agreement than an actual attempt to monopolize—the guilty plea is nonetheless a milestone for the Department of Justice, and may signal where the department will focus its efforts going forward.
1 Executive Pleads Guilty to Criminal Attempted Monopolization | OPA | Department of Justice
3 Assistant Attorney General Jonathan Kanter Delivers Keynote at the University of Chicago Stigler Center | OPA | Department of Justice
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