Lesson From Smith: Withdrawal From A Criminal Antitrust Conspiracy Must Be Affirmative

In a narcotics case surprisingly relevant to the antitrust world, the United States Supreme Court recently addressed withdrawal from a criminal conspiracy. In Smith v. United States,¹ a unanimous Court held that the burden rests with the defendant to prove withdrawal from a criminal conspiracy. Although, as noted, the decision involved a drug and racketeering conspiracy, it will certainly affect future criminal antitrust cases in which individuals or corporations seek to argue that they withdrew from an alleged anticompetitive agreement - a not uncommon defense. This alert summarizes the Smith decision and offers crucial practical advice in order to prove withdrawal from a criminal conspiracy.