February 25, 2011 Articles

Fifth Circuit Refrains from Adjudicating OPEC Price-Fixing Claims

The court affirmed the dismissal of two class actions brought by gasoline retailers against oil-production companies alleging antitrust violations

by Shain A. Khoshbin

Oil prices are at historic highs, and some people predict they will continue to rise. Nations that are members of the Organization of Petroleum Exporting Countries (OPEC), often working with private companies, regularly meet to coordinate and unify their petroleum policies. This type of conduct suggests the potential for restraining free trade, which traditionally has been considered an antitrust violation.

Section 1 of the Sherman Act, 15 U.S.C. ยง 1, states:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $ 100,000,000 if a corporation, or, if any other person, $ 1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

What if technically "private" companies engage in an alleged conspiracy with OPEC member nations to fix the price of oil? The risks are great. The penalties for antitrust violations, by any average person's view of the world, are substantial. Will the OPEC member nations be liable under Section 1 of the Sherman Act in the United States for such conduct? Will the private companies with whom they allegedly conspired be liable? According to a recent decision by the Fifth Circuit, perhaps they will not be held liable.

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