By: Robert Connolly (Cartel Capers)
A somewhat obscure case was decided in early March by the Supreme Court, with implications that could, the author imagines, lead to substantial changes in Antitrust enforcement. In considering the circumstances of Bittner v. U.S., 598 U.S. __(2023), Justice Ketanji Brown Jackson joined Justice Neil Gorsuch’s opinion in a 5-4 decision regarding their interpretation of the Banking Secrecy act, and what constitutes a violation of it. Hingeing on the decision is far more than a $2 million fine for Bittner – The case caught this commentator’s eye because of Justice Jackson’s reasoning in favor of the defendant based on the rule of lenity.
The Rule of Lenity
Justice Brown joined Gorsuch’s ruling interpreting the Bank Secrecy Act in favor of the defendant, relying in part on the rule of lenity, which states: “the law is settled that penal statutes are to be construed strictly,”’ and an individual ‘“is not to be subjected to a penalty unless the words of the statute plainly impose it.”’ Bittner, slip opinion at 14, citing, Commissioner v. Acker, 361 U.S. 87, 91 (1959). As the text contained certain ambiguity regarding Bittner’s liability for unreported accounts, a reading of this rule would justify taking the more lenient definition in this controversy.
There have been many challenges to the use of the per se rule in criminal antitrust cases which to date have been beaten back by ample precedent in every circuit upholding the per se rule. But, if eventually the Supreme Court takes a per se rule challenge, could the rule of lenity help cement a majority to overturn the per se rule..?
