In a contribution to the Law360 Expert Analysis column, John Siffert and Lise Rahdert propose that the low standard for mens rea in price-fixing cases that has been in place for the past 45 years should be reconsidered after two recent U.S. Supreme Court decisions, as well as the U.S. DOJ’s expansion of its enforcement agenda in antitrust cases.

The authors submit that the current mens rea standard is insufficient to ensure that only consciously wrongful conduct is punished. Moreover, it runs the risk of harming market competition by overdeterring pro-competitive conduct.