Harry First and Stephen Webber Wallace ‘Pairing Public and Private Antitrust Remedies’ in Albert A. Foer Liber Amicorum, Concurrences (Forthcoming)

Discussions on private competition remedies most often deal with questions of optimal deterrence and effectiveness. Lost in conversation is the basic idea that antitrust violations cause economic harm, and that those victimised by that harm should be entitled to damages from those who have violated the law. This is the underappreciated compensatory function of antitrust. Section 4A of the Clayton Act is a powerful, yet historically underused enforcement tool that empowers the United States to obtain treble damages for anticompetitive conduct when the government is itself the victim. The paper, which can be found here, focuses on whether the US government should not only pursue public enforcement activities, but also engage in private enforcement claims to be compensated for losses as a result of anticompetitive conduct. It examines the limited use of Section 4A, and discusses some possibilities for future cooperation between public and private plaintiffs that could advance the compensatory goal of antitrust. It is structured as follows: Section I looks…

Nicolo Zingales ‘Antitrust intent in an age of algorithmic nudging’ (2019) Journal of Antitrust Enforcement 7 386

This article, available here, surveys EU case law on the role of anticompetitive intent in abuses of dominance, with the goal of understanding how intent can be relevant to the assignment of liability for anticompetitive algorithmic outcomes. The role of subjective intent in EU antitrust analysis remains controversial. Some argue that evidence of intent is an invaluable tool in the antitrust arsenal, allowing agencies and litigants to address anticompetitive conduct where facts are ambiguous or evidence of harm to competition inconclusive. Others warn against relying on intent. First, ‘sales talks’ encouraging employees to beat – and indeed eliminate – competitors is common and merely indicative of a (competitively desirable) aggressive business strategy. Secondly, banning any exhortation to compete aggressively would encourage firms to deploy more subtle forms of inducement when engaged in anticompetitive conduct, while favouring those with the resources to develop such strategies. The law seems to follow a middle path in this debate, suggesting that the notion of subjective…

Carsten Koenig ‘Comparing Parent Company Liability in EU and US Competition Law’ (2018) World Competition 41(1) 69

This paper, available here , contrasts how law parent companies can be fined for antitrust infringements by their subsidiaries under EU competition law, while courts in the US are reluctant to hold parent companies directly or indirectly liable in private damages suits. The author argues that one of the main reasons why EU competition law holds parent companies liable is to solve an under-deterrence problem that occurs when subsidiaries lack sufficient assets to pay fines or damages. US antitrust law uses other enforcement instruments to address under-deterrence by, in particular the individual liability of managers and employees. The article consists of four substantive parts: In section 2, the paper reviews the case law and literature on parent company liability for antitrust infringements by subsidiaries in the European Union and the United States. In the EU, the single economic entity doctrine is deeply ingrained in competition law. The European court interprets the concept of ‘undertaking’ in a functional way: it is the economic entity…

Douglas Ginsburg and Cecilia (Yixi) Cheng  ‘The Decline in U.S. Criminal Antitrust Cases’ George Mason University Law & Economics Research Paper Series 19-31 (Forthcoming in Liber Amicorum Albert A. Foer (2020) Nicolas Charbit et al. (eds)

Criminal cartel prosecutions are at modern lows in the U.S. The authors of this paper, available here, offer three non-exclusive hypotheses for this decline: (1) increasingly large fines in multiple jurisdictions have lessened the incentive to apply for leniency in any one jurisdiction; (2) technology has caused the substitution of lawful tacit for unlawful express collusion; and (3) competition policy has succeeded in deterring cartel formation – at least among U.S. companies. Copyright: FT While the available data is too limited to reach a definite conclusion, it seems to support the third hypothesis: since 2008, investigations have focused predominantly on foreign companies, while both the number and share of investigated U.S. companies have decreased. This is consistent with the hypothesis that U.S. competition policy has been effective in deterring anti-competitive conduct by US companies. Section II describes the recent downward trend in cartel prosecutions. The number of criminal cases filed annually by the DoJ decreased from 90 in 2011 to 18 in…

William E. Kovacic, Robert C. Marshall and Michael J. Meurer on ‘Serial collusion by multi-product firms’ (2018) Journal of Antitrust Enforcement 6 96

This paper, available here, is long and so, I am afraid, is the review. In short, the authors of this paper take issue with the assumption that each cartel in which a given firm participates is a single instance of conduct that is independent of other cartel conduct by the firm. Evidence of serial collusion by major multi-product firms is readily observable from the public record in a number of sectors, such as chemicals, electronics, car-parts, financial products or graphite. Further, collusion persists in at least three of these industries, with new investigations having recently been opened into collusion in the chemical, auto parts, and financial products markets. The paper provides empirical evidence that many multi-product firms have each participated in several cartels over the past 50 years. It argues that traditional assumptions regarding how cartelists operate, and consequent enforcement strategies, are deficient in many aspects. Reflecting this, the authors make policy recommendations to reign in serial collusion. The article is structured as…

Vivek Ghosal and Daniel Sokol on ‘The Rise and (Potential) Fall of U.S. Cartel Enforcement’

This working paper, which is available here,  is still rough around the edges, but it contains a number of interesting insights, which I thought might be of interest. This essay traces how the institutional setting of U.S. cartel enforcement evolved over the years, and assesses these developments from an optimal deterrence framework. In doing so, the authors also review the outcomes of the various US policy regimes in terms of number of cartels prosecuted, the level of financial penalties imposed per individual and firm, and of jail time for cartel crimes. The authors also offer an analysis of how cartel enforcement has varied with recent US Presidential administrations. Section 3 describes how cartel enforcement has evolved in the US since 1890. Cartel enforcement in US began with the passage of the Sherman Act, which imposed a maximum fine for collusion of USD 5,000, raised to USD 50,000 in 1955. Jail time was not actively pursued until the late 1950s, when…

Daniel Sokol ‘Reinvigorating Criminal Antitrust?’ (2019) William & Mary Law Review 60 1545

A number of non-cartel antitrust infringements remain crimes under US law, even if they are not prosecuted in practice. This article, available here, deals with the implications of recent claims for increased antitrust enforcement for the application of such provisions.  A natural extension of enforcement would be to advocate the use of criminal sanctions for various antitrust violations outside of collusion which are “on the books” but have not been used in over a generation. The article argues that a return to the criminalisation of non-collusion related antitrust abuses is problematic not only as a matter of optimal deterrence, but also unconstitutional as a matter of law. Section one describes how antitrust criminalisation is a form of achieving deterrence. Antitrust enforcement builds on models of optimal deterrence. Under an optimal deterrence antitrust framework, a firm or individual will be deterred where the expected costs of illegal activity, taking into account the probability of detection and magnitude of the penalties, exceed…

Beatrice Stange on ‘Romano Pisciotti v Bundesrepublik Deutschland: Increased Risk of Extradition for EU Citizens after Involvement in US Cartels’ (2019) Journal of European Competition Law & Practice 10(2) 89

This paper, available here , discusses the first deportation of an EU citizen to the US for competition law infringements. It focuses on a recent judgment by the Court of Justice of the European Union on this matter. A first section outlines the factual background of the case. In 2010, a US arrest warrant was issued for Italian businessman Romano Pisciotti on account of his involvement in the marine hoses cartel. In 2013, the German federal police arrested Mr. Pisciotti at Frankfurt Airport during a stopover of his flight from Nigeria to Italy. He was provisionally detained and, a few months later, the German authorities accepted the US request for extradition despite Mr. Pisciotti’s legal appeals, inter alia before the German Federal Constitutional Court. Other extradition requests from the US authorities had so far been unsuccessful, mainly because most international extradition agreements (including the Treaty between Germany and the US) require that the sanctioned conduct must be a crime in…

Chiara Muraca ‘Cultural and Political Forces in the Criminalisation of Cartels: A Case Study on the Chilean Experience’ (2018) World Competition 579

In addition to rising monetary fines against both companies and individuals, over the last ten years more than thirty countries have decided to criminalise cartel activities. At the same time, and despite the growing number of countries opting for a criminal enforcement, the implementation of such measures has been quite deficient outside the US. Many of these countries have encountered procedural and political obstacles to enforcing criminal provisions against anticompetitive conduct, including a lack of support from key players in the enforcement process. Among the main explanations for this state of affairs is a belief that criminalisation of cartels outside the US is often the product of a top-down process led by transnational enforcement interests rather than domestic bottom-up forces. The aim of this article, available here, is to test this explanation by conducting an empirical study of criminalisation efforts in Chile. The study involved interviews with the main stakeholders who took part in the criminalisation process in Chile, such…

Peter Whelan ‘Competition Law and Criminal Justice’ in The Intersections of Antitrust, Galloway (ed.), (Oxford University Press, forthcoming)

As opposed to other types of market conduct (such as, e.g., vertical distribution agreements or the unilateral use of market power), cartels are widely perceived to have few if any redeeming features. In recent years, one can clearly detect a firm commitment from antitrust enforcers around the globe to pursue rigorously the investigation, detection and prosecution of cartel activity. Aligned with this development is a growing tendency in a wide variety of jurisdictions to hold individuals accountable for the creation and implementation of cartels, including through use of criminal law. Unfortunately, the employment of criminal cartel sanctions is not without its problems. This paper, available here, seeks to evaluate some inherent problems associated with the use of criminal sanctions for cartel conduct to deter anticompetitive behaviour. It is structured as follows: Section B outlines the deterrence-based justification for criminal cartel sanctions. The primary rationale for the criminal cartel sanctions is economic deterrence. Unlike retribution, deterrence does not concern itself with…