The Decline in U.S. Criminal Antitrust Cases: ACPERA and Leniency in an International Context

By Douglas H. Ginsburg (U.S. Court of Appeals for the District of Columbia Circuit) & Cecilia (Yixi) Cheng (Department of Justice)

Criminal cartel cases in the U.S. are at modern lows, spurring questions as to whether the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (ACPERA) and the Antitrust Division’s criminal enforcement program continue to be effective and, if not, why not? In this Chapter, we offer three non-exclusive hypotheses for the recent 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) ACPERA and the Division’s criminal program have succeeded in deterring cartel formation – at least among U.S. companies.

Our analysis of the Antitrust Case Filings database leads us to be tentatively optimistic about the third possibility: Over the last decade, the number and percentage of foreign as opposed to U.S. corporate defendants has increased dramatically.

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