Too Much of a Good Thing?: Is Heavy Reliance on Leniency Eroding Cartel Enforcement in the United States?

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Megan Dixon, Ethan Kate, Janet McDavid, Feb 26, 2014

The United States Department of Justice Antitrust Division’s leniency program has seen unparalleled success over the past two decades as one of the most effective law enforcement tools available to identify and prosecute international cartels. Leniency has been the key driver in facilitating the Division’s takedown of cartels of a magnitude and longevity previously not contemplated by most in the competition field.

Twenty years into its regular use of this powerful tool, however, questions have begun to emerge about whether the Division is relying too heavily on the leniency program, to the detriment of some of its overall enforcement goals. Does dependence on leniency as the cornerstone of one’s regime have unforeseen or, at least, undesirable consequences? Should leniency programs play different roles in emerging, established, and sophisticated regimes? Has the success of the leniency program become a bit of crutch? Has the Division’s seeming obsession with ever-increasing statistics on the number of dollars fined or of foreign nationals jailed caused it to lose sight of some other important goals? Is it time for the Division to assess critically whether a larger percentage of its resources should be devoted to attempting to detect and prosecute violations that come to its attention via other avenues such as targeted community outreach and econometric mark…

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