Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

Start by selecting your Topic of interest below. Then choose your Regions and finally refine the exact Subjects you are seeking clarity on to view detailed analysis provided by our carefully selected internationally recognised experts.

4. Results: Answers
Legal and enforcement framework
Which legislative and regulatory provisions apply to cartels in your jurisdiction?
United States

Answer ... The Antitrust Division of the Department of Justice (DOJ) prosecutes cartel conduct under Section 1 of the Sherman Act. The Sherman Act broadly prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce”. In addition to criminal enforcement by DOJ, civil lawsuits may be brought by private plaintiffs under the Clayton Act as well as other government enforcers - most notably state attorneys general, who can bring claims under applicable state statutes.

For more information about this answer please contact: Djordje Petkoski from Shearman & Sterling LLP
Do any special regimes apply to cartels in specific sectors?
United States

Answer ... The Sherman Act’s prohibition against cartel conduct is generally applicable regardless of sector. However, there is a limited number of specific exceptions. For example, the Clayton Act exempts from antitrust liability collective action in the labour market (ie, union collective bargaining conduct) and concerted action among marine insurance companies. Similarly, the Shipping Act of 1984 exempts certain agreements among ocean common carriers that have been filed with the Federal Maritime Commission. There are additional limited exemptions, including exemptions relating to the railway industry and Major League Baseball.

In addition, the Noerr-Pennington doctrine exempts from antitrust liability collective petitioning of the government, even where such actions seek to encourage the government to limit competition or injure competitors.

For more information about this answer please contact: Djordje Petkoski from Shearman & Sterling LLP
Which authorities are responsible for enforcing the cartel legislation?
United States

Answer ... The DOJ has exclusive authority to prosecute cartel conduct under the Sherman Act. Other parties, including private plaintiffs and state attorneys general, may bring civil enforcement actions.

For more information about this answer please contact: Djordje Petkoski from Shearman & Sterling LLP
How active are the enforcement authorities in investigating and taking action against cartels in your jurisdiction? What are the statistics regarding past and ongoing cartel investigations? What key decisions have the enforcement authorities adopted most recently?
United States

Answer ... The DOJ aggressively enforces criminal antitrust law and typically initiates several major investigations each year. From FY 2012 to FY 2015, the DOJ collected criminal fines exceeding $1 billion each year, including $3.6 billion in FY 2015.

Since then, criminal antitrust fines have been in a steep decline, dropping to $399 million in FY 2016 and $67 million in FY 2017 - a 10-year low.

Significant recent investigations include the following.

Automobile parts: The DOJ’s investigation of manufacturers of various automotive components has been the largest cartel investigation in terms of the number of corporate prosecutions. Altogether, the investigation has resulted in dozens of convictions of corporations and individuals, with total fines exceeding $2.9 billion. The investigation started in 2011 and the last reported enforcement occurred in early 2018, when Maruyasu Industries Co. Ltd. pleaded guilty to price fixing of automotive steel tubes and agreed to pay a fine of $12 million.

Foreign exchange currency markets: The DOJ has actively investigated and prosecuted alleged cartel conduct in financial and technology markets. One example is the DOJ’s investigation of an alleged conspiracy to manipulate the prices of US dollars and euros exchanged on foreign exchange spot markets. The investigation resulted in guilty pleas by a number of large financial institutions including Citicorp, Barclays, JPMorgan and The Royal Bank of Scotland, which paid fines of $925 million, $650 million, $550 million and $395 million, respectively.

Bid rigging in real estate foreclosure auctions: The DOJ has prosecuted bid rigging in real estate public foreclosure auctions. To date, there have been indictments and guilty pleas across multiple states, including Northern California, Mississippi, Florida and Georgia.

Packaged seafood: The DOJ uncovered evidence of price fixing while investigating a proposed merger between Bumble Bee and Chicken of the Sea. The merger review led to a criminal cartel investigation that has since resulted in a plea agreement with Bumble Bee, which agreed to pay a $25 million fine, and plea resolutions with five executives. StarKist, a third conspirator implicated in the investigation, agreed to plead guilty, but has not been sentenced as of the time of writing. Bumble Bee’s chief executive has refused to enter a plea deal and is awaiting trial as of the time of writing.

No-poach cases: In October 2016 the DOJ issued guidance that it will prosecute naked agreements between competitors not to hire each other’s employees as criminal violations of the antitrust laws. The DOJ has stated that it is investigating multiple alleged no-poach agreements, although no criminal charges have been filed to date.

For more information about this answer please contact: Djordje Petkoski from Shearman & Sterling LLP