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February 8, 2023 Article

Enforcers Make It Easy to Report Cartels

This article was originally published in the American Bar Association Antitrust Newsletter on February 8, 2023. 

Did you know that global competition enforcers have easy-to-find websites to encourage reporting of anticompetitive conduct? Not only that, but they are models of brevity in a field plagued by byzantine complexity. Here are some examples:

Take the EC’s webpage. In just two printed pages, the EC offers multiple convenient channels for reporting (for all levels of computer literacy—email, telephone, mail, fax), outlines when to report to EU member state national competition authorities (with links) versus the EC, says that claims for compensation (with helpful legal presumptions) can be made by direct and indirect purchasers within five years, explains joint and several liability, and even touches on merger control and prohibited state aid that distorts competition. All this in plain English (or your choice of a wide selection of European languages). And finally, the carrot—the webpage exclaims “the first company to submit evidence of a cartel may receive total immunity from fines!” and includes a link to the leniency page (emphasis in original).

The UK’s page is the glossiest, with the bold tagline “CHEATING OR COMPETING? It’s your business to know the difference” superimposed over a darkened barroom scene showing two huddled men presumably discussing something forbidden. A reporting link, explanations of the law, and even a quiz follow on the page.

Across the pond, and not to be outdone in the brevity department, DOJ has two concise webpages—one geared for citizens and one for leniency applicants. The citizen webpage is welcoming—“Information from the public is vital to the work of the Antitrust Division. Your e-mails, letters, and phone calls could be our first alert to a possible violation of antitrust laws and may provide the initial evidence needed to begin an investigation.” The leniency webpage is sober, seems geared for lawyers, and is chock full of helpful links to technical documents like model leniency letters so prospective leniency applicants and their lawyers know what to expect when they are reporting.

What does this have to do with private litigation?, you ask. Well, it is at least rumored that most private litigation is inspired by government investigations and most government investigations are triggered by a cartelist coming in from the cold.