99 antitrust problems - is recidivism one? A review of antitrust recidivism research and options for public and private enforcement

By Brian A. Ratner & Kartik S. Madiraju[1]

I. INTRODUCTION

Seldom given to exaggeration, it is with careful thought that the United States Supreme Court declared in 2007 that cartels are the “supreme evil of antitrust.”[2] Eradicating this supreme evil and redressing those harmed by it are the primary goals of public and private enforcers of antitrust laws. 

In a more consolidated global economy, every industrial sector features repeat players — a smaller number of increasingly familiar companies, ever-increasing in size and wealth, are becoming dominant in various markets. As a result, almost inexorably, markets in every industrial sector are more prone to anticompetitive conduct — either monopolization or price-fixing cartel behavior. To address the growing antitrust risk in the global economy, enforcers must be equipped with every tool of deterrence to ensure that cartels and monopolies do not form, and every tool of redress to punish cartels and monopolies that do form.

If public and private enforcers do have the proper tools and are able to efficiently and effectively deploy them to deter cartel and other anticompetitive conduct, then there is little need for discussing serial collusion or recidivism. However, data suggests that companies often initiate or take part in multiple cartels across a wide range of industries, and that punitive and rehabilitative measures designed to prevent antitrust violations are falling short of achieving optimal deterrence.

The question is whether there actually is a pervasive antitrust recidivism problem in the United States and in other jurisdictions? And if so, what tools should be improved or made available to enforcers to combat this problem?

II. WHAT IS ANTITRUST RECIDIVISM? IT DEPENDS ON WHOM YOU ASK

Before one can assess the extent of antitrust recidivism, the concept must be defined. Intuitively, the term ‘recidivism’ evokes the criminal law concept of a defendant adjudged to have violated the law, who serves some punishment for that violation, and then subsequently violates the law again. In practice, however, public enforcers and antitrust scholars differ widely on what constitutes antitrust recidivism. 

These differences in thinking are not semantic — antitrust penalties, prison terms, leniency programs, and even exposure to civil suits depend on whether a company is identified as an antitrust recidivist, and if there is a prior violation, when and where the initial anticompetitive conduct occurred. And picking one definition over another may exclude a large number of companies that are in or initiate multiple cartels, which inflict the same harm on consumers and the economy as do those that fall within the selected definition.

In academia, scholars of competition law have taken an increasingly broader view of what repetitive or serial anticompetitive conduct falls within the ambit of recidivist behavior. In his much-discussed 2010 paper, Professor John Connor posited that a cartel recidivist was one who was “convicted for a second time for cartel conduct, no matter where or when the earlier violation took place.”[3] Under this definition, Prof. Connor would also impute a firm’s antitrust violation to a subsequent merged entity or parent company that acquired the offending firm.[4] In 2016, Professor Margaret Levenstein published a study which suggested that recidivists included firms fined for collusion more than once, and firms that were found to be a member of a cartel after having been investigated for involvement in a previous cartel.[5] The trend towards an expansive view of recidivism has led, perhaps unsurprisingly, to research in 2024 that describes a new term altogether — serial collusion.[6] A serial colluder is a firm that engages in repetitive anticompetitive conduct, but the offenses may not be sequential, nor does serial collusion mean that the initial offense was identified or penalized.[7]

Public enforcers, by contrast, adhere to a much stricter view of antitrust recidivism — one that is grounded in the traditional legal concept of criminal recidivism. The Department of Justice (“DOJ”) Antitrust Division borrows the definition of recidivism provided by the Bureau of Justice Statistics: recidivism has “three common traits…a starting event, such as release from custody…a measure of failure following the starting event…[and] a recidivism window beginning with the date of the starting event.”[8] Under this narrower definition, the first violation must have been subject to some penalty or judgment, the second violation must come after the first, and the first violation must be sufficiently recent to be counted at all.[9] In certain jurisdictions, the first and second violations must be of the same type, or within similar markets.[10] In the United States, a recidivist must have committed the prior and current antitrust violation in the United States itself.[11] The third trait — recency — is called a “look back period” — how far into the past an enforcer will look to find prior violations.[12] In the United States, this period is not prescribed but in practice is 10 years — if the antitrust offender’s prior violations are 11 years old, that firm would not be considered a recidivist.[13] The European Commission’s (“EC”) 2006 Fining Guidelines have a similar definition, though the Commission uses “repeated infringement” instead of recidivism: a situation where a firm “continues or repeats the same or a similar infringement after the Commission or a national competition authority has made a finding that the [firm] infringed.”[14] Like the DOJ’s definition, the EC’s definition also makes the sequence of violations a precondition to deeming any violator a recidivist, but treatment of recidivism in Europe differs from the United States in some meaningful ways: the European Commission sets the look back period to sixty years;[15] The EC also imputes antitrust liability of a entity to its parent or post-merger conglomerate,[16] which the United States does not. 

Using the broader ‘serial collusion’ definition, various scholars have concluded that there is a significant antitrust recidivism problem in the United States and in Europe.[17] By contrast, as Professor Levenstein noted in her 2016 article, if one simply adopts the narrower definition, the problem can appear to vanish[18] — so stark are the differences in results when selecting one definition over the other that in 2011, after Prof. Connor declared there to be an antitrust recidivism problem in the United States, the DOJ Antitrust Division took the unique step of responding in writing;[19] the Division’s primary criticism was that Prof. Connor’s definition was too broad, and that under the Division’s definition, between 1999 and 2009 there was “not even a single instance of cartel recidivism within the United States.”[20]

The public enforcement community’s definition of recidivism is based on the argument that without a finding of infringement or a penalty of some kind, an antitrust violator has no opportunity to decide between abiding by competition laws and violating them again.[21] On the other hand, the broadening definition among scholars seeks to include serial colluders who, by colluding in different markets in different jurisdictions, or simply by outlasting a look back period, are recidivists that have not yet been detected.

III. ANTITRUST RECIDIVISM – PUBLIC ENFORCEMENT OVERVIEW

The debate over how to define antitrust recidivism is of significant consequence because public antitrust enforcers impose higher fines and take other punitive measures against recidivists as compared to first-time offenders. Global competition authorities have developed robust enforcement regimes, and each have specific programs or penalties aimed at repeat offenders.

In the United States, the Sentencing Commission has developed guidelines that assign “culpability scores” to determine fines and carceral sentences for antitrust violators — the score increases based on the violator’s prior history of criminal antitrust conduct.[22] In 2004, the United States passed the Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”) that increased antitrust penalties and prison sentences in a direct effort to promote deterrence and combat recidivist behavior — the law, originally set to expire unless reauthorized, was amended in 2020 to be made permanent.[23] Under ACPERA, fines can be as high as $100 million for each anticompetitive violation with prison sentences up to 10 years.[24] The Antitrust Division also operates a Leniency Program, effective as of 1993, which permits violators to avoid criminal charges if they are the first to report the existence of a cartel and offer substantial cooperation to antitrust authorities.[25] The goal of leniency programs is to deter cartel formation, and also to prevent recidivism by incentivizing cartel members to come forward. Under ACPERA, leniency was enhanced for those applicants who were “first to report” by shielding them in civil suits from treble damages under the Sherman Act and by further limiting their exposure to damages attributable to the applicant’s commerce in the relevant market.[26]

In the European Union, the EC imposes fines on firms guilty of violating competition laws, but does not impose jail sentences.[27] In its 2006 update of the Fining Guidelines, the EC decided to consider both prior EC decisions and the decisions of its Member States in determining whether a violator was a recidivist; recidivists are liable for fine increases that range from 100% (the fine is doubled) to 400% (the fine is four times higher).[28] The European Court of Justice has found recidivism to be a “particularly important factor” in assessing the gravity of an infringement.[29] The EC also has a Leniency Programme, implemented in 1996 and modeled after the United States version — an applicant who is first to report the existence of a cartel can obtain immunity from fines, and subsequent cooperators may still obtain fine reductions based upon the value of the information they provide.[30] The EU Leniency Programme does not contain specific guidelines for how recidivists that seek leniency should be treated.

Currently, private enforcers bringing civil suits against antitrust violators often point to ongoing or prior government antitrust scrutiny as evidence of the relevant market’s susceptibility to collusion.[31] However, courts in the United States have been reluctant to explicitly find recidivism as an independent ‘plus factor’ under the rule of reason.[32] In the European Union, courts endorse and approve of regulators increasing penalties on recidivists, but EU courts rarely intervene to alter or augment a fine set by the European Commission.[33] As a result, private enforcers do not play as significant a role in addressing antitrust recidivism specifically as they do in holding antitrust violators to account more generally.

IV. IS THERE AN ANTITRUST RECIDIVISM PROBLEM?

Because of the disagreement among commenters and public antitrust enforcers over how to define antitrust recidivism, it is unsurprising that these two groups have reached opposite conclusions about its prevalence and severity.

Scholars using the broader definition have concluded that antitrust recidivism is increasing rapidly in the United States, that instances of antitrust recidivism may be “severe[ly] undercount[ed]” in the European Union,[34] and that overall there may be “an awesome level of recidivism on the part of major companies who appear as usual suspects in the world of business cartels.”[35] When coupled with research showing that cartel detection rates are fairly low — under 20% in the United States and Europe[36] — a growing chorus of commenters argue that antitrust recidivism is indeed a problem. These commenters argue that antitrust enforcement tools are failing to create the optimal conditions for deterrence, and that punitive measures available to enforcers may not be sufficient to curb recidivism.[37] 

In contrast, public enforcers or commenters using the definition relied upon by competition authorities argue that antitrust recidivism is low, or even non-existent.[38] Indeed, looking at the same data set of antitrust investigation outcomes between 1990 and 2009, one commenter identified a very high recidivism rate of 18% while a rebuttal from the DOJ Antitrust Division argued that, using the regulatory definition, there was not a single instance of recidivism.[39]

Looking beyond the debate over definitions, however, there are other factors which suggest that current antitrust enforcement tools are insufficient to address the traditional concept of recidivism, or serial collusion more broadly. 

First, public enforcers may not be consistently applying their own guidelines for punishing recidivists. For example, the revised 2006 European Commission Fining Guidelines recommend steep fine increases for recidivists, going as high as a four-fold increase in fines for recidivists with four prior violations.[40] However, in practice, the EC has imposed increases of just 50 to 90%, which was the empirical range before the Guidelines were revised.[41] Similarly, despite not having a specific requirement to do so, the DOJ Antitrust Division adheres to a 10 year look back period to identify recidivism, even though many firms have been dominant in their sectors for much longer, and despite the possibility that antitrust violations can impact relevant markets for much longer than 10 years and long after a cartel’s dissolution.[42] 

Second, the value of imposed fines is no longer commensurate with the volume of commerce at issue, nor have fines scaled with the dramatic increase in corporate revenues and profitability. For example, while the $100 million per violation fine provided for in ACPERA represented a significant increase twenty years ago, this amount is a small fraction of the supracompetitive gains enjoyed by cartelists today; indeed, historic fines have rarely represented a significant portion of the commerce affected by anticompetitive conduct. For example, the infamous vitamin cartel of the 1990s resulted in nearly $5 billion dollars in fines and civil settlements in the United States,[43] as well as prison terms for various executives.[44] But the cartel’s sales during the conspiracy period exceeded $30 billion, and profited nearly $10 billion — in other words, even accounting for the fines and settlements the cartel was forced to pay in the aftermath of its discovery, the antitrust conspirators earned twice as much during the conspiracy.[45] In 2008, the DOJ Antitrust Division imposed a fine of $400 million — then one of the largest antitrust fines for a price-fixing conspiracy — on LG for its role in the LCD price-fixing conspiracy,[46] But the conspiracy itself had generated more than $70 billion in revenue during its lifetime,[47] and one study found that the cartel profited at least $3 billion using a very modest 2% overcharge estimate.[48] In 2013, the DOJ Antitrust Division reached a $450 million settlement with the technology giant Apple over its alleged price-fixing conspiracy in the market for e-books[49] — but this amount is less than one half of one percent of Apple’s revenue that year. Fines that were once considered unprecedented may now simply be the cost of doing business for conglomerates that see tens, if not hundreds, of billions in annual revenue. And many large companies who have faced substantial fines for anticompetitive conduct are themselves repeat offenders — these include Akzo Nobel, Bayer AG, Exxon Mobil, and BASF.[50] That fines for anticompetitive conduct are small fractions of cartel revenue suggests that for recidivists or would-be recidivists, the incentive is simply that crime pays.

Third, commenters have argued that while antitrust leniency programs have aided in the detection of cartels by incentivizing self-reporting, the benefits afforded to leniency applicants have created a perverse incentive to play the “leniency game.”[51] Leniency programs offer significant shelter from prosecution if the applicant is the first to report, and offer substantial fine reductions to leniency applicants even if they are not the first to report. Commenters have found that fine reductions for recidivists tend to be higher than for one-time offenders[52] — in other words, a serial colluder may have a perverse incentive to join or initiate a cartel, reap profits, and then report the cartel to avoid hefty fines — playing a leniency game with competition authorities while paying meager fines for a vastly more profitable antitrust violation. That recidivists empirically receive larger fine reductions suggests that would-be recidivists reasonably believe that it is profitable to repeat the process of collusion and reporting.[53] 

Fourth, while there have been some instances of creative punitive measures aimed at disincentivizing serial collusion, public enforcers do not regularly impose punishments beyond monetary fines or prison sentences. Commenters argue that these traditional measures, while helpful, do little to shift corporate culture, do not train executives and employees in the importance of antitrust compliance, and do not create long-term incentives for companies to refrain from repetitive collusion.[54]

Fifth, the current enforcement landscape, especially because of leniency programs, can work to limit the impact of private antitrust suits. Leniency programs in the United States and in Europe offer immunity or impose significant limits on a successful leniency applicant’s civil exposure (e.g., eliminating treble damages for first reporters in the United States, or eliminating joint and several liability for a successful leniency applicant). While these incentives may help encourage cartel members or monopolists to report anticompetitive conduct, these programs can create perverse incentives for recidivists. Private antitrust suits recover substantial sums[55] and meaningful injunctive relief against cartels and monopolists, but a serial colluder may find it preferable to continue anticompetitive behavior and play the “leniency game,”[56] particularly when leniency would limit or eliminate exposure to civil damages. 

V. OPTIONS FOR PUBLIC AND PRIVATE ENFORCERS

As we have seen, reasonable minds differ on the severity of antitrust recidivism. Nevertheless, there is growing consensus that the tools for addressing recidivism and serial collusion must be strengthened for public and private enforcers. Commenters have suggested various enforcement options that can be implemented without an overhaul of the existing regulatory frameworks. The options below are worth considering, regardless of which definition one selects, to address serial collusion and traditional recidivism.

First, public enforcers should increase fines for recidivists,[57] and should certainly consider adhering to fine increases provided in guidelines, such as the steep scale in the EC Fining Guidelines. Fine increases may be especially important in jurisdictions such as the European Union where prison sentences are not available for antitrust offences. And while there may be an upper limit to the deterrent effect of fines,[58] some competition authorities are exploring creative options to impose monetary penalties that are commensurate with the volume of commerce at issue. In the context of monopolists — rather than cartelists — who repeatedly engage in anticompetitive monopolization, regulators are already recognizing the need for increased fines. For example, both the EC and the Indian Competition Authority are seeking to fine Google for abuse of market dominance by looking to Google’s global revenues as a reference point.[59] The EC’s fine of Google was based in part on the EC’s determination that Google was a recidivist monopolist that had abused its dominance in various technology markets.[60] Other monetary penalty options beyond a fine include disgorgement — there is bipartisan support for confirming and codifying the Federal Trade Commission’s disgorgement authority;[61] and divestiture,[62] which the DOJ Antitrust Division has often sought in merger investigations, but recently enforced in a price-fixing case against generic drug manufacturers.[63]

Second, public enforcers may need to revisit and possibly restructure their leniency programs to avoid creating perverse incentives for recidivists who serially reap the profits of a cartel and then rush to be the first to report that cartel and immunize themselves from prosecution. Leniency programs could cap or remove fine reductions for recidivists, and recidivists in particular should not receive broad sheltering from civil antitrust exposure. For example, the Greek competition authority until recently excluded recidivists from the main benefits of its leniency programs.[64] 

Third, public enforcers should consider long-term programs aimed at further increasing corporate compliance with antitrust laws. These include the imposition of antitrust compliance monitors as a mandatory condition of seeking leniency,[65] requiring recidivists to institute antitrust training and compliance programs for executives and lower-level employees; some commenters also support importing the corporate reforms that have been successful in financial fraud and shareholder derivative suits, such as barring executives in recidivist firms from working in the relevant market where they offend or requiring recidivist firms to form board committees dedicated to monitoring compliance with antitrust laws.[66]

Fourth, private enforcement must be further developed such that it has a stronger role in addressing existing and would-be recidivists. The increase in collective actions and private damages actions outside the United States is promising, but infrastructure is needed to adjudicate and hold accountable firms that serially offend in various markets and jurisdictions, such as creating a coordination body similar to the United States Judicial Panel on Multidistrict Litigation (“JPML”). This body can aid private litigants in investigating and prosecuting serial colluders even if their offenses are geographically disparate. In 2020, the European Commission laid out requirements for how collective redress actions should be structured and adjudicated by Member States,[67] but the disparate legal regimes among Member States have presented a conceptual obstacle to a pan-European Union coordination body similar to the United States JPML.[68] Furthermore, individual whistleblowers should be afforded greater incentives and protections that enable them to report antitrust violations. In 2024, the EC noted that it received nearly 200 new antitrust investigative leads per year because of its anonymous whistleblower program;[69] in the United States, the new Whistleblower Program created jointly by the DOJ Antitrust Division and the United States Postal Service is a welcome expansion of whistleblower incentives.[70] Still, neither of these programs have specific provisions for whistleblowers who report recidivism or serial collusion — additional rewards for reporting recidivists to competition authorities would be a simple and effective expansion of existing whistleblower programs. Finally, courts should consider permitting private antitrust plaintiffs to use a defendant’s recidivist conduct as a possible ‘plus factor’ under the rule of reason,[71] or as evidence supporting a motive to collude.

This article was originally published by Brian A. Ratner and Kartik Sameer Madiraju in Competition Policy International on January 21, 2026 and is reprinted with permission.