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Academic Articles Awards > Private Enforcement

Not Treble Damages: Cartel Recoveries Are Mostly Less Than Single Damages

John M. Connor and Robert H. Lande, Iowa Law Review, Vol. 100, 2015

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Readers’ vote will close on February 15, 2016. Readers’ vote will allow you to nominate 1 article for each of the Awards, i.e., 10 Academic articles, 10 Business articles, and the best Soft Laws. The readers’ short-list of Academic and Business Articles will be communicated to the Board together with the 20 articles nominated by the Steering Committees. The Board will decide on the award-winning articles. Results will be announced at the Awards ceremony to take place in Washington DC on the eve of the ABA Antitrust Spring Meeting on April 5, 2016.

Antitrust law provides treble damages for victims of antitrust violations, but the vast majority of private cases settle. The average or median size of these settlements relative to the overcharges involved has, until now, been only the subject of anecdotes or speculation. To ascertain what we term “Recovery Ratios,” we assembled a sample consisting of every completed private U.S. cartel case discovered from 1990 to mid-2014 for which we could find the necessary information. For each of these 71 cases we assembled neutral scholarly estimates of affected commerce and overcharges. We compared these to the damages secured in the private cases filed against these cartels.

The victims of only 14 of the 71 cartels (20%) recovered their initial damages (or more) in settlement. Only seven (10%) received more than double damages. The rest — the victims in 57 cases — received less than their initial damages. In four cases the victims received less than 1% of damages and in 12 they received less than 10%. Overall the median average settlement was 37% of single damages. The unweighted mean settlement (a figure that gives equal weights to the cartels that operated in large markets and to those that operated in small markets) was 66%. . The mean and median average Recovery Ratios are higher (81.2% and 52.4%, respectively) for the 36 cases that followed criminal convictions of U.S. antitrust law.

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