An individual cartelist
could also be required to pay a penal fine.
AU Optronics Corp., in which it imposed a court-appointed monitor on a convicted cartelist
for the first time, the Division made a point of wrapping up the year with two policy speeches setting forth its expectations.
may rationally risk criminality because he/she wants to save jobs in his/her group or division.
The trick to discovering the optimal sanction is to find a rule that will force the potential cartelist
to compare any cost saving from his activity with the deadweight loss triangle.
(41) By creating a powerful incentive for each cartelist
to be disloyal, leniency increases the risk of cartel behavior thereby deterring cartel participation.
(30) Moreover, if a cartelist
blows the whistle and applies for leniency, furnishing the authorities with evidence of the collusion, the companies who have not come forward will likely face penalties for their unlawful conduct which, if sufficiently stiff, would at least disgorge any profits obtained through the cartel.
Drawing on lessons learned from programs in the United States and the European Union, it provides confidentiality guarantees, a marker system for informants to establish the order in which they bring in information, the possibility of leniency even after an inquiry is opened, and a sliding scale of reduced penalties, with complete amnesty for the first cartelist
to come in.
It followed from this that a cartelist
could invoke a passing-on defence, to argue that the claimant (the buyer) had passed on any overcharge to its customers.
The view is that leniency applications are the fastest way to mount a cartel case, and a successful leniency program will create additional risk for the practice itself, as a cartelist
may fear application for amnesty from one of its coconspirators, instead rushing to obtain the benefit itself (as only the first through the door can apply).
How can a cartelist
be saintly, when the Constitution and law forbid such modus operandi?
(73) Sometimes the term "carve out" (i.e., carving out a jurisdiction from the cartel's operation) may be used to describe such diversion, but this is not to be confused with the frequent use of "carve out" to describe an individual cartelist
being selected (or even sacrificed) for prosecution.