2024 Global Cartel Forecast

January 2024

The cartel fine figures for 2023 reflect modest to flat overall growth in enforcement as compared to the last twoyears. These figures, however, still pale in comparison to the annual fine totals posted by authorities up until
several years ago, when the U.S., EU and other stalwart enforcers regularly boasted annual fine figures totaling
in the billions. Headwinds caused by dockets consisting largely of domestic and arguably novel cartel cases
appear to be a primary driver of the continued lull in the fine figures. But there is reason to believe the winds
may be changing for 2024, with enforcers demonstrating a renewed focus on pursuing international cartels andmore traditional, hard-core cartel conduct.
In 2023, the U.S. Department of Justice’s Antitrust Division saw an appreciable uptick in fines compared to
the last two years, primarily due to a handful of significant plea deals. On the whole, however, this was nota particularly banner year for the Division. In addition to posting relatively modest fine figures, the Division
lost three of the cartel cases it tried to verdict1 and also saw a prior trial conviction overturned on appeal.2
Nonetheless, we expect no less vigorous enforcement from the Division in 2024, as the Division digests thelessons learned from this year’s setbacks and continues to revamp its enforcement agenda. We expect, forexample, the Division to be far more selective in the cases it chooses to pursue in the labor market arena going
forward, as well as to tack its primary focus back to matters evidencing more traditional, hard core cartel
conduct. Evidencing this trend, in the closing weeks of 2023, the Division took the unprecedented step ofvoluntarily dismissing pending indictments relating to three different investigations that it no longer deemedworthy of pursuing to trial.3
Fine figures for 2023 remained low elsewhere in the world as well, with regulators seeming to have been slow toshake off the pandemic-era cobwebs. But the momentum building from late in 2023 may foreshadow a return
to more aggressive global enforcement in 2024. Indeed, across Europe, dawn raids have been on the rise, withauthorities like the U.K. Competition Markets Authority (CMA) and the European Commission (EC) seeking
to aggressively pursue new investigations. Authorities in Asia have been equally active, with the Japan Fair
Trade Commission (JFTC) imposing a record-setting 100 billion yen fine against three utilities companies for1

United States v. O’Brien, et al., No. 8:22-cr-00130, (M.D. Fla.); United States v. Manahe et al., No. 2:22-cr-00013 (D. Maine); United States v. Patel, et al. No. 3:21-cr220 (V AB) (D. Conn.).

2

United States. v. Brewbaker, No. 22-4544 (4th Cir. 2023).

3

United States v. Surgical Care Affiliates, No. 3-21-cr-00011-L (N.D. Tex.); United States v. Aprahamian, No. 2:20-cr-000064 (E.D. Pen.); United States v. Bescond, etal., No. 17-464 (E.D.N.Y).

Simpson Thacher & Bartlett LLP

Select Year-to-Year Comparison41 25
U.S.

263.3 m
1.4 m
150.2 m94.3 mEU

74.0 mU.K.
Mexico94.3 mJapanSouth Korea

74.0 m77.6 m136.6 m119.2 m10.0 m
4.9 m

0.0 m
0.0 m
0.0 m

257.6 kMexico119.2 m66.7 m201.310.0m m

Canada4.9 m

201.3 m
0.0 m
0.0 m
0.0 m

681.9 m17.3 m
0.0 m

Japan

79.4 m73.8 mChina

73.8 m110.9 m110.9 m
0.0 m

India
117.4 m681.9 m17.3 m0.0 m79.4 m0.0 m275.7 m275.7 m117.4 m138.1 mSouth Korea
138.1 m609.6 m498.0 m609.6 mAustralia

Australia

2.0 b

U.K.

257.6 k

China
India

183.7 m77.6 m136.6 mBrazilCanada150.2 mEU

66.7 mBrazil263.3 mmm
U.S.183.7 1.4

48.4 m498.0 m48.4 m646.4 k17.3 m646.4 k17.3 m

2023

2023

2022

20222021

2021
USD in thousands, millions and billions

4Statistics from selected jurisdictions are approximate and reflect fine levels and exchange rates at the time of writing and may not be exhaustive. Statistics reflecting
penalties for the U.S. include those in the U.S. fiscal year, October 1, 2022 to September 30, 2023. All other statistics include enforcements in the 2023 calendar year.
Fine totals include the amounts imposed during the relevant fine period, and exclude fines that were reduced, adjusted or re-imposed from prior years.

5

Fine amounts were based on the local currency and converted to U.S. dollars using the currency exchange rates reported by the United States Treasury’s Reporting
Rates of Exchange, available here (as modified in September 2023).

2

no-poach, price-fixing and bid-rigging agreements. And so too have authorities across Latin America, including
Brazil’s competition authority (CADE), which imposed fines in a variety of sectors—most notably in liquefied
petroleum, but also procurement, tech, cables and brokerage services—and has signaled through new guidance
and its handling of an investigation regarding worker compensation that it plans to cast its cartel enforcement
net even broader through more aggressive investigations of benchmarking and industry information
sharing practices.
Each of these developments signals the likelihood that we may see overall global cartel enforcement intensify
in 2024.

Trends to Watch for in 2024
A Return to International
Cartel Enforcement

Prioritizing Government
Procurement Frauds

In 2023, we saw a glimpse of global cartel enforcers
returning their focus to international cartel cases andwe expect that focus to sharpen in 2024. For the past
several years, the focus of cartel enforcement in the U.S.
and abroad has primarily been domestic, with enforcers
paying little more than lip service to international cartelefforts. This year was different. Global enforcers not only
talked the talk but walked the walk, revealing coordinatedefforts by multiple jurisdictions to launch investigations
into the fragrances6 and admixture7 industries. We expectthat these efforts may only be early signs of what’s to comefrom a return to greater international cooperation andcoordination among global cartel enforcers.

Enforcers around the world are focused on sniffing out
activity that costs taxpayers money by harming public
procurement processes–both within their borders andabroad—and competition authorities are teaming withother government agencies in this effort.
The U.S. Antitrust Division’s Procurement Collusion
Strike Force, for example, recently expanded to include
four additional U.S. law enforcement agencies, and thispast year it contributed about $12 million to the U.S.
DOJ’s FY 2023 cartel fines and recoveries, including a$9 million recovery related to U.S. military installations
in South Korea.8 The JFTC commenced criminal
proceedings arising from an investigation into bidrigging related to advertising around the Tokyo 2020
Summer Olympics.9 A Seoul court issued penalties
against pharmaceutical companies and employees for
rigging public procurement tenders for vaccines.10 Brazil’sComptroller General’s Office announced plans to expand
its cartel enforcement in collaboration with CADE byincreasing its focus on suspected cases of bid-rigging
in public procurement.11 And Chile’s Supreme Court

6CMA Launches Investigation Into Fragrances and Fragrance Ingredients, CMA (Mar. 7, 2023), available here.

7

CMA Launches Investigation Into the Supply of Chemicals for Use in Construction Industry, CMA (Oct. 17, 2023), available here.

8

Justice Department’s Procurement Collusion Strike Force Announces Four New National Law Enforcement Partners as it Enters its Fourth Year, Dep’t of J. (Nov. 15,2022), available here; Subcontractor Sentenced to Pay Nearly $9 Million in a Criminal Fine and Restitution for Rigging Bids and Defrauding the U.S. Military, Dep’tof J. (Sep. 12, 2023), available here.

9

https://www.jftc.go.jp/en/pressreleases/yearly-2023/February/230228.html

10https://www.seoul.co.kr/news/newsView.php?id=20230201500208
3

affirmed fines for an anticompetitive agreement in themarket for forest firefighting services, harming multiple
government entities.12
Going forward, we expect enforcers will remain heavily
focused on procurement risks both in the U.S. and abroadin connection with the continuing COVID-19 recovery,
the Paris 2024 Summer Olympics, infrastructure
improvements, the conflict in Ukraine and preparations
for the 2026 FIFA World Cup.13

Competitive Benchmarking /Information Sharing as a
Catalyst for Enforcement
Enforcers have cautioned that once-accepted competitive
benchmarking and industry information sharing
techniques may now serve as a catalyst for cartel
inquiries. In the U.S., the Antitrust Division signaled
this shift in approach by withdrawing 30-year old policy
statements that provided a safe harbor for industry
information sharing, replacing them with only a warningthat times have changed and that any form of information
sharing will be closely scrutinized for its potential tofacilitate collusion.14 The U.K.’s CMA fired a similarshot over the bow in its latest guidance, highlighting as
an example of business cartel conduct the sharing ofsensitive information about terms and conditions offeredto employees.15 In Brazil, CADE also issued new cartel fineguidelines identifying the exchange of information as a
type of cartel conduct,16 and in 2023, CADE was pursuing
at least three probes centered on information sharing—
including one focused on employee compensation

information and another where public filings suggest
CADE may even view certain information sharing as
inherently illegal. Whether authorities will find evidence
that benchmarking or information sharing practices
actually led to collusion in any particular industry
remains unclear, but what is clear is that enforcers appear
primed to want to dig in and find out.17

Aggressive Use of the Tools in theInvestigative Tool Kit
While the pandemic years hampered in-person efforts,
agencies have evidenced a renewed vigor post-pandemic
in using aggressive enforcement techniques. The U.S.
Antitrust Division recently announced an investigation
into bid-rigging of forest-firefighting services that wasbrought as a result of the use of wiretaps,18 a tool rarely
used in cartel cases. In similar fashion, in Europe, thepast year saw a remarkable increase in the number ofdawn raids launched by the EC. In total, the EC undertook
seven raids in 2023–a 75% increase from the four raids
in 2022 (and vastly higher than the single raid conducted
in 2021). This trend was also reflected by national-level
enforcement activity amongst some EU member states,with countries including Italy (seven raids), Poland (fourraids) and Spain (six raids) seeing significant spikesin 2023. Similarly, in Japan, the JFTC conducted atleast seven raids. As agencies re-double their efforts toreinvigorate enforcement post-pandemic, we expect to see
increasing reliance on more aggressive investigative tools
in cartel matters.

11

https://www.cnnbrasil.com.br/politica/cgu-vai-ampliar-atuacao-contra-carteis-diz-ministro/

12

https://www.fne.gob.cl/corte-suprema-confirma-condena-por-colusion-a-empresas-que-combaten-incendios-forestales-mediante-aviones-cisterna/

13

Director of the Justice Department’s Procurement Collusion Strike Force Daniel Glad Delivers Remarks to the Seventh Annual White-Collar Criminal Forum at theUniversity of Richmond Law School, Dep’t of J. (Sep. 14, 2023), available here; Justice Department’s Procurement Collusion Strike Force Holds Its First Summitto Discuss Strategies to Combat Emerging Threats, Dep’t of J. (Nov. 17, 2023), available here; United States, Mexico, and Canada Launch Joint Initiative to Detect
Collusive Schemes Seeking to Exploit the 2026 FIFA World Cup, Dep’t. of J. (Sept. 22, 2023), available here.

14

Justice Department Withdraws Outdated Enforcement Policy Statements, Dep’t of J. (Feb. 3, 2023), available here.

15

Guidance: Employers advice on how to avoid anti-competitive behaviour, CMA (Feb. 9, 2023), available here.

16

Dosimetria de multas de cartel, CADE (Sep. 2023), available here.

17

Principal Deputy Assistant Attorney General Doha Mekki of the Antitrust Division Delivers Remarks at GCR Live: Law Leaders Global 2023, Dep’t of J. (Feb. 2,2023), available here.

18

Executives Charged with Bid Rigging, Territorial Allocation and Defrauding the U.S. Forest Service After a Wiretap Investigation, Dep’t of J. (Dec. 15, 2023),available here.
4This edition of the Global Cartel Forecast was authored by:John Terzaken
Partner+1-202-636-5858
john.terzaken@stblaw.com

Jonathan R. Myers
Associate+1-202-636-5565
jonathan.myers@stblaw.com

Josh BucklandCounsel+44-(0)20-7275-6260
josh.buckland@stblaw.com

Lina Kim
Associate+44-(0)20-7275-6215
lina.kim@stblaw.com

Laurel E. Fresquez
Associate+1-202-636-5537
laurel.fresquez@stblaw.com

For further information, please contact the authors, the following Partners, or your regular
Simpson Thacher contact.
Antonio Bavasso+32-2-504-73-10
antonio.bavasso@stblaw.com

Abram J. Ellis+1-202-636-5579
aellis@stblaw.com

Ross Ferguson+32-2-504-73-11
ross.ferguson@stblaw.com

Nicholas S. Goldin+1-212-455-3685
ngoldin@stblaw.com

Peter Guryan+1-212-455-2750
peter.guryan@stblaw.com

Jeffrey H. Knox
+1-202-636-5532
jeffrey.knox@stblaw.com

Noritaka Kumamoto+81-3-5562-6219
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Preston Miller+1-202-636-5822
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Karen Porter+1-202-636-5539
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Sara Y. Razi
+1-202-636-5582
sara.razi@stblaw.com

Étienne Renaudeau+32-2-504-73-20
erenaudeau@stblaw.com

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