懲罰低 企業聯合壟斷依舊盛行
摘錄自：天下雜誌 經濟學人電子報 2014/4/11
2014-04-01 Web
only 作者：經濟學人
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| 圖片來源：flickr.com/photos/dexxus/ |
反企業聯合壟斷執法是各個董事會的重要議題。近年來，罰款和刑期快速增加，大幅提高了企業勾結的成本。大企業會雇用律師團隊專門處理此問題，但就算是最大的企業，確保自身符合規範仍非易事。
勾結的形式相當多，例聯合調漲、凍結或調降價格，或是不在特定市場競爭等。左派和右派都同意（除了少數極端自由主義者），聯合壟斷並非好事；那會讓消費者付出更高的價格、減少革新誘因並提高進入障礙。
不過，價格操控一直到最近25年才獲得當局重視。1890年開始，美國已將企業勾結視作非法，但一直到90年代，執法單位才開始嚴格執法。自那時開始，監督和懲罰變得越來越嚴厲，例如美國的企業最高罰款就增加為10倍。
根除聯合壟斷需要內部人士協助。在美國的寬容條款下，率先洩露內情的企業可以不必罰款，其員工也不必服刑；第二、第三間企業獲得的寬容較少，揭露另一項壟斷共謀行為的企業，也能獲得部分豁免權。
即使懲罰嚴厲，聯合壟斷仍舊層出不窮。專家認為懲罰的嚇阻力還是不夠；美國對聯合壟斷的懲罰，約為「最佳」嚇阻方式的9～21％。但辯方的律師還是認為，官方將反壟斷法適用至國外，對於跨國企業而言會有重複計算的問題，為企業帶來不必要的苦痛。
此外，競爭和聯合壟斷有時會十分相似；在完全競爭市場中，要是成本上升，各企業的價格也會上升。反壟斷機構試圖同時觀察訂價和獲利，以便迴避這個問題；相關單位亦努力訂出明確的對錯界限，但各國的看法並不統一。
界限模糊，讓受到指控的企業難以決定和解與否。對於尚未受到指控的聯合壟斷企業，決定是否自首亦十分困難；對於確定自己是第一個自首的企業來說，那通常是最佳選項，但如果企業懷疑已經有其他企業認罪，保持沉默並在遭受指控時拒絕和解，或許才是合理的選擇。（黃維德譯）
©The Economist
Newspaper Limited 2014
The Economist
Cartels
Just one more
fix
By The Economist
From The Economist
Published: April 01, 2014
Mar 29th 2014 |
NEW YORK | From the print edition
Trustbusters have
got better at detecting cartels and bolder in punishing them. But incentives to
fix prices remain strong.
THE International
Cartel Workshop might sound like a coaching session for would-be price-fixers.
But the biennial event, run by the International Bar Association, is in fact an
opportunity for lawyers to learn how their clients can avoid falling foul of
the law, how to respond if they do and what is on the minds of the competition
officials who attend. The latest get-together, held in Rome in February,
featured a three-day-long "hypothetical" in which delegates acted out
a loosely scripted scenario featuring a fictional American camera-maker that
discovers its sales team has been colluding with European and Japanese rivals,
and tries to limit the damage by reporting the sin to the authorities.
Grey suits, wooden
acting and hour-long scenes about document discovery are not everyone's idea of
gripping drama. But cartel enforcement is a hot topic in boardrooms. Fines and
jail terms have shot up in recent years, greatly raising the costs of
collusion. Big firms such as GE and Bosch have assembled teams of in-house
lawyers that focus solely on the issue.
Even for the
biggest companies, ensuring compliance is hard. On March 20th Brazil's cartel
office announced a probe into 18 firms involved in the construction of train
systems, including Siemens of Germany (which alerted authorities to the alleged
conspiracy) and Alstom of France. The 15 rail contracts being investigated had
a combined value of 9.4 billion reais ($4 billion); fines could be for a
similar amount. This week prosecutors charged 30 executives from a dozen of the
companies.
Collusion comes in
many forms: agreements to raise, freeze or even lower prices, to co-operate in
tenders, not to compete in certain markets and so on. Price-fixing can be
"horizontal" (among competitors in a particular product) or
"vertical" (involving, say, a manufacturer and its dealers).
There is agreement
on right and left (a few über-libertarians apart) that cartels are bad. They
impose higher prices on customers, reduce incentives to innovate and raise
barriers to entry. One estimate suggests that overcharging costs consumers in
poor countries around the same as those countries get in foreign aid.
"It's tempting to see it as victimless because each customer is hurt only
a little," says Mark Whitacre. "But it's bank robbery without the
mask and gun." He should know. In 1992 he blew the whistle on a global
conspiracy to fix the price of lysine, an animal-feed additive. His story
inspired a 2009 film, "The Informant", starring Matt Damon.
Cartels have
historically tended to form in industries with standardised products that
inspire little customer loyalty, such as industrial components or
road-building. Studies suggest that two-thirds of cartels are in industries in
which the top four firms have 75% or more of the relevant market. Their median
duration is five years, but some last decades.
In recent years,
however, international conspiracies have been bust in fields as diverse as seat
belts, seafood, air freight, computer monitors, lifts and even candle wax. A
growing number of cases are in digital commerce, such as e-books, and in
finance, most recently interest-rate and foreign-exchange benchmarks. The
financial-market version of a smoke-filled room is the online chat room for
traders.
Some of these
cartels have involved a dizzying number of alleged conspirators. According to
court filings, representatives of 20 or more airlines met in airports,
restaurants and other places to discuss the pricing of international air-cargo
services. They were caught in 2006 and forced to pay penalties of more than $3
billion.
Cartels often form
in response to tectonic shifts in the competitive landscape, such as falling
trade barriers or the advent of disruptive technologies. Manufacturers and
retailers react to such pressures by squeezing their suppliers. Squeeze too
hard, though, and those suppliers might feel forced into an "existential
response", says John Connor of Purdue University.
That appears to
have happened in America in car parts, the subject of the largest criminal
investigation yet pursued by the antitrust unit of the Department of Justice
(DoJ), according to Brent Snyder, who heads its criminal-enforcement efforts.
Companies used code names, met in remote locations to fix the prices of starter
motors, seat belts, radiators and more, and followed up with each other "to
make sure the collusive agreements were being adhered to," the DoJ
alleges. It began raiding the companies in 2010.
Twenty-six firms,
many of them Japanese, have already pleaded guilty and agreed to $2 billion in
fines. Two dozen people have been charged. There is more pain to come: cases
brought so far involve 30 parts, but trustbusters believe the prices of 100-150
may have been manipulated. Other cartel authorities are on the case, too. On
March 19th, the European Commission fined five makers of automotive ball
bearings €953m ($1.3 billion). Five days later the commission said it was
investigating several car-parts makers suspected of fixing prices for exhaust
systems.
The scale of the
car-parts case owes something to the structure of the industry. By approving
just a few suppliers of each part, which erected barriers to entry and
encouraged supplier concentration, the direct victims, carmakers, may have
created fertile conditions for cartel activity. Some may have been ripped off
by firms they part-owned. Toyota owns 22% of Denso, which allegedly swapped
information with rivals on "requests for quotation" made by Toyota
for heater panels.
Only in the past
quarter-century has price-fixing been treated as worse than a misdemeanour.
Before then, most companies "saw it as like going 5mph over the speed
limit," says Roxann Henry of Morrison & Foerster, a law firm.
Collusion has been illegal in America since passage of the Sherman Act in 1890.
But the nation's enforcers started to get tough only when the brazenness of the
lysine conspiracy became apparent in the 1990s (members were recorded joking
with each other about the FBI infiltrating their meetings).
Since then,
policing and penalties have grown harsher. The maximum corporate fine in
America has increased tenfold. The European Commission can fine companies up to
10% of group turnover. Fines levied on both sides of the Atlantic have jumped
over the past decade (see chart). Europe's national cartel offices are busier,
too. This year Germany's has fined brewers €106m and sugar distributors €280m.
America leads in
putting price-fixers behind bars. The average jail term has risen, from eight
months in the 1990s to more than two years. The DoJ uses Interpol red notices
(arrest warrants) to put pressure on foreigners indicted in cartel cases to
submit to American jurisdiction. The European Commission can only bring civil
cases, but criminal penalties can be imposed in Ireland and Britain, where they
are being strengthened. Authorities in large emerging markets are also getting
tougher. In India, the worst that colluding firms needed to fear before 2009
was a cease-and-desist order. Now they face heavy fines.
A cartel-busting
cartel
With a growing
share of cartels being global in scope, competition authorities are doing more
of what those they police are not supposed to do: sharing information and
working in tandem. The Japanese Fair Trade Commission played an important role
in the American-led investigation into car parts. In the biggest cases,
offenders can be hit with suits in a dozen countries.
Japan's tougher
stance matters because its companies have long had a lax attitude to collusion.
A lawyer tells of a meeting last year with an executive at a Japanese
manufacturer who claimed that collusion was a thing of the past; the lawyer's
next meeting at the firm was with a middle manager who said he had been taken
to meet several competitors soon after being hired. Asian firms often treat
employees convicted of price-fixing as "a soldier who took a bullet for
the company", says Robert Lande of the University of Baltimore's law
school—though this is not solely an eastern habit. When Mr Lande looked to see
what had become of dozens of price-fixers from various countries who had been
jailed between 1995 and 2010, he found that roughly half had been rehired by
their old employer or by another firm in the same industry.
Cartels are
difficult to root out without help from insiders. To aid detection, the DoJ
developed a leniency programme that provides incentives for companies to
confess and snitch on rivals. This has become so successful that around 50
other countries have copied it. Most big cases today stem from such
confessions.
Under the American
programme, the firm that spills the beans can avoid fines, and its employees
are spared prison. The second and third through the door can secure lesser
benefits, though no criminal immunity, if they provide useful information.
Under a policy known as "amnesty plus", a co-operating firm that
exposes a separate conspiracy can secure partial immunity in that investigation,
too. Samsung, for instance, was the source for several probes into computer
monitors and television tubes. Leniency schemes are designed to be "trees
that grow more and more branches" as edgy companies, fearful that rivals
will squeal first, reveal hidden sins, says Ms Henry.
The flip side of
leniency is that authorities take a particularly hard line against firms that,
when admitting to one conspiracy, do not confess to participation in others. In
2011 Bridgestone paid a fine for colluding over marine-hose prices. Because it
failed to disclose that it was up to the same tricks in car parts, it had to
pay an elevated fine of $425m for the second transgression.
Some countries are
employing eggheads to search for suspicious price patterns by "screening"
markets. These statistical tests have proved most effective in markets with
lots of data, such as financial benchmarks and derivatives, though they have
also been useful in cement and fishing: they provided the first evidence of
manipulation of the London Interbank Offered Rate (LIBOR) in 2008 and, last
year, of foreign-exchange rates.
Not everyone is
convinced by screening. The DoJ ditched it after concluding that it produced
too many false positives. "Grand-jury subpoenas can rock companies,"
says Scott Hammond, a former DoJ cartel-enforcement chief, now with Gibson,
Dunn & Crutcher, another law firm. It is a mistake to unleash them based on
tests that have falsely pointed to wrongdoing.
Rosa Abrantes-Metz
of New York University's Stern School of Business, whose number-crunching
helped expose the LIBOR affair, thinks the Americans are too sceptical. She
argues that market screening, like the medical sort, is useful as an indicator
that prompts further investigation.
Price-fixers also
have to worry about the growth of civil litigation, which almost always follows
action by competition authorities, and in which cartelists can face treble
damages. Private suits in America generated awards and settlements of $33
billion—four times the level of official fines—between 1990 and 2008.
Most suits are
class actions brought by consumers or corporate customers, but large companies
are increasingly opting out of these to bring their own cases, as Ford has done
in car parts. In all, 28 car-parts suits have been filed in American courts.
Adding to the pain, state attorneys-general have become more forceful in
asserting claims on behalf of government purchasers and state residents.
Class actions are
less common but on the rise in Europe, with Britain, Germany and the
Netherlands leading the way. In some countries impediments remain, for example
rules that hamper document discovery. To remove these the European Commission
has proposed a directive that would harmonise laws and procedures.
The wages of sin
Despite
more-severe punishments, cartels still form all the time. Messrs Connor and
Lande think they know why. In a joint paper, "Cartels as Rational Business
Strategy: Crime Pays", they argue that deterrence is still too weak. They
studied 75 cartels and concluded that these could typically raise prices by
20%. That is double the estimate used by America's Sentencing Commission when
setting guidelines for fines and jail terms. Factor in the small chance of
being detected, which the authors put at one in five, and American cartel
sanctions are only 9-21% as large as they need to be to offer
"optimal" deterrence. A lawyer at the Rome conference recounted a
recent meeting with an executive from a large cement group: "He said it's
hard to stop fixing prices when it's still so worthwhile."
The authors
suggest increasing not only sanctions but also the chances of detection by
increasing enforcement budgets, which are tiny compared with the fines levied:
in 2012 the DoJ's antitrust arm took in 16 times more than it cost to run.
Presumably, the DoJ's Mr Snyder would not turn down an increased appropriation,
but he is less keen on quintupling penalties, which he fears would bankrupt
companies and thus crimp competition. "We want [cartelists] to feel
adequate pain but we also want them to remain viable. We're not in the business
of reducing competition."
Despite evidence
that penalties are still too small, defence lawyers complain that the
authorities cause alleged cartelists unnecessary pain by applying antitrust laws
extraterritorially. Each jurisdiction is meant to base its penalties on the
amount of business affected in its territory. But when commerce crosses borders
there is sometimes double-counting (known in the trade as "the
bump"). Jurisdictions often co-ordinate their actions but they do not have
to take account of each other's fines, and do not always agree.
Some firms have
fought back. After AU Optronics of Taiwan was indicted and fined $500m by
America for collusion in LCD panels, the company and two executives challenged
their convictions, arguing that much of the alleged activity took place
elsewhere. Last December a court ordered the executives to be released, pending
appeal, suggesting that the panel of judges had doubts about the government's
case. However, the state is usually hard to beat once a case goes to trial: in
2003-12 it won 657 of the civil and criminal antitrust cases it brought before
American courts; just 28 were lost or dismissed.
The outcome of
private actions is more even. Many cases are dismissed for lack of evidence.
Take the suit brought by grocers against America's three big chocolate-makers,
Hershey, Mars and Nestlé, alleging co-ordinated price increases in 2002-07. A
judge recently sided with the defendants, stating that "their pricing
decisions, while largely identical and effectively simultaneous, were
nonetheless timed and orchestrated in such a way to achieve whatever momentary
pricing advantage they could over their competitors."
Trials expose grey
areas in cartel law.Emails that reveal overt price-fixing make for a
cut-and-dried case. But is it a conspiracy if a firm announces a price increase
and soon afterwards rivals raise their prices to the same level? Has technology
that allows rapid-fire price changes, such as the algorithms used in online
travel, blurred the meaning of "agreement" and made it difficult to distinguish
announcements from discussions among rivals?
One problem is
that competitive and collusive markets can look very similar. If firms are
pricing at marginal cost, and costs (of commodity inputs, for instance) are
bouncing around, then prices shift together in a perfectly competitive
industry, just as they might in a cartel. Competition authorities try to get
around this problem by looking not only at pricing but at profitability too;
profits in collusive environments are higher than those in competitive ones.
Trustbusters have
worked hard to spell out where they consider the line between right and wrong
to be, says Brady Dugan of Squire Sanders, another law firm. But their thinking
is not uniform. The European Commission, for instance, often treats an exchange
of information as collusion, even if there is no agreement to fix prices. The
DoJ needs to see an agreement, though this does not have to be in writing.
These ambiguities
mean it can be difficult for firms accused of collusion to decide whether to settle
or fight. For cartelists that have not yet been accused, the decision over
whether to confess or sit tight can be a tough one, too. Confession is usually
the best option if the company is sure it is the first in the cartel to step
forward and it senses a growing risk of detection. But for a firm that suspects
others have already confessed, thus securing all the available immunity slots
or penalty discounts, it might make sense to keep quiet, then litigate rather
than capitulate when accused—particularly in jurisdictions where trustbusters
wield civil penalties only.
The European
Commission, for instance, has sometimes struggled to make its case, especially
when much of the conduct took place on other continents. Of the 25 airlines it
initially went after for fixing air-freight prices, 13 that offered little or
no co-operation avoided fines. "Competition authorities want all our
clients to believe that coming clean is always the best option," says an
antitrust lawyer who represents large European companies. "But from the
board's perspective that's sometimes simply irrational."
©The Economist
Newspaper Limited 2014
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