100 Iowa L. Rev. 1997 (2015) 

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Abstract

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 collected, 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. Our main findings are that 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%. However, because plaintiffs tend to be rewarded relatively poorly in the largest cases, the weighted mean (a figure that weights settlements according to cartels’ sales) was only 19%. 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. The conclusion of this Essay briefly discusses some of the implications of these findings.