Cartel enforcement is evolving across the Americas. Here are three aspects to consider

Competition enforcers throughout the Americas focus their efforts to investigate and prosecute antitrust cartels: agreements between competitors to fix prices, rig bids, or allocate markets.

These offenses, which the US Supreme Court has labeled the "supreme evil of antitrust," are universally condemned by national laws as having no procompetitive value. As a result, they receive significant attention and resources from national enforcers tasked with protecting competition.

Three aspects of cartel enforcement are increasingly common across the Americas and therefore may merit attention:

• First, because cartel offenses can cross borders in terms of both their participants and anti-competitive effects, transnational enforcement by multiple enforcers is common. Agencies coordinate their investigations and cooperate with each other to increase their collective leverage over cartelists.
  
  
• Second, competition enforcers can discover and expand their investigations to other problematic conduct beyond cartel violations. Particularly when the conduct implicates public procurement processes and bid rigging, history shows that cartel enforcement frequently pairs with conduct that violates anti-corruption laws, such as paying bribes or kickbacks.
  
  
• Finally, in several countries, legislators also have singled out cartels for their pernicious effects, and several jurisdictions across the Americas have enacted laws that treat these offenses more severely and, in doing so, grant national enforcers more tools and greater leverage to combat cartels, some of which these enforcers are only beginning to deploy.

Cross-border cooperation

Competition enforcers throughout the world have long publicized their behind-the-scenes cooperation – both formal and informal – to tackle price-fixing and market allocation cartels that are global in scale.

This can include working across agencies with leniency applicants, whistleblowers, and other informants; coordinating on key investigative activities (eg, dawn raids) and decisions regarding the fines that will be imposed; and sharing technical expertise through training.

The Americas are no exception.

A clear example comes when different competition agencies investigate and prosecute the same cross-border conduct, such as they did in the roll-on, roll-off shipping cartel. This investigation – which already has resulted in penalties and civil recoveries totaling over USD3 billion across the industry – makes plain the potential global scale of cartel enforcement. Just focusing on the Americas, the cartel led to the prosecution of a Chilean company (as well as numerous other companies and individuals) by enforcers in the US, Brazil, Mexico, and Chile. (Peru also prosecuted the cartel, but the company obtained leniency from its enforcer.)

These investigations were in addition to government prosecutions around the world (including by European, Asian, African, and Australian agencies) and numerous private class actions – some of which remain ongoing, more than ten years after the investigation became public.

More recently, in August 2024, when Mexico’s competition enforcer announced that it was investigating possible cartel activity affecting industrial fragrances, it noted that it was working in parallel with the US Department of Justice (DOJ) and the UK’s competition authority.

Authorities also work proactively in anticipation of potential cartel issues. The Americas provide the most recent example of this approach, with the competition enforcers of the US, Canada, and Mexico launching a joint task force to better detect, deter, and prosecute collusive schemes that may impact spending for the 2026 FIFA World Cup, which will be co-hosted by the three countries. The initiative is informed by precedent, as Japan, Brazil, and South Africa all uncovered and prosecuted cartel offenses after they hosted World Cups or Olympics Games.

Finally – and perhaps most importantly in a region that still has several newer and developing antitrust enforcement agencies – competition enforcers routinely share experience and technical know-how with each other to bolster agencies’ capacities to effectively investigate and prosecute cartels.

In the Americas, the Organization for Economic Cooperation and Development (OECD) and Peru’s competition authority have jointly sponsored the Regional Centre for Competition in Latin America and the Caribbean since 2019, creating a stable institution that regularly facilitates this type of inter-enforcer exchange.

This cooperation also happens on a more directed basis, such as in Argentina, which in May 2024 launched its cartel leniency program several years after the program was identified as a priority reform for the country’s competition enforcer.

Over the past 30 years (since the US DOJ implemented its policy), leniency programs have been deployed around the globe to destabilize cartels and incentivize cartelists to admit their own role in the conduct and cooperate with authorities against their co-conspirators.

These programs are widely considered one of – if not the most – effective tools that enforcers can deploy against cartels, and several agencies report their deep experience administering leniency programs with success.

To bolster Argentina’s ability to effectively utilize leniency in its cartel investigations, its competition authority received support and training from numerous other competition agencies with more mature leniency programs, including those in the US and Brazil.

Intersection with anti-corruption enforcement

Because bid rigging – agreements between competing vendors to predetermine which of them will win competitive bidding processes – is a heartland cartel offense, competition enforcers often focus their resources on policing anti-competitive conduct that affects public procurements that award work by competitive bidding processes.

In these situations, in addition to anti-competitive conduct that violates antitrust laws, investigators frequently learn of and pursue conduct that violates anti-corruption laws.

The Americas provide a notable example of this: Brazil’s competition enforcer, the Administrative Council for Economic Defense (CADE), played a central role in one of the largest and most notorious public corruption scandals ever, Operation Car Wash. The conduct uncovered by Operation Car Wash reached the highest levels of both Brazilian business and politics.

A key aspect of the scheme involved cartel agreements between ostensibly competing contractors to rig bids for projects for a state-owned company. The cartel members would pay kickbacks to contracting officials after winning the contracts at inflated prices, and these kickbacks in turn fed slush funds used to influence politicians.

Numerous participants in the scheme sought leniency from and agreed to cooperate with CADE and federal prosecutors for their roles in anti-competitive conduct that affected public bids, contributing to the overall success of the multiple agencies prosecuting the conduct.

Similarly, in the US, antitrust charges frequently have paired with public corruption charges, such as when DOJ’s Antitrust Division charged a company with both Sherman Act and Foreign Corrupt Practices Act (FCPA) violations in its investigation of price fixing in the marine hose industry.

More recently, the division’s increasing focus on public procurements has led to a number of filed charges in which defendants were prosecuted for their roles in bid-rigging and bribery conspiracies.

In 2023, for instance, the division obtained sentences of 45, 49, and 78 months’ imprisonment against three individuals (contractors and contracting officials) – plus fines against each of them that approached USD1 million – who pled guilty for their roles in a conspiracy involving improvement and repair contracts for the California Department of Transportation.

Recently, the division’s head of criminal enforcement signaled that this trend was likely to continue, and in addition to domestic corruption-based charges, he hinted that there may be more cross-border cartel and FCPA investigations conducted jointly between the Antitrust Division and other DOJ components.

A criminal approach to cartel offenses

In the US, DOJ has long approached cartel violations as criminal offenses. This impacts both the investigation of and possible penalties for cartel offenses: (i) DOJ’s cartel investigations are conducted jointly with law enforcement agencies such as the Federal Bureau of Investigation (FBI), utilizing investigative tools that are not available for civil matters, such as search warrants, and (ii) US prosecutors seek both steep fines (which do not preclude civil recovery by plaintiffs) against companies and prison sentences for individuals found guilty of participation in cartels.

There is no global consensus regarding the criminalization of cartel offenses, and several jurisdictions continue to investigate and punish cartel conduct administratively. In the Americas, however, more jurisdictions are beginning to adopt a criminal approach, including Brazil, Chile, and Mexico, the three most active competition enforcers in Latin America.

Mexican law, for instance, was changed in 2014 to allow the country’s competition enforcer to refer cartel matters to the federal public prosecutor for criminal prosecution, and it made its first criminal referrals in 2017 and 2019.

Chile's law has allowed for criminal prosecution since 2016, and the head of its competition authority has stated publicly that the agency hopes to utilize this authority soon, citing the experience of the US in noting that “the threat of criminal prosecution really is a very important deterrence tool” to use against cartels.

Chile provides another interesting and recent parallel to US criminal enforcement. In 2024, the competition agencies in both countries brought formal charges of cartel conduct that were based in part on evidence obtained via wiretaps. In announcing its case, Chile's authority expressly noted changes in Chilean law that allowed the agency to use this highly invasive and proscribed investigative technique to gather evidence of the alleged cartel.

The convergence extends even farther – to cartel enforcement policy. In 2020, the US DOJ brought its first of several prosecutions that charged cartel violations in labor markets for wage-fixing and so-called “no-poach” agreements that impacted workers.

Subsequently, 2023 amendments to the competition law in Canada made these agreements punishable by up to 14 years’ imprisonment and, around the same time, the head of Chile's competition authority announced that these labor market cartels would be an enforcement priority in that country.

Conclusion

Cartel enforcement across the Americas continues to present a shifting landscape, with new agencies and political changes that impact local enforcers. But it is not hard to discern a number of convergences across jurisdictions in the region. Businesses are encouraged to take note and factor these developments into their efforts at compliance and other risk mitigation.