Leniency programs and socially beneficial cooperation: Effects of type I errors

This study operationalizes the concept of hostility tradition in antitrust as mentioned by Oliver Williamson and Ronald Coase through erroneous law enforcement effects. The antitrust agency may commit type I, not just type II, errors when evaluating an agreement in terms of cartels. Moreover, firms can compete in a standard way, collude or engage in cooperative agreements that improve efficiency. The antitrust agency may misinterpret such cooperative agreements, committing a type I error (over-enforcement). The model set-up is drawn from Motta and Polo (2003) and is extended as described above using the findings of Ghebrihiwet and Motchenkova (2010). Three effects play a role in this environment. Type I errors may induce firms that would engage in socially efficient cooperation absent errors to opt for collusion (the deserved punishment effect). For other parameter configurations, type I errors may interrupt ongoing cooperation when investigated. In this case, the firms falsely report collusion and apply for leniency, fearing being erroneously fined (the disrupted cooperation effect). Finally, over-enforcement may prevent beneficial cooperation from starting given the threat of being mistakenly fined (the prevented cooperation effect). The results help us understand the negative impact that a hostility tradition in antitrust — which is more likely for inexperienced regimes and regimes with low standards of evidence — and the resulting type I enforcement errors can have on social welfare when applied to the regulation of horizontal agreements. Additional interpretations are discussed in light of leniency programs for corruption and compliance policies for antitrust violations.