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Competition Litigation

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Although the imposition of fines is a significant – and, perhaps, the most obvious – risk for parties involved in a competition law violation, it is not the only risk associated therewith. Even if no fine – or a fine of EUR 0 – is imposed on a party, it may still wish to bring actions against the infringement decision to mitigate other potentially adverse consequences. The Dutch Trade and Industry Appeals Tribunal (College van…

Following the European Commission’s decision in February 2018 to fine shipping companies EUR 395 million, consumer rights champion Mark McLaren has launched a class action in the UK Competition Appeal Tribunal (the “Tribunal”).[1] The European Commission found that maritime car carriers fixed prices, rigged bids and allocated the market for roll-on, roll-off (“RoRo”) transport of vehicles. Estimated to be worth £150 million, the follow-on class action is brought on behalf of all persons who purchased…

On March 13, 2020, the President of the Republic of Chile submitted to the Congress a bill to increase criminal sanctions to cartels, and to provide the Fiscalía Nacional Económica (FNE), the Chilean Competition Authority, with new techniques for their investigations. If this bill is approved, will it open a new stage to cartel enforcement in the country? Background On October 18 2019, a social unrest began in Chile. Millions of Chileans took to the…

On 4 March 2020, the UK Competition Appeal Tribunal (the “Tribunal”) handed down a significant judgment in the UK’s follow-on Trucks cartel litigation, in which it determined those parts of the European Commission (“Commission”) settlement decision that are binding in establishing liability.[1] The Tribunal also considered whether it can be an ‘abuse of process'[2] for defendants to contest facts previously admitted in their settlement with the Commission. Which parts of the Commission decision are binding?…

1. Summary of English case law The most recent English case to consider the application of choice-of-forum clauses in commercial contracts to cartel damage claims was Microsoft Mobile OY (Ltd) v Sony Europe Limited [2017] EWHC 374 (Ch). This case centred on a cartel damages claim brought by Microsoft against Sony with regard to contracts for the sale of lithium-ion batteries. The supply contract contained an arbitration clause and, importantly for this decision, the agreement also…

The Netherlands is a popular jurisdiction for competition litigation, and recent developments may also attract collective claimants to bring their claim in the Netherlands on behalf of a group of ‘victims’ of an infringement of competition law. Since 1 January 2020, the ‘Act on a Collective Action for Damages’ is in force. The EU Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (No. 1215/2012) applies in The Netherlands.…

On 29 July 2019, the Court of Justice of the European Union (“CJEU”) confirmed in Tibor-Trans/DAF Trucks (C-451/18) [1] that indirect customers can claim damages for damage suffered from cartel-related excessive pricing. However, claimants can sue infringers only in EU Member States within the geographic market affected by the anti-competitive conduct. For establishing jurisdiction, it is no longer relevant where the claimant suffered the damage. Is this the end of the “home-field advantage” for damaged…

CANADA – In Godfrey v Pioneer, 2019 SCC 42 (“Godfrey”), the Supreme Court of Canada has lowered the bar for certifying price-fixing class actions brought under the federal Competition Act, while also allowing new categories of claimants to participate as class members. The decision arose from a class action filed in British Columbia against a group of 42 foreign companies who manufactured optical disc drives and related products. The plaintiff alleged that the defendants conspired…

It appears that courts have found a way to try to keep class actions alive even where traditional damages claims do not satisfy the stringent standard for class certification. Specifically, recent California federal court decisions in class action litigation reflect a seeming willingness to certify classes for purposes of injunctive relief when damages claims do not qualify for class treatment. While it used to be that a defendant could escape financial exposure by showing that…

Once a darling of the class action plaintiffs’ bar, food labeling class actions are becoming tough nuts to crack for plaintiffs in US District Courts. Recent decisions demonstrate a progressive unwillingness on the part of federal courts to accept arguments that consumers can be misled by food products’ labels where the ingredient list on packaging expressly discloses information to the consumer about what is in the product. The courts are also more and more unwilling…