Private enforcement

Anticompetitive practices

Private Enforcement in the US: An overview of leading cases
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Historically, those supporting strong antitrust enforcement have tended to agree with observations by the Supreme Court, made principally in the 1970s, that class actions play a vitally important role in antitrust enforcement. Indeed, when the bipartisan Antitrust Modernization Commission (...)

Antitrust damages decisions in Europe: Foreword of the 2005 edition
Ashurst (Brussels)
In the last few years, competition law has undergone unprecedented reform. Not only has substantive law been fundamentally amended so as to introduce a more economic approach, but also the increased “decentralised enforcement” of the law, as advocated by Council Regulation (EC) n° 1/2003, of 16 (...)

An economic assessment of damages actions for breach of antitrust rules: Foreword of the 2006 edition
Autorité de contrôle prudentiel
The Commission has shown, with its December 2005 Green Paper on damages actions for breach of EC antitrust rules and the joint Working Paper its willingness to develop “private enforcement” of EC community law. One of the main reasons to encourage private parties to bring damages actions related (...)

Private antitrust actions: An overview of national case laws - Foreword of the 2010 edition
University Luiss Guido Carli - GRIF (Rome)
,
University Luiss Guido Carli - GRIF (Rome)
,
University Luiss Guido Carli - GRIF (Rome)
1. Introduction As well known, after an antitrust infringement has taken place a victim can turn to the judge to obtain an injunctive relief, a declaration that a contractual clause is null and void ex antitrust laws, and damages. All these legal actions represent what we call private (...)

Private enforcement: An overview of EU and national case law
White & Case (Brussels)
1. Introduction 2011 marked the ten year anniversary of the seminal Courage v. Crehan ruling of the Court of Justice, so it seems appropriate to take stock. In the last ten years there have been a lot of developments, indeed, a true revolution with regard to private antitrust enforcement in (...)

The Spanish government implements the EU antitrust damages directive
Callol, Coca & Asociados
The government has issued an urgent Royal Decree-Law 9/2017 of 26 May (RDL) implementing Directive 2014/104/UE, of the European Parliament and the Council, of 26 November 2014 (Directive) into Spanish law. A Royal Decree-law is an instrument used by the government to legislate on matters that (...)

A UK High Court throws out private claim for damages based on abuse of dominance in the online mapping sector (Streetmap / Google)
Constantine Cannon (London)
,
Constantine Cannon (London)
Google wins court battle against StreetMap in the UK*Google won a big victory Friday in the High Court of England and Wales, which ruled that Google did not abuse its dominant position to the detriment of the now-defunct UK online mapping provider, Streetmap.The Court’s ruling against (...)

The Italian Supreme Court rules that the reorganization of the Italian distribution network of a car manufacturer does not breach competition law (Volkswagen)
Desogus Law Office (Cagliari)
By the recent Volkswagen Group Italia (VGI) judgement , the Italian Supreme Court or Court of Cassation (the Court) has ruled that the plan for the reorganization of its Italian distribution network implemented by a German car manufacturer did not breach competition. The Court considered the (...)

The UK CAT rules on passing-on defence (Sainsbury ’s Supermarket / Mastercard)
Blackstone Chambers
The passing-on “defence” after Sainsbury’s*The passing-on defence – ie. whether the damages suffered by a purchaser of a product which has been the subject of a cartel are reduced if he passes on the overcharge to his own customers – had, as Tristan Jones blogged a few years ago, been the subject of (...)

The Dutch Supreme Court accepts passing-on defense in private enforcement litigation (TenneT/ Gas-insulated Switchgear)
Van Bael & Bellis (Brussels)
On 8 July 2016, the Dutch Supreme Court (“the Court”) handed down a judgment upholding the availability of the passing-on defense in private enforcement litigation. The ruling resulted from a civil claim for damages brought by the electricity company TenneT against the gas-insulated switchgear (...)

The US Court of Appeals for the First Circuit concludes that a reverse payment need not be in cash (Loestrin)
Constantine Cannon (New York)
First Circuit boosts antitrust challenges to pay-for-delay settlements by finding non-cash deals subject to Actavis scrutiny*Antitrust challenges to so-called “pay-for-delay” settlements—in which brand-name drug makers temporarily keep generics out of the market by making payments to would-be (...)

The US Court of Appeals for the 9th Circuit hears interesting oral argument on Foreign Trade Antitrust Improvements Act related issues (Best Buy / Hannstar Display)
GeyerGorey (Washington)
Ninth Circuit’s Oral Argument on FTAIA Related Appeal* If an FTAIA related case is ever taken by the Supreme Court I believe it will be a private civil price fixing damage case like Best Buy Co., Inc. v. Hannstar Display Corporation. The Antitrust Division’s international cartel prosecutions (...)

The UK Competition Appeal Tribunal hears the first damages claims since the entry into force of the Consumer Rights Act 2015 (NCRQ)
Collyer Bristow
On 22 December 2015, the Competition Appeal Tribunal (the “CAT”) announced the commencement of two damages actions which, according to its website , were only the second and third claims issued in the CAT since 1 October, when the Consumer Rights Act 2015 came into force seismically changing (...)

The US FTC reaches record $1.2 billion proposed “pay for delay” settlement and injunctive relief restricting future similar settlements of patent infringement cases (Cephalon)
Weil, Gotshal & Manges (New York)
,
Weil, Gotshal & Manges (New York)
Federal Trade Commission Reaches Record $1.2 Billion Proposed “Pay for Delay” Settlement with Cephalon and Injunctive Relief Restricting Future Similar Settlements of Patent Infringement Cases* Last week, on the eve of trial, the Federal Trade Commission (“FTC”) reached a proposed settlement in (...)

The US Department of Justice announces first criminal prosecution against a conspiracy specifically targeting e-commerce (Topkins)
Patterson Belknap Webb & Tyler
,
Patterson Belknap Webb & Tyler
First E-commerce Price Fixing Prosecution Yields Swift Guilty Plea* In what it is calling the Antitrust Division’s “first criminal prosecution against a conspiracy specifically targeting e-commerce,” the Department of Justice has announced that an individual has agreed to plead guilty to charges (...)

The US Supreme Court is given the possibility to clarify the application of the Foreign Trade Antitrust Improvement Act (Motorola / AU Optronics)
Wolters Kluwer (Riverwoods)
Supreme Court Has Opportunity to Clarify Application of Foreign Trade Antitrust Improvements Act* Last week, the U.S. Supreme Court was asked, in parallel petitions, to resolve a split between the Seventh Circuit and the Ninth Circuit on the application of the federal antitrust laws to a (...)

The High Court of Justice of England and Wales provides guidance on application of limitation periods in damages actions (Arcadia)
St John’s Chambers
United Kingdom: High Court provides guidance on application of limitation periods in damages actions* The High Court has recently provided guidance on the application of limitation periods in competition damages actions. In Arcadia v Visa, it ruled that a substantial part of the claimant’s (...)

The US Department of Justice indicts seven Japanese executive for conspiring to fix prices (Mitsubishi / Hitachi)
GeyerGorey (Washington)
Indictments of Seven Japanese Executives Announced In Auto Parts Cartel Investigation* The Antitrust Division, through a federal grand jury, indicted seven Japanese executives for conspiring to fix prices in the long running auto parts investigation. There were two separate indictments. One (...)

The US Court of Appeals for the 7th Circuit agrees to rehear the appeal dismissing an antitrust claims under FTAIA in a lawsuit alleging price-fixing of LCD modules (Motorola Mobility / AU Optronics)
GeyerGorey (Washington)
Seventh Circuit Panel to Rehear Motorola Mobility v. AU Optronics: A Preview of Some of the FTAIA Issues in Component International Price Fixing Cases* The Seventh Circuit has decided to rehear the appeal from a judgment dismissing nearly Motorola’s entire $3.5 billion antitrust claim against (...)

A US District Court reaffirms that under the Capper-Volstead Act farmers may cooperate to collectively market their products, though the output limitation obtained by concerted action remains precluded by the Sherman Act (Cal-Maine Foods)
Sheppard Mullin (Los Angeles)
,
Sheppard Mullin (San Francisco)
Of Characterization and Common Sense: Court Holds That Erroneous Interpretation of Allegations of Complaint Doom Counterclaim to Bottom of Chicken Coop* In In Re Processed Egg Products Antitrust Litigation, No. 2:08-Md.-02002-GP (E.D. Pa., June 10, 2014), the plaintiffs alleged that they (...)

The EU Court of Justice holds that Member States cannot block claims for compensation by victims of umbrella pricing caused by the presence of a cartel on the market for elevators (Kone)
EFTA Surveillance Authority
Case C-557/12 Kone AG: Cartels, damages and “umbrella pricing”* The Court of Justice’s judgment in Case C-557/12 Kone AG and Others v ÖBB-Infrastruktur AG is an important landmark in reinforcing the efficacy of EU antitrust law. The Court holds that Member States cannot block claims for (...)

The EU Court of Justice deals with the question to what extent the cartelists are required to compensate the higher price charged not just by the members of the cartel, but also by other competitors (Kone)
University of Groningen
The Kone case and the lifts cartel – an upward effect on prices and effectiveness?* On June 5 the Court has handed down the eagerly awaited judgment in the Kone case. This is one of the several cases that result from the Commission’s decision finding a cartel in the elevators and escalators (...)

The EU Court of Justice allows an interpretation of the matter of civil liability according to which a cartel member may be kept liable for damages caused by umbrella pricing (Kone / ÖBB)
Hausfeld (London)
,
Quinn Emanuel Urquhart & Sullivan (London)
,
Hausfeld (London)
Greater scope for cartel damages recovery following the Court of Justice’s ruling that cartelists are liable for “umbrella” damages resulting from the higher prices paid to non-cartelists* On 5 June 2014, the Court of Justice of the European Union (ECJ) clarified the full extent of cartel damages (...)

A US Court of Appeals rejects antitrust claims finding that the injury preceded any domestic effect in the causal chain (Lotes / Hon Hai Precision Industry)
Wolters Kluwer (Riverwoods)
Second Circuit Clarifies Application of Foreign Trade Antitrust Improvements Act* The U.S. Court of Appeals in New York City on June 4 ruled that the Foreign Trade Antitrust Improvements Act (FTAIA) barred the antitrust claims of a Taiwanese electronics manufacturing company with facilities in (...)

A US District Court files an antitrust action against a boycott impeding private schools to compete on the markets for commercial exhibition of high school football contests and basketball contests in Virginia (Liberty Christian Academy / VHSL)
Womble Carlyle Sandridge & Rice (Washington D.C.)
Do Public School Athletic Leagues Have To Admit Private High Schools?* Liberty Christian Academy (LCA), a private high school in Lynchburg, Virginia, has filed an antitrust action against the Virginia High School League (VHSL), a non-profit organization of public high schools in Virginia. The (...)

The federal jury in Puerto Rico acquits former Vice President on charges of conspiring with rivals to fix the prices (Crowley Liner Services)
Cadwalader Wickersham & Taft (New York)
,
Cadwalader Wickersham & Taft (Washington)
,
Cadwalader Wickersham & Taft (Washington)
A federal jury’s recent acquittal of a shipping company executive charged with price fixing highlights the challenges and uncertainties the Antitrust Division of the Department of Justice (“DOJ”) faces when defendants force DOJ to prove its case at trial. It also highlights the fact that, when (...)

The Canadian Competition Tribunal suspends the registration of the consent agreement pending the determination of application pursuant to Section 106(2) related to a price MFN clause on the market for e-books retail (Kobo)
Affleck Greene McMurtry
The Ebooks Saga: Kobo’s challenge explained* Ebook retailer Kobo is challenging a settlement entered into by the Competition Bureau with ebook publishers. The settlement has been stayed pending this challenge. Kobo’s challenge may have major implications for competition law enforcement in (...)

A US District Court grants class certification and gives its preliminary approval for a partial class action settlement of a lawsuit on the allegation of conspiracy to hold down salaries in Silicon Valley (High-Tech employees)
Bona Law (San Diego)
The Antitrust Laws Encourage Stealing* That’s right, the antitrust laws care so much about competition that they even prohibit agreements among competitors to not steal. In a society that morally condemns stealing, this is counter-intuitive (and a good reason to learn a little bit about (...)

The US District Court for the Eastern District of Virginia denies motion to dismiss hearing in a case concerning an alleged exclusion from competing in health care markets (Dr. Yvoune Kara Petrie / Virginia Board of Medicine)
Bona Law (San Diego)
The Virginia Board of Medicine Violated the Antitrust Laws* Last week (17-23 March 2014) was a big antitrust week for the new law firm of Bona Law PC. First, it was the ABA Antitrust Spring Meeting, where antitrust lawyers from all over the world descend upon Washington, DC to obsess over (...)

The Paris Administrative Court dismisses a damages action against members of the carbon and graphite cartel (SNCF)
CDC Cartel Damage Claims (Brussels)
Factual background In its decision C.38.359 - Electrical and mechanical carbon and graphite products of 3 December 2003 published on 28 April 2004 (the ‘Decision’), the Commission found that several undertakings participated in a single and continuous infringement of Art 81(1) EC (now Art (...)

The Helsinki District Court dismisses a damages action on concerted practices in spare car parts wholesale (Atoy v. Arwidson, HL Group, Koivunen, Kaha and Örum)
University of Helsinki
The Helsinki District Court dismissed a damages action claiming losses allegedly caused by concerted practice between spare car part wholesalers. The court found that the claimant had failed to show a causal link between competition-infringing practice by the five defendants and damage which (...)

The Helsinki District Court dismisses several damages actions against wood industry actors due to prescription (Laatikkala Oy, Metsäliitto Osuuskunta Stora Enso Oyj, and UPM-Kymmene)
University of Helsinki
The Helsinki District Court has decided to dismiss several damages actions against raw wood market buyer side competition restriction participants. Approximately 650 damages actions against major wood industry actors have been pending before the Helsinki District Court, which has opted for (...)

The US Court of Appeals for the 7th Circuit affirms dismissal of antitrust claims under FTAIA in a lawsuit alleging price-fixing of LCD modules (Motorola Mobility / AU Optronics)
Sheppard Mullin (San Francisco)
Seventh Circuit Affirms Dismissal of Motorola’s LCD Antitrust Claims Based on Foreign Purchases* On March 27, in the latest major development in Motorola Mobility’s lawsuit alleging price-fixing of liquid crystal display modules (LCDs), a three-judge panel of the Seventh Circuit, including (...)

The Canadian Supreme Court of British Columbia certifies a competition law class action subject to a requirement for the plaintiff to redraft her pleadings to conform to several key court holdings (Watson / Bank of America)
Steve Szentesi Law Corporation
BC Court Certifies Visa/MasterCard Conspiracy Class Action* In an interesting and important decision issued late last week, the British Columbia Supreme Court has certified a Competition Act class action against Visa Canada Corporation, MasterCard International Inc. and a number of major banks (...)

The German Federal Constitutional Court regards the disclosure of leniency applicants’ documents as not violating fundamental constitutional rights in the cartel damages proceedings (Aufzugskartell)
Hogan Lovells (Munich)
I. The Facts Following the European Commission’s decision to impose fines against a group of lift and escalator manufacturers for violating EU antitrust rules in February 2007 (COMP/38.823), several building contractors initiated civil damages claims before the Regional Court of Berlin at the (...)

The Paris Court of Appeal orders to compensate companies in an amount of over € 1.6 million due to their damages resulting from an anti-competitive agreement on prices and sales volumes of synthetic lysine prohibited by the European Commission (Ajinomoto Eurolysine)
Norton Rose Fulbright (Paris)
,
Norton Rose Fulbright (Paris)
In a judgment dated February 27, 2014, the Court of Appeal of Paris (Court of Appeal) has, on remand from the Court of Cassation (Court), ordered Ajinomoto Eurolysine (AE) to compensate four companies in the Doux group (Doux) in an amount of over € 1.6 million due to their damages resulting (...)

A US Court of Appeals upholds the judgment of the lower court dismissing claims of conspiracy to restrain trade and attempted monopolization on the market for prosthetic microprocessor knees (DAW Industries / Hanger Orthopedic Group)
Sheppard Mullin (Los Angeles)
Ninth Circuit Once Again Affirms That Malicious Actions To Destroy A Competitor Do Not State An Antitrust Claim Unless Accompanied By Injury To Competition* On February 24, 2014, the Ninth Circuit Court of Appeals affirmed the lower court’s grant of summary judgment dismissing DAW Industries’ (...)

The US District Court of Dallas dismisses a class action lawsuit filed by an online travel discount company against 12 dominant hotel chains and 9 online travel agencies alledging unfair exclusion from the market (OTC / Hotel Booking)
Stanford University - Stanford Law School
U.S. District Judge in Texas dismisses class action lawsuit against conspiracy by online travel agencies and hotels to fix the price of hotel rooms* On 18 February 2014, U.S. District Judge Jane Boyle of the Northern District of Texas Dallas Division dismissed a class action lawsuit that (...)

The EU Advocate General Kokott delivers her opinion on civil liability of cartel members for umbrella pricing (Kone, Otis, Schindler and ThyssenKrupp)
University College London
On 30 January 2014 Advocate General Kokott delivered her Opinion on the Case C-557/12 Kone and others. This case concerns a claim for compensation brought by the customer of an undertaking not party to a cartel, against the cartel members on the ground that the non-infringing party had (...)

The AG Kokott of the EU Court of Justice issues opinion on the scope of the civil cartel liability in favour of allowing an action for compensation for loss resulting from umbrella pricing (KONE)
European Procurement Law Group
A first reaction to AG Kokott’s KONE Opinion (C-557/12)* AG Kokott’s Opinion of 30 January 2014 in case C-557/12 KONE is generating significant debate (see the very interesting criticism in EUTopia) as it deals with a very complicated and controversial issue that could either spur or restrict (...)

The US Court of Appeals for the 7th Circuit dismisses price-fixing claims based on overseas purchases of LCD panels made by foreign affiliates (Motorola Mobility / AU Optronics)
Sheppard Mullin (San Francisco)
,
Sheppard Mullin (San Francisco)
LCD Court Dismisses Motorola’s Multi-Billion Dollar Antitrust Claims Based On Overseas Purchases* On January 23, in a landmark decision that is one of the most important yet to be handed down in the sprawling LCD antitrust litigation pending in various federal courts since 2006, Judge Joan (...)

A US District Court largely rejects a motion to dismiss an antitrust price-fixing complaint, though it holds that a recognized exception against indirect purchaser suits has not been adequately pled (Lithium Battery)
Orrick, Herrington & Sutcliffe (San Francisco)
Lithium Ion Batteries Court Addresses Illinois Brick Exception, Finds Standing for Certain Indirect Purchasers of Component Products* In In re: Lithium Ion Batteries Antitrust Litigation, 2014 U.S. Dist. LEXIS 7516 (N.D. Cal. Jan. 21, 2014) (Gonzalez Rogers, J.), the Northern District of (...)

A US District Court approves the proposed class action settlement of the antitrust suit over swipe fees (Visa / MasterCard)
Manatt, Phelps & Phillips LLP (Los Angeles)
Swipe Fee Settlement Yields More Litigation* Although the parties reached a $7.25 billion class action settlement of the antitrust suit brought by merchants against Visa and MasterCard over swipe fees, the case is far from over. The protracted legal battle centers on allegations by (...)

The Canadian Competition Tribunal denies leave to merchant to bring price maintenance application challenging wholesale pricing structure for tobacco products (Safa Enterprises / Imperial Tobacco)
Affleck Greene McMurtry
Tobacco price maintenance case goes up in smoke* A Vancouver convenience store operator’s attempt to force Imperial Tobacco to offer it lower prices was filtered out by the Competition Tribunal. Safa Enterprises Inc. operates “My Convenience Store”. Its competitor, New Hasty Market, pays less (...)

A US District Court denies the motions to dismiss the plaintiff’s amended complaint against the "anti-troll" group organizing a boycott of android related patents (Cascades Computer Innovation / RPX)
Orrick, Herrington & Sutcliffe (San Francisco)
“Anti-Patent Troll” Fails to Secure Dismissal of Amended Antitrust Complaint* Back in January, I covered the case of Cascades Computer Innovation LLC v. RPX Corp., 2013 U.S. Dist. LEXIS 10526 (N.D. Cal. Jan. 24, 2013), where Judge Yvonne Gonzalez Rogers dismissed – with leave to amend – Cascades’ (...)

A Finnish District Court grants damages for harm caused by a cartel infringement on the market for asphalt paving works (Espoo / Asfaltti)
Finnish Competition and Consumer Authority (FCCA)
Asphalt cartel trial concluded at Helsinki District Court* On the proposal of the Finnish Competition Authority, the Supreme Administrative Court ordered on 29 September 2009 Lemminkäinen Oyj, VLT-Trading Oy, Skanska Asfaltti Oy, NCC Roads Oy, SA-Capital Oy, Rudus Asfaltti Oy and Super Asfaltti (...)

The UK CAT rules that antitrust findings as regards the copper plumbing tubes cartel did not support the intent to injure required for a conspiracy claim brought under section 47A of the Competition Act (W.H. Newson / IMI)
LSE
Conspiracy, the CAT, and the Court of Appeal: “Here is a case unprecedented” (The Gondoliers, Act 2)* In W.H. Newson Holding Limited & ors v IMI plc & ors [2013] EWCA Civ 1377, the Court of Appeal has made some important new law regarding the scope of section 47A of the Competition Act (...)

A US District Court certifies a class seeking injunctive relief, though declines to certify a damages class arising from the allegedly preclusive effect of the rules that would impede group licensing arrangements with videogame developers and broadcasters (NCAA Student Athletes)
Orrick, Herrington & Sutcliffe (San Francisco)
Injunctive Relief, but not Damages Class, Certified in NCAA Student-Athlete Litigation* In In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 2013 U.S. Dist. LEXIS 160739 (N.D. Cal. Nov. 8, 2013) (Wilken, J.)., the Court certified a class of current and former (...)

The Canadian Supreme Court rejects the passing-on defence in relation price fixing on the market for compatible PC software (Pro‑Sys Consultants / Microsoft)
Blackstone Chambers
Canadian Supreme Court: No such thing as passing on defence* On Thursday last week the Supreme Court of Canada handed down three much-anticipated judgments concerning indirect purchaser claims. The trio of cases point towards a distinctive, and in many respects more claimant-friendly, approach (...)

The Canadian Supreme Court clears the way for indirect purchaser competition class action related to compensation for harm caused by inflating the price of microchips (Infineon Technologies, Pro-Sys, Sun-Rype)
Steve Szentesi Law Corporation
Canadian Supreme Court Clears the Way for Indirect Purchaser Competition Class Actions: Reason and Clarity Prevail in Previously Muddled Area* Earlier today the Supreme Court of Canada (“SCC”) released three long-awaited companion judgments that finally create clarity and certainty in the area (...)

The Canadian Supreme Court allows indirect purchasers claims for a cartel infringement on the market for processor compatible software (Infineon, Pro-Sys, Sun-Rype)
Davies Ward Phillips & Vineberg (Toronto)
Supreme Court of Canada Allows Indirect Purchaser Claims* Note: On October 31, 2013, Canada’s Supreme Court issued important decisions regarding the scope of private claims for civil damages under the Competition Act. Below is a note prepared by Davies Ward Phillips & Vineberg on these (...)

A French Court of Appeal holds that article L. 442-6, I, 5 of the commercial code also applies to international business relations (Lauterbach, Logic Instrument)
Vogel & Vogel
A German company which had had its products distributed by the same operator in France since 1988 announced its intention to recuperate the French market by installing a subsidiary on the territory thereby terminating relations with the distributor. Aggrieved by the lack of sufficient notice of (...)

The Madrid Court of Appeal establishes that there should be no bar to the effect of the arbitration clause and the arbitrability of a dispute concerning rights and obligations arising out of vertical agreements in the motor vehicle sector (Camilaga / DAF Vehiculos)
CMS Cameron McKenna (Sofia)
Arbitrability of Competition Law Issues Reinforced* A number of decisions of various national courts have dealt with the issue whether a competition law dispute may be referred to arbitration. Although the case law tends to favour a positive answer, it is still an issue that is being (...)

The Portuguese Supreme Court declares a non-compete clause in a franchise agreement invalid due to absence of transference of confidential information justifying protection of know-how (Montijo)
Eduardo Paz Ferreira & Associados
In a dispute concerning an infringement of a franchising agreement in the food services industry, including an alleged violation of a non-compete clause, the Portuguese Supreme Court reversed a ruling of the Lisbon Appeal Court, providing clarifications on its view on the validity of such (...)

The US District Court for the Northern District of California dismisses plaintiff’s antitrust claims and ascertains that allegations of harm to competition caused by multiple defendants can’t be aggregated (Orchard Supply Hardware/Home Depot, METCo & Makita)
Orrick, Herrington & Sutcliffe (San Francisco)
Allegations of Harm to Competition Caused by Multiple Defendants Can’t be Aggregated* Earlier this year, I covered the case of Orchard Supply Hardware LLC v. Home Depot USA, Inc. . On September 19, 2013, the court (the Northern District of California) issued its decision on defendants’ motion (...)

The Shanghai Higher Court and one of China’s antitrust regulators issues decisions that resale price maintenance violated China’s Anti-Monopoly Law (Rainbow / Johnson & Johnson)
Jones Day (Beijing)
,
Gibson Dunn (Hong Kong)
,
Jones Day (Beijing)
Within the same week, the Shanghai Higher Court and one of China’s antitrust antitrust regulators have issued decisions that resale price maintenance ("RPM") violated China’s Anti-Monopoly Law ("AML"). The decision of the Shanghai Higher Court involved an agreement between Johnson & Johnson (...)

The Shanghai Higher Court decides on the first private antitrust action involving vertical agreements (Rainbow / Johnson & Johnson)
AnJie Law (Beijing)
On August 1 2013, Shanghai People’s High Court (the Court) handed down judgment on the first private antitrust action involving vertical agreements under the minimum resale price maintenance (RPM) clause of China’s Anti-monopoly Law (AML). The Court rescinded the judgment of the first instance (...)

The Chinese Shanghai People’s High Court awards damages to be paid by a major US-headquartered healthcare supplier for vertical restrictive practices (Rainbow / Johnson & Johnson)
AnJie Law (Beijing)
Chinese Court’s Roadmap on Vertical Monopoly Analysis: Some Comments on the Final Judgment on Rainbow vs. Johnson & Johnson Case* On August 1 2013, Shanghai People’s High Court (the Court) handed down judgment on the first private antitrust action involving vertical agreements under the (...)

The Chinese Shanghai Higher Court renders final judgment in first antitrust private action (Rainbow / Johnson & Johnson)
King & Wood Mallesons (New York)
Chinese Court Rendered Final Judgment on Rainbow v. Johnson & Johnson – the First Antitrust Private Action of Vertical Monopolistic Agreement* On 1 August 2013, the very same day of the fifth anniversary of China’s Anti-Monopoly Law (“AML”), Shanghai Higher People’s Court (“Shanghai Higher (...)

The District Court of Rotterdam rules on its jurisdiction regarding private damages claim against cartel participants residing outside the Netherlands (Stichting Elevator Cartel Claim)
Allen & Overy (Amsterdam)
,
Allen & Overy (Amsterdam)
The parties Stichting Elevator Cartel Claim (SECC) v. Kone B.V., Kone GMBH, Kone Oyj, Kone Luxembourg Sàrl, Kone Belgium S.A. (jointly Kone c.s.), Thyssenkrupp Liften Ascenseurs N.V.-S.A., Thyssenkrupp Liften B.V., Thyssenkrupp Aufzuge GmbH, Thyssenkrupp Fahrtreppen GmbH, Thyssenkrupp Elevator (...)

The US Southern District of New York holds that antitrust plaintiffs need not show that conspiracy is the sole inference from the evidence (Apple)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this prominent case, the United States and 33 states and U.S. territories brought civil suits against Apple Inc. and five book publishing companies, alleging that they conspired and acted together, in violation of United States antitrust law, to cause the publishing industry to move from a (...)

The Court of Appeal of Paris faces the difficult adequacy between efficiency of private enforcement and the principles of the French Civil Trial (JCB v. Central Parts)
Fieldfisher (Paris)
,
Ecole de formation du Barreau (EFB)
In its decision dated 26 June 2013, the Court of Appeal of Paris considered that only the harm suffered because of anticompetitive practices implemented for a period of 10 years before they stopped could be compensated. By taking this ruling, it strictly applied the French procedural rules for (...)

The US Supreme Court holds that reverse-payment patent settlements should be reviewed under the antitrust rule of reason (Actavis)
O’Melveny & Myers (Washington)
,
O’Melveny & Myers (Los Angeles)
,
O’Melveny & Myers (Los Angeles)
But Decision Raises as Many Questions as it Answers The Supreme Court yesterday held that it may be unlawful under the antitrust laws for a brand-name drug manufacturer to resolve patent litigation against an allegedly infringing generic drug maker by paying the generic to forestall market (...)

The Canadian Court of Appeal dismisses the action for damages in a conspiracy claim against joint purchasers in the oil industry (Alberta/Husky Oil Operations)
Affleck Greene McMurtry
No pot of gold at the end of the Rainbow* A decision by joint operators of an oil field to use a single fluid hauler was not an unlawful conspiracy, the Alberta Court of Appeal held recently, overturning a 2011 decision that awarded about $8 million to the loser of a competitive bidding (...)

The Hungarian Competition Authority does not rule on anti-competitive agreements in the agricultural sector due to a new domestic sectoral exemption (Watermelon cartel)
Oppenheim
,
Oppenheim - Budapest
1. Introduction On 10 April 2013, the Hungarian Competition Authority (GVH) terminated its competition proceedings concerning anti-competitive agreements against several multinational grocery retail chains as ALDI, Auchan, Lidl, Spar, TESCO and a domestic franchise, CBA as well as the Hungarian (...)

The Lisbon Appeal Court upholds dismissal of private enforcement action that opposed a distributor to a manufacturer in the gas bottle market and provides important general clarifications
Eduardo Paz Ferreira & Associados
The Lisbon Appeal Court confirmed the dismissal of a distributor’s claims for compensation in a private enforcement case in the gas bottle distribution market involving a territorial protection clause. The distributor sued the manufacturer after the latter ended a 42 year-long commercial (...)

The Federal Court of Australia hands down its first decision involving a bid rigging case after the entry into force of new cartel laws (Norcast/Braken)
Deakin University
In July 2009 Australia’s new cartel laws entered into force. On 19 March 2013 the Federal Court of Australia (Gordon J) handed down its first decision involving these new laws. Norcast S.ár.L(Norcast), a subsidiary of the private equity fund, Pala Investments Limited (Pala), alleged that Castle (...)

The Federal Court of Australia issues its first decision on cartel liability under the Competition and Consumer Act 2010: a wake up call to those doing private equity deals (Norcast v Bradken)
Brent Fisse Lawyers (Paddington)
1. The decision in Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013) The decision of the Federal Court of Australia (Gordon J) in Norcast S.ár.L v Bradken Limited (No 2)[2013] FCA 235 (Norcast v Bradken) is the first test case on liability under the cartel amendments in 2009 (...)

The US Eastern District of New York Federal Court awards plaintiffs $162 million in first-ever civil price-fixing verdict against Chinese companies (Vitamin C Cartel)
Quinn Emanuel Urquhart & Sullivan (Brussels)
,
Office of Attorney General
,
Shearman & Sterling (New York)
On March 14, 2013, a federal jury in Brooklyn, New York returned a verdict in In re Vitamin C Antitrust Litigation, No. 1:06-md-1738 (E.D.N.Y.), finding that two Chinese companies had unlawfully fixed prices and controlled the supply of vitamin C exports from China to the United States. (...)

The Dutch District Court of Midden-Nederland sees no causal link between existence of elevator cartel and alleged overpriced elevator maintenance contract (VvE woningen "Het Schip" / Otis)
CMS DeBacker (Brussels)
I. Facts On 21 February 2007, the European Commission imposed a fine of € 224,932,950 on elevator manufacturer Otis for its participation in the ’elevator cartel’, together with other manufacturers Kone, Mitsubishi, Schindler and ThyssenKrupp (total fine: € 992,312,200 – in those days the largest (...)

The US FTC files amicus curiae brief supporting generics’ claim in patent dispute (Actelion Pharms/Apotex)
DLA Piper Weiss-Tessbach (Vienna)
U.S. FTC files amicus curiae brief supporting generics’ claim in patent dispute* On 11 March 2013 the U.S. Federal Trade Commission (“FTC”) filed an amicus curiae brief in the case Actelion Pharms Ltd. V. Apotex Inc. which is being heard in the U.S. District Court for New Jersey supporting the (...)

The Italian Supreme Court reaffirms the principle that infringement decisions of the Competition Authority constitute “privileged evidence” in follow on compensation claims (Private motor insurance cartel)
Simmons & Simmons (Milano)
On 04 March 2013, an order of the Corte di Cassazione - the Italian Supreme Court - reaffirmed the principle that infringement decisions of the Italian Competition Authority (ICA) constitute “privileged evidence” in follow on compensation claims. This order is related, yet again, to disputes (...)

An Advocate General of the ECJ postulates that the EU principle of effectiveness precludes a provision of national law which makes the grant of access to documents by a national court subject to the consent of the antitrust infringers (Donau Chemie)
Matrix Chambers
Pfleiderer revisited: the AG Opinion in Donau Chemie* On 7 February, AG Jääskinen issued his Opinion in Case C-536/11 Donau Chemie, a much anticipated case (at least among competition lawyers) concerning the compatibility with EU law of an Austrian law which prohibits third party access to the (...)

The Californian Supreme Court applies the continuous accrual doctrine to actions under the unfair competition law finding that each overcharge shall give rise to a separate claim (Aryeh / Canon Business Solutions)
Sheppard Mullin (San Francisco)
California Supreme Court Resolves Split Over Accrual Rules for Unfair Competition Claims* The California Supreme Court has offered hope to plaintiffs facing statute of limitations problems under California’s Unfair Competition Law, holding that special rules for calculating accrual dates for (...)

The East Netherlands District Court establishes liability for damages in follow-on gas insulated switchgear case (Tennet TSO / ABB)
Smeets Van Empel advocaten (Amsterdam)
Introduction The Dutch District Court Oost-Nederland ruled on the liability for damages in a Dutch follow-on case sought after the European Commission established a cartel infringement in its ‘gas insulated switchgear’ Decision. In its ruling the District Court also considered the applicability (...)

The England and Wales Court of Appeal allows price-fixing damages claims brought by an Irish utility service provider against a British industrial bag manufacturer based on Article 5(3) of the Brussels I Regulation (Bord NA Mona)
Blackstone Chambers
Subsidiaries as “branches” for undertakings: a new route to jurisdiction under Article 5(5) of the Brussels Regulation?* Stand alone, follow on and hybrid damages claims arising out of multijurisdictional cartels are generating some of the most novel and interesting current problems in conflicts (...)

The England and Wales Court of Appeal refuses to revive private damages claims against a subsidiary of the addressee of the graphite cartel EC decision (Mersen)
Blackstone Chambers
Subsidiaries as “branches” for undertakings: a new route to jurisdiction under Article 5(5) of the Brussels Regulation?* Stand alone, follow on and hybrid damages claims arising out of multijurisdictional cartels are generating some of the most novel and interesting current problems in conflicts (...)

The EU Court of Justice confirms the Commission’s authority to represent the EU in bringing an action for damages before a national court based on an infringement of the Article 101 TFEU (Otis, Kone, Schindler and ThyssenKrupp)
Mircea & Partners (Bucharest)
I. Introduction In the field of competition law the Commission plays multiple roles and acts against several forms of anticompetitive activities prohibited by Articles 101 and 102 TFEU, if the interstate trade criterion is satisfied. National competition authorities may apply the above named (...)

The Hungarian Metropolitan Court dismisses a claim for damages on the basis of bid-rigging established by the Hungarian Competition Office (Közlekedésfejlesztési Koordinációs Központ v Strabag Építő and Debreceni Magas, Mély és Útépítő)
lakatos, koves and partners
,
Philip Morris
On 24 October 2012, the Metropolitan Court (the "Court") dismissed the claim for damages lodged by the Traffic Development Coordination Centre (in Hungarian: "Közlekedésfejlesztési Koordinációs Központ", the "Plaintiff") made against Strabag Építő Zrt. ("Strabag") and Debreceni Magas, Mély és Útépítő (...)

The US Court of Appeals for the Second Circuit finds that the filed-rate doctrine applied because the market-based auction process was circumscribed and reviewed by a regulatory body which determined the resulting rate to be reasonable (Simon, KeySpan)
Skadden, Arps, Slate, Meagher & Flom (Washington)
,
Skadden, Arps, Slate, Meagher & Flom
,
Driven
On September 20, 2012, the United States Court of Appeals for the Second Circuit affirmed KeySpan’s victory in Simon v. KeySpan, holding for the first time that the filed rate doctrine can bar private claims related to market-based rates that arise from regulated auctions. While the Court (...)

The England and Wales Court of Appeal dismisses an appeal against an action for damages arising from the violation of provisions in Article 101 TFEU on the market for supply of industrial copper tubes (KME Yorkshire / Toshiba Carrier)
Blackstone Chambers
Special pleading? Toshiba Carrier and the industrial tubes cartel* The Court of Appeal’s judgment last Friday in KME Yorkshire Ltd & ors v Toshiba Carrier UK Ltd & ors [2012] EWCA Civ 1990 will gladden the hearts of Article 101 damages claimants. It confirms that the Court will be (...)

The Court of Appeal dismisses an appeal seeking to strike out a damages claim brought against a company that was not the addressee of a EU Commission decision: an encouragement towards more private litigation in England? (Toshiba Carrier)
University of Leeds
On 13 September 2012, the Court of Appeal (England and Wales) dismissed an appeal which sought to strike out a damages claim (or grant summary judgment) brought against a company that was not the addressee of a European Commission decision finding an infringement of EU competition law. In (...)

The UK Court of Appeal paves the way for an ‘anchored’ follow-on claim against an industrial copper tube cartel liable under Art. 101 TFEU (Toshiba Carrier v KME Yorkshire)
The University of Manchester
On 13th September 2012, the UK Court of Appeal turned down an appeal by KME Yorkshire Ltd (“KME UK”) to summarily dismiss a private damages claim by Toshiba Carrier UK Ltd and other claimants (“Toshiba UK”). The claim was in respect of losses that occurred during the operation of a cartel between (...)

The CJEU Advocate General Kokott asserts that agreements with an anti-competitive object cannot be deemed as de minimis infringements (Expedia)
Matrix Chambers
The concept of ‘appreciable restriction of competition’ in ‘object’ cases under Article 101(1) TFEU – AG Kokott in Expedia* On 6 September 2012 AG Kokott issued her Opinion in Case C-226/11 Expedia Inc. The case results from a preliminary reference made by the French Cour de cassation in (...)

The UK Court of Appeal clarifies the meaning of the term “decision” in Section 47A of the Competition Act 1998 (Deutsche Bahn / Morgan Crucible)
King’s College (London)
The Court of Appeal, in its decision in Deutsche Bahn AG and others v Morgan Crucible plc, has clarified the meaning of the term “decision” in section 47A of the Competition Act 1998 for the purpose of applying the limitation period for bringing follow-on action claims for damages in the (...)

The Irish Parliament amends the competition act strengthening competition law enforcement by providing new and increased sanctions and penalties
Queen’s University Belfast
On 3 July 2012 Ireland’s Competition (Amendment) Act 2012 (“the 2012 Act”) came into force. This Act, as its name indicates, amends the existing Competition Act2002 (“the 2002 Act”) to enhance Ireland’s anti-cartel regime through augmentations to the criminal and private enforcement regimes, and (...)

The US Seventh Circuit Court of Appeal takes broad view of the foreign trade antitrust improvements Act (Minn-Chem / Agrium)
Paul Hastings (Washington)
,
Paul Hastings (Orange County)
,
Paul Hastings (Orange County)
Overview In a much-awaited decision, the Seventh Circuit has taken a broad view of the ability of U.S. courts to hear antitrust cases concerning alleged foreign cartel activity that plaintiffs contend has effects in the U.S. The Court’s ruling reviving a cartel case in the potash industry is (...)

A U.S. Court of Appeals potentially expands the extraterritorial reach of the U.S. antitrust laws (Minn-Chem v. Agrium)
Davis Polk & Wardwell (New York)
,
Davis Polk & Wardwell (New York)
,
Gibson Dunn (New York)
Introduction The U.S. Court of Appeals for the Seventh Circuit (the “Court”) recently potentially expanded the extraterritorial reach of the U.S. antitrust laws. Its unanimous en banc decision in Minn-Chem, Inc. v. Agrium Inc. (7th Cir. 2012) may make it easier for the Department of Justice (...)

A US Court of Appeal unanimously expands extraterritorial reach of US antitrust rules in a foreign price-fixing conspiracy case (Potash II)
Cleveland-Marshall School of Law
Seventh Circuit Sitting En Banc Reverses in Potash, Announces Second Most Important of All FTAIA Opinions, Shores Up the Text Messaging Position on Conspiracy Pleading* Well, okay, I guess there might just possibly have been an appellate decision this week of even more pressing moment, but I (...)

The Hong Kong Legislative Council finally passes a comprehensive competition law
Jones Day (Sydney)
,
Jones Day (Beijing)
,
Gibson Dunn (Hong Kong)
After years of discussions, the Hong Kong Legislative Council finally passed a comprehensive competition law (the "HK Competition Law"). The HK Competition Law includes the classic prohibitions of anticompetitive agreements and abuses of market power, as well as a merger control regime (with (...)

US Ninth Circuit affirms dismissal of antitrust action by atm cardholders due to lack of standing (ATM Fee Antitrust Litigation)
Chadbourne & Parke (New York)
,
Chadbourne & Parke (New York)
The Ninth Circuit recently affirmed the decision of the United States District Court for the Northern District of California and held that automated teller machine (“ATM”) cardholders lacked standing to bring an antitrust class action against banks and former and current corporate owner-operators (...)

The Spanish Supreme Court confirms the judgment of the Valladolid Provincial Court in the sugar cartel (Nestlé, Gullón, Zahor)
University of Castilla-La-Mancha (UCLM)
The judgment of the Spanish High Court of June, 8, 2012, is the first case in which the highest court in Spain provides for a redress of the victims of a cartel of 1.1 million Euros. The sugar manufacturer Acor had appealed the judgment of the Valladolid Provincial Court of October, 9, 2009, (...)

A Chinese Intermediate Court dismisses allegations of vertical price-fixing against medical equipments company (Johnson & Johnson)
Institute of American Studies
The Shanghai Court’s Position on Resale Price Maintenance in the J&J Vertical Price-Fixing Litigation* On 18 May 2012, the Shanghai No. 1 Intermediate People’s Court (‘Shanghai Court’) dismissed allegations that Johnson & Johnson Medical (China) Ltd. and its Shanghai branch had set a (...)

The Portuguese Supreme Court broadly interprets the de minimis principle in beer distribution private enforcement case
Eduardo Paz Ferreira & Associados
On the 17th May 2012, the Portuguese Supreme Court of Justice (STJ) dismissed a competition law-based defense in the framework of a dispute between a beer supplier and a retailer who failed to comply with exclusivity and minimum purchase obligations. The case stands out as one more in a number (...)

The Kansas Supreme Court holds that the district judge erred in his demand for proof of a "concrete injury" in the price fixing of women’s accessories (O’Brien / Leegin Creative Leather Prods)
Sheppard Mullin (San Francisco)
,
Sheppard Mullin (Los Angeles)
Kansas Supreme Court Declares “Rule of Reason” Inapplicable to Kansas Antitrust Law; Legislature May Have a Different Idea* In Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007), the U.S. Supreme Court expressly overruled the categorical ban on vertical price fixing (...)

The US Kansas Supreme Court holds resale price maintenance is per se illegal under state law, but ruling subsequently overturned by state legislature (O’Brien / Leegin Creative Leather Products)
McDermott Will & Emery (Washington)
,
McDermott Will & Emery (Washington)
The Kansas Supreme Court recently determined resale price maintenance is per se illegal under state law, becoming the latest state to reject the rule of reason standard mandated by the Supreme Court of the United States. The decision serves as a reminder that although a supplier’s pricing (...)

The Kansas Supreme Court condemns vertical price fixing agreements as per se illegal under the Kansas Restraint of Trade Act (O’Brien / Leegin Creative Leather Products)
Wolters Kluwer (Riverwoods)
Kansas Supreme Court Condemns Vertical Price Fixing Agreements as Per Se Illegal* Earlier this month, the Kansas Supreme Court ruled that the reasonableness of a vertical price fixing agreement is not to be considered when determining whether such an agreement violates the Kansas Restraint of (...)

The Paris Commercial Court authorises production of documents contained in cartel case file in support of an action for damages (Primagaz, Butagaz)
Van Bael & Bellis (Brussels)
On 11 April 2012, the Paris Commercial Court handed down a preliminary judgment, before ruling on the merits of the case, authorising a plaintiff, namely Primagaz, to produce certain documents contained in the French Competition Authority’s case file in support of an action for damages (...)

The US Judge of New Jersey District Court dismisses the claims of the indirect purchasers in price-fixing litigation (Magnesium Oxide)
Constantine Cannon (New York)
,
Constantine Cannon (New York)
Indirect Purchasers’ Claims Undermined In Mineral Price-Fixing Litigation* Judge Dickinson R. Debevoise of the U.S. District Court for the District of New Jersey has dismissed class action claims of price fixing brought by indirect purchasers against several magnesium oxide companies in the (...)

The US Judge of New Jersey District Court dismisses the claims of the indirect purchasers for lack of standing to bring a cause of action (Magnesium Oxide Antitrust Litigation)
Weil, Gotshal & Manges (New York)
With No Reliance Nor Nexus, Indirect Purchaser Plaintiffs’ Claims Fall Short: In re Magnesium Oxide Antitrust Litigation (D.N.J. Apr. 5, 2012)* Introduction Antitrust claims by indirect purchasers of magnesium oxide did not survive defendant manufacturers’ motion to dismiss a complaint alleging (...)

The English High Court rules in favour of partial disclosure of documents in an action for damages allegedly caused by the gas insulated switchgear cartel (National Grid Electricity)
Matrix Chambers
National Grid – shining Pfleiderer’s light on access to EU leniency documents* A while ago I blogged on an important development in the General Court relating to the ability of victims of cartels and other anti-competitive practices to get their hands on relevant evidence enabling them to prove (...)

The US District Court of Detroit dismisses antitrust claims against practice of requiring hospitals to enter into "MFN-Plus" contracts (City of Pontiac / Blue Cross Blue Shield)
Sheppard Mullin (Los Angeles)
District Court Dismisses Follow-On Suit Challenging Blue Cross’s “MFN-Plus’ Contracts Under Both Per Se and Rule of Reason Standards* The District Court for the Eastern District of Michigan recently dismissed antitrust claims brought by the City of Pontiac against Blue Cross Blue Shield of (...)

A Northern District of California jury finds two of five defendants, all from Taiwan, guilty of conspiring to fix the prices of thin-film transistor liquid crystal displays (AU Optronics)
White & Case (Washington)
,
White & Case (Washington)
Are Antitrust Violations Crimes Involving Moral Turpitude?* On March 13, 2012, the United States obtained its first trial convictions ever against foreign nationals for antitrust violations under the Sherman Act. A Northern District of California jury found two of the five defendants, all from (...)

A Federal jury in San Francisco returns verdicts in rare price-fixing trial of global liquid-crystal displays conspiracy (AU Optronics)
Jones Day (Brussels)
,
Jones Day (Beijing)
,
Jones Day (Tokyo)
Companies and individuals that are accused of price-fixing rarely go to trial. Indeed, in the last 10 years, no corporate defendant (and only a handful of individuals) has elected to litigate an international criminal cartel case in a U.S. court. The vast majority of cases are resolved through (...)

A US District Court finds that a number of meetings related to drafting and implementing arbitration clauses was probative of an antitrust conspiracy (Currency Conversion Fee)
Sheppard Mullin (New York)
New York Federal Court Holds That Meetings Related To Drafting Arbitration Clauses May Be Probative Of Antitrust Conspiracy Despite Decision Makers’ Lack Of Knowledge* In In re Currency Conversion Fee Antitrust Litig., 2012 WL 401113 (S.D.N.Y. Feb. 8, 2012), Judge William H. Pauley III denied a (...)

A Chinese Intermediate People’s Court hears the first private litigation challenging vertical price-fixing (Johnson & Johnson)
Institute of American Studies
The J&J Vertical Price-Fixing Litigation in China* Johnson & Johnson Medical (China) Ltd. (‘J&J Medical’) and its Shanghai branch are sued in China for minimum resale price maintenance (RPM) by a Beijing-based distributor. This is the first private litigation that challenges RPM (...)

The Korean Fair Trade Commission offers funding private antitrust class action against two electronics companies fines for price-fixing (Samsung, LG)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
,
Skadden, Arps, Slate, Meagher & Flom (Washington)
,
Skadden, Arps, Slate, Meagher & Flom
Competition authorities around the globe are taking an increasingly active part in the pursuit of civil claims for damages for antitrust infringements. The decision by the Korean Fair Trade Commission (“KFTC”), announced on 24 January, to finance a damages action brought by the Green Consumer (...)

A US Court of Appeals holds claims against a foreign price-fixing cartel in the potash industry either exempted under the Foreign Trade Antitrust Improvements Act or insufficient to state a cause of action under the Twombly/Iqbal pleading standards (Potash)
Cleveland-Marshall School of Law
Potash Potash Potash!!!!! En Banc Review Is in the Hizz-ouse, Y’all!* Something striking occurred in the Seventh Circuit this year. In two different, massive antitrust class actions, in the space of about nine months, panels of that court applied the Twombly-Iqbal pleading formula to reach (...)

The German Federal High Court rules on damage claims by indirect purchasers and the passing-on defence in a cartel case (Carbonless paper cartel)
Allen & Overy (Hamburg)
On November 24, 2011 the German Federal High Court (Bundesgerichtshof) published its decision in the ORWI case. The claimant, a German savings bank, brought a claim for damages against a carbonless paper manufacturer, that were ceded to him by ORWI, a manufacturer of pre-printed forms. Claimant (...)

The German Supreme Court holds that indirect purchasers have standing to sue for antitrust damages but defendants may invoke passing-on defense (Carbonless paper cartel)
Jones Day (Dusseldorf)
,
Jones Day
The German Federal Civil Court (BGH) has held that both direct and indirect purchasers may sue for antitrust damages, but defendants may raise the passing-on defense. Through the passing-on defense, defendants try to demonstrate that plaintiffs suffered no financial harm, as they passed on the (...)

The EU Court of Justice issues a preliminary ruling on disclosure of leniency documents to third parties heightening concerns about encouraging private enforcement (Pfleiderer)
University of East Anglia - CCP (Norwich)
Article published on Centre for Competition Policy blog. ECJ Ruling in Pfleiderer Heightens Concerns about Encouraging Private Enforcement* The European Court of Justice (ECJ) has ruled that EU Law does not prohibit access to leniency documents by third parties seeking damages. Access should (...)

The EU Court of Justice issues a preliminary ruling holding that national courts need to balance on a case-by-case basis the interest of preserving the effectiveness of leniency programmes and that of facilitating private enforcement by third parties (Pfleiderer)
Winston & Strawn (London)
,
DLA Piper (Frankfurt)
On 14 June 2011, the European Court of Justice (ECJ) handed down a key judgment regarding the interplay between national leniency programmes and the right of individuals to claim damages for losses in EU cartel cases. The ECJ held that documents submitted under the auspices of a national (...)

A US Court of Appeals affirms the dismissal of a consumer class action challenging the television programming industry’s practice of exclusively offering multi-channel cable packages (Brantley / NBC Universal)
Sheppard Mullin (Los Angeles)
Ninth Circuit Rejects Consumer Antitrust Challenge To Cable Television Bundling* The Ninth Circuit recently affirmed the dismissal of a consumer class action challenging the television programming industry’s practice of exclusively offering multi-channel cable packages. Brantley v. NBC (...)

The French Competition Authority contributes to the public consultation launched by the European Commission on private enforcement
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence (French National Competition Authority) contributes to the public consultation launched by the European Commission*. Like some other NCAs (national competition authorities) in (...)

A US Federal District Court rejects breach of contract defense based on the illegality of the contract under the Robinson-Patman Act (Pet Food Express, Royal Canin)
Wolters Kluwer (Riverwoods)
Robinson-Patman Act Defense Rejected in Breach-of-Contract Case&* Asserting a breach-of-contract defense based on the illegality of the contact under the Robinson-Patman Act appears to be as difficult as successfully alleging a Robinson-Patman Act claim itself. Earlier this week, the (...)

A US District Court dismisses class action alleging electricity overcharges (Simon / Keyspan)
Skadden, Arps, Slate, Meagher & Flom (Washington)
,
Skadden, Arps, Slate, Meagher & Flom
KeySpan Corporation secured a sweeping victory on March 22, 2011, in the U.S. District Court for the Southern District of New York. Judge Shira Scheindlin’s broad decision granted with prejudice KeySpan’s motion to dismiss a putative consumer class action claiming approximately $360 million in (...)

The UK Competition Appeal Tribunal narrows the scope of follow-on claims (Emerson Electric / Carbone)
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
This article has been nominated by the Business Steering Committee for the business category, general antitrust section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On March 21, 2011, the U.K. Competition Appeal Tribunal (the “CAT”) struck (...)

A US District Court approves a settlement in a class action based on LCD price-fixing suit (In re LG Philips LCD)
Arent Fox
On March 11, 2011, Judge Richard Sullivan of the US District Court for the Southern District of New York gave final approval to a settlement between LG Display Co. Ltd. (“LG”) and a class of investors who alleged that LG’s stock price was artificially inflated due to LG’s undisclosed participation (...)

The UK High Court strikes out various competition law claims brought in relation to a landlord’s opposition to the granting of a new business tenancy under the Landlord and Tenant Act 1954 (Humber Oil Terminals Trustee/ Associated British Ports)
Francis Taylor Building
I. Overview In February 2011, the Chancery Division of the UK High Court (the «Court») struck out various competition law related claims put forward by Humber Oil Terminal Trustee Limited («HOTT», the claimant) to resist Associated British Ports’ («ABP», the defendant) attempts to end HOTT‘s business (...)

The UK High Court strikes out various competition law claims brought in relation to a landlord’s opposition to the granting of a new business tenancy under the Landlord and Tenant Act 1954 (Humber Oil Terminals Trustee/Associated British Ports)
Francis Taylor Building
I. Overview In February 2011, the Chancery Division of the UK High Court (the «Court») struck out various competition law related claims put forward by Humber Oil Terminal Trustee Limited («HOTT», the claimant) to resist Associated British Ports’ («ABP», the defendant) attempts to end HOTT‘s business (...)

The UK High Court strikes out various competition law claims brought in relation to a landlord’s opposition to the granting of a new business tenancy under the Landlord and Tenant Act 1954 (Humber Oil Terminals Trustee/ Associated British Ports)
Francis Taylor Building
I. Overview In February 2011, the Chancery Division of the UK High Court (the «Court») struck out various competition law related claims put forward by Humber Oil Terminal Trustee Limited («HOTT», the claimant) to resist Associated British Ports’ («ABP», the defendant) attempts to end HOTT‘s business (...)

The UK High Court strikes out various competition law claims brought in relation to a landlord’s opposition to the granting of a new business tenancy under the Landlord and Tenant Act 1954 (Humber Oil Terminals Trustee/ Associated British Ports)
Francis Taylor Building
I. Overview In February 2011, the Chancery Division of the UK High Court (the «Court») struck out various competition law related claims put forward by Humber Oil Terminal Trustee Limited («HOTT», the claimant) to resist Associated British Ports’ («ABP», the defendant) attempts to end HOTT‘s business (...)

The UK High Court strikes out various competition law claims brought in relation to a landlord’s opposition to the granting of a new business tenancy under the Landlord and Tenant Act 1954 (Humber Oil Terminals Trustee/ Associated British Ports)
Francis Taylor Building
I. Overview In February 2011, the Chancery Division of the UK High Court (the «Court») struck out various competition law related claims put forward by Humber Oil Terminal Trustee Limited («HOTT», the claimant) to resist Associated British Ports’ («ABP», the defendant) attempts to end HOTT‘s business (...)

The UK Court of Appeal upholds a decision of the Competition Appeals Tribunal denying a claimant follow-on damages (Enron Coal Services/ English Welsh & Scottish Railway)
Francis Taylor Building
I. Overview In January 2011, the UK Court of Appeal (the “Court”) dismissed an appeal against a ruling of the UK Competition Appeal Tribunal (the “Tribunal”) that Enron Coal Services Ltd (“Enron”) was not entitled to follow on damages against English Welsh and Scottish Railway Ltd (“EWS”). The Court (...)

A US District Court dismisses an antitrust suit brought against "catch and release" transactions on the market for licenses of mobile wireless-related patents (Siti / AST)
Stanford University - Stanford Law School
Antitrust suit against defensive patent purchasing organization dismissed* On 29 December 2010, the U.S. District Court for the Southern District of New York dismissed an antitrust suit brought by Siti-Sites.com, Inc. (“Siti”) against Allied Security Trust (“AST”) and allegedly associated entities (...)

The Hungarian High Court of Appeal rules that the tenderee to the agreement that was concluded on the basis of the outcome of a tender which was influenced by bid rigging is not entitled to damages (Bartók Béla tender)
Philip Morris
I. Introduction Private enforcement in bid rigging cases is increasing in Hungary. However, none of the filed actions have been successfully completed in recent years. II. Background of the judgment The background of the case and the decision of the Hungarian Competition Office (HCO) was (...)

The US Court of Appeals of Atlanta (Eleventh Circuit) affirms a ruling of dismissal of an action brought on behalf of a class of purchasers of visco-elastic foam mattresses against a distributor (Benny Jacobs Wanda / Tempur-Pedic)
Sheppard Mullin (Los Angeles)
Lights Out for Resale Price and Dual Distribution Class Action* On December 2, 2010, the Court of Appeals for the 11th Circuit affirmed a ruling of dismissal entered by the United States District for the Northern District of Georgia. Jacobs v. Tempur-Pedic Int.’l, Inc., No. 08-12720. Plaintiff (...)

The UK Court of Appeal upholds Chancellor’s order striking out "representative parts" of a class action claim (Emerald / British Airways)
Ropes & Gray (London)
,
Cleary Gottlieb Steen & Hamilton (London)
Class Actions in the U.K: Emerald Supplies Limited & Anr. v. British Airways plc* The U.K. Court of Appeal has recently rebuffed an attempt by Plaintiff’s firm, Hausfeld, to bring a collective “opt out” style action using Rule 19.6 of the CPR rules (Emerald Supplied Limited v. British Airways (...)

A US federal district court denies dismissal of antitrust conspiracy claim in tomato products industry (The Morning Star Company, SK Foods)
Wolters Kluwer (Riverwoods)
Claim of Antitrust Conspiracy Among Tomato Processors Avoids Dismissal* The federal district court in Sacramento, California, has refused to dismiss an antitrust claim alleging that SK Foods L.P.—a now-defunct food products distributor—conspired with others to eliminate competition in the market (...)

The UK Parliament revokes land agreements’ exemption from competition law
Morgan Lewis (London)
,
Squire Patton Boggs (London)
The UK Competition Act prohibits agreements that have the object or effect of restricting competition within the UK. Currently, land agreements - such as freehold, leasehold and rental agreements - are exempt from the prohibition, but that is all about to change. With effect from 6 April 2011, (...)

The US Court of Appeals for the Federal Circuit clarifies requirements for patent misuse (Princo)
Stanford University - Stanford Law School
U.S. Federal Circuit (en banc) finds no patent misuse in Princo* On 30 August 2010 the U.S. Court of Appeals for the Federal Circuit (en banc, 8-2) found – in contrast to an earlier ruling by a panel of the Court – that an alleged agreement between Philips Corp. and Sony Corp. to suppress a (...)

The UK Court of Appeal grants permission to appeal and proceed to a full trial on defence against trademark infringement allegations (Oracle / M-Tech)
Stanford University - Stanford Law School
English Court of Appeal allows M-Tech’s appeal against Oracle* On 28 August 2010, the English Court of Appeal issued a judgment setting aside an order for summary judgment by the High Court of Justice, thus granting M-Tech permission to appeal and proceed to a full trial to defend itself (...)

A US Court of Appeals finds that in order to allege a viable vertical restraint claim a plaintiff must plausibly allege the defendant’s market power (PSKS / Leegin Creative Leather Products)
Sheppard Mullin (Los Angeles)
Fifth Circuit Dismisses Leegin Resale Price Maintenance Case Anew, Following Supreme Court Remand* In 2007, the United States Supreme Court, updating the application of the cumulative advances in antitrust economics as applied to vertical restraint cases, overruled the venerable Dr. Miles Med. (...)

The US Court of Appeals for the 3rd Circuit vacates a class action settlement in diamond industry favoring the status of direct purchasers for antitrust laws enforcement in U.S. courts (Sullivan, DB Investments)
Gibson Dunn (New York)
In U.S., It’s Getting Harder to Bring Consumer Antitrust Class Actions* One of the inevitable facts of life in the U.S. after a government antitrust investigation becomes public – especially if it is a cartel investigation with an amnesty applicant or guilty pleas – is customer class actions. (...)

The California Supreme Court rejects pass-on defense under Cartwright Act in price fixing case in the pharmaceutical industry (Clayworth, Pfizer)
Wolters Kluwer (Riverwoods)
California Supreme Court Rejects Pass-On Defense in Price Fixing Case* By Jeffrey May, Wolters Kluwer Law & Business In a case of first impression, the California Supreme Court recently decided that alleged victims of a price fixing scheme can pursue treble damages claims under the (...)

The California Supreme Court rejects "Pass-On" Defense for antitrust damages (Pfizer)
Jones Day (Los Angeles)
,
Jones Day (Los Angeles)
In its July 12, 2010, decision in Clayworth v. Pfizer, Inc., the California Supreme Court rejected the « pass-on » defense for claims brought under California’s antitrust law, the Cartwright Act. Defendants have used the pass-on defense to argue that direct purchasers of goods sold by allegedly (...)

The Mexican Competition Commission fines five undertakings and five individuals for price fixing in the trucking market (CanaCar)
Jones Day (Mexico)
,
Jones Day (Mexico)
,
Jones Day (Mexico)
On June 14, 2010, the Mexican Federal Competition Commission (also known as Cofeco or CFC) announced its decision to fine a group of companies and individuals in the trucking industry, whom Cofeco charged with agreeing to impose a standard fuel surcharge, in violation of Mexican antitrust law. (...)

The Karlsruhe Higher Regional Court rules on key issues of private damages actions against hardcore cartels, decides on the indirect customer’s right to claim and addresses the challenging task of quantifying antitrust damages (Carbonless paper cartel)
Eberhard Karls University
,
Eberhard Karls University
Introduction Private enforcement in hardcore-cartels cases is getting in motion. In Germany, within less than one year two actions for damages against participants in hardcore-cartels were successful. After the decision of the Berlin Higher Regional Court in the “Berliner Transportbeton”-case (...)

The Karlsruhe Higher Regional Court awards € 100,000 in damages to a claimant on behalf of a printing firm which purchased paper from a subsidiary of a cartel holding the passing-on defence does not apply (Carbonless paper cartel)
White & Case (Hambourg)
In its decision dated 11 June 2010, the Higher Regional Court of Karlsruhe has awarded € 100,000 in damages to a claimant on behalf of a printing firm that purchased carbonless-paper indirectly from members of the carbonless-paper cartel. The printing firm was seeking damages for paying cartel (...)

The Portuguese Supreme Court dismisses claims for damages in the football broadcasting rights case on the basis of EU competition provisions (Vitória Sport Club and Federação Portuguesa de Futebol / Radiotelevisão Portuguesa)
Eduardo Paz Ferreira & Associados
In a case that goes back to a football game held in 1997, and in a rare example of private enforcement of competition law in Portugal, the claims for damages by a Portuguese football club, supported by the Portuguese Football Federation, were finally dismissed in the last instance. Vitoria (...)

The UK OFT accepts fine settlement for price fixing cartel in the bank industry (Royal Bank of Scotland)
University of East Anglia - CCP (Norwich)
Article published on Centre for Competition Policy blog. Reckless Bank Saved by the Taxpayer Will Now Pay Cartel Fine* British bank, Royal Bank of Scotland (RBS), has agreed to pay a fine of £28.6 million for price fixing. RBS employees shared confidential pricing information concerning (...)

A US District Court allows the reverse payment suits to proceed finding that the agreements extended beyond the scope of the concerned patent (Provigil)
Stanford University - Stanford Law School
U.S. District Court allows Provigil reverse payment suits to proceed* On 29 March 2010 the U.S. District Court for the Eastern District of Pennsylvania rejected defendants’ motions to dismiss in suits concerning reverse payment settlements between the brand name manufacturer of the (...)

A US District Court finds that the plaintiffs have failed to nudge their antitrust claims against building products distributor and grants order to dismiss the action (Bailey Lumber / BlueLinx)
Sheppard Mullin (Los Angeles)
Cross-Market Claims Flunk Twombly* In two companion opinions, Magistrate Judge Louis Guirola, Jr. of the Southern District of Mississippi granted motions to dismiss and greatly limited the scope of the claims asserted against several defendants in "opt out" actions following from the In re OSB (...)

The English High Court sees a way through public policy objections to the recovery of cartel fines from company executives (Safeway Stores)
Sanoma
,
Clayton Utz (Sydney)
a. Background Since 2005, the UK’s Office of Fair Trading (“OFT”) has investigated an alleged cartel scheme arranged by certain supermarkets and dairy producers between 2002 and 2003. In 2007, Safeway (now owned by Wm Morrisons Supermarkets plc), one of the supermarket chains implicated in the (...)

The English High Court opens the way for companies to pursue private damages actions against employees and directors who are involved in competition law infringements (Safeway Stores)
Shoosmiths (Thames Valley)
Background 1. Between 2002 and 2003, various employees and directors of the Safeway group ("Safeway"), a UK supermarket operator, were involved in the exchange of commercially sensitive retail pricing information with other UK supermarkets and dairy processors. As a consequence of this, (...)

The US Court of Appeals for the 2nd circuit affirms dismissal of antitrust claims addressing the proper application of the implied preclusion doctrine (Electronic Trading Group / Banc of America Securities)
Skadden, Arps, Slate, Meagher & Flom (New York)
,
Skadden, Arps, Slate, Meagher & Flom (New York)
On December 3, 2009, in In re Short Sale Antitrust Litigation (No. 08-0420-cv), the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a putative class action alleging collusion among certain financial institutions that serve as “prime brokers” in connection with short sale (...)

A US Court of Appeals affirms the dismissal of claims based on the aggregation of petroleum exchange agreements to show alleged cumulative anticompetitive effects (Gilley Enterprises / Atlantic Richfield)
Sheppard Mullin (Los Angeles)
Spirit of Twombly Exorcises Specter of Revived Aguilar Claims* The Ninth Circuit recently affirmed the dismissal of claims based on the aggregation of petroleum exchange agreements to show alleged "cumulative anticompetitive effects." Gilley Enterprises v. Atlantic Richfield Company, No. (...)

The UK Competition Appeal Tribunal clarifies timing rules for follow-on private antitrust actions for damages against cartel participants (BCL, BASF)
Morgan Lewis (London)
,
4-5 Gray’s Inn Square
,
Jones Day (London)
On 19 November 2009, the UK Competition Appeal Tribunal (“CAT”) confirmed the test it will apply when assessing whether to extend the time limit by which claimants may commence follow-on actions for damages before the CAT once there has been a finding of a breach of UK or EU competition law. The (...)

A US District Court finds sufficient ground for a claim on alleged illegal secret rebates, kickbacks and commissions, though it rejects the claim on collusive conduct on the market for sales of title insurance (California Title Insurance)
Sheppard Mullin (Los Angeles)
Strike Three: Plaintiffs Again Fail to Allege Facts of Collusion in Oligopoly Market* Rather than being "plus factors," allegations of interdependent industry structure simply demonstrate that the challenged conduct of defendant title insurers was as consistent with competition as with (...)

The High Court of England and Wales refuses to delay a jurisdiction hearing in a cartel case until after an Italian Court of Appeal rules in the Italian part of the same cartel case (Cooper Tire & Rubber / Shell Chemicals)
Simmons & Simmons (London)
As reported in our article Italian Torpedo defused? Tactical moves in private actions for damages, a number of claimants are seeking damages - possibly amounting to some tens of millions of pounds - in the Commercial Court of the High Court in a follow on action to the synthetic rubber cartel. (...)

A US Court rules that the FTAIA mandated dismissal of a putative class action brought against foreign airlines in a civil litigation concerning the allegation of price fixing (Lufthansa / Air France / KLM / Alitalia)
Sheppard Mullin (San Francisco)
U.S. Court Grounds Europe-Japan Air Travel Price-Fixing Case* On October 16, 2009, Judge Louis H. Pollak of the United States District Court for the Eastern District of Pennsylvania ruled that the Foreign Trade Antitrust Improvements Act of 1982, 15 U.S.C. § 6a ("FTAIA") mandated dismissal of a (...)

A Spanish Court provides for the first time ever for compensation of damages caused by a cartel (Sugar Cartel)
University of Castilla-La-Mancha (UCLM)
The judgment of the Valladolid Provincial Court of October, 9, 2009, is the first case in Spain in which a court provides for a redress of the victims of a horizontal restraint of competition, namely a cartel. It is well-known that cartels are prohibited by article 101 of the Treaty of (...)

The Berlin Higher Regional Court rules on key issues of standing and standard of proof in cartel damages suits
Eberhard Karls University
,
Eberhard Karls University
I. Introduction In its judgment on the first of October 2009 the Berlin Higher Regional Court has decided on important and disputed questions concerning the private enforcement of cartel damage claims under the German Act against restraints of Competition (“ARC”). Several statements in the (...)

The Viennese Commercial Court finds a private damages claim following a fine decision in the non-cash payment industry to be time barred (Europay)
Bpv Hügel (Vienna)
Decision 22 Cg 138/07y of 3 September 2009 by the Viennese Commercial Court (Handelsgericht Wien) concerns the, as far as can be seen, second private enforcement case of a claimant seeking damages in Austria following a fine decision. The decision by the Viennese Commercial Court, which found (...)

The Dutch Arnhem-Leeuwarden Appeal Court accepts the passing-on defence in landmark case (ABB)
Simmons & Simmons (Brussels)
,
Simmons & Simmons (Brussels)
,
Simmons & Simmons (Amsterdam)
Cartel members are not liable in damages to direct customers for any portion of the overcharge that the customer has passed on to its own purchasers. In brief Private enforcement has been high on the agenda of the European Commission throughout the five year term ending 31 October 2014, as it (...)

A US Court of Appeals finds that the tying arrangement consisting in sales of real estate property didn’t affect a substantial amount of commerce in the market for the real estate services identified as the tied product (Blough / Holland Realty)
Sheppard Mullin (Los Angeles)
Ninth Circuit Finds That New Home Buyer Plaintiffs Fail To Satisfy Per Se Tying Element That Amount Of Commerce Not Be “Insubstantial”"Zero Foreclosure” Is Less Than “De Minimus.”* Buyers of newly constructed homes in the Boise, Idaho, area filed a federal antitrust class action, alleging that (...)

The US DoJ files amicus brief on reverse payment settlements on the market for broad spectrum antimicrobial medicines (Arkansas Carpenters Health/Bayer, Hoechst, Watson)
Stanford University - Stanford Law School
U.S. DOJ files amicus brief on reverse payment settlements* On 6 July 2009 the U.S. Department of Justice filed an amicus brief in a reverse payment settlement case on appeal before the 2nd Circuit (In re Ciprofloxacin Hydrochloride Antitrust Litigation). The filing is in response of an (...)

The German Federal Court of Justice holds in a private antitrust enforcement case that offering varying prices in the gas retail market by different subsidiaries of the same mother company may be anticompetitive price discrimination by one economic entity (Entega)
University of East Anglia - CCP (Norwich)
In a private antitrust enforcement case the German Federal Court of Justice held that offering varying prices in the gas retail market by different subsidiaries of the same mother company may be anticompetitive price discrimination by one economic entity. Background German energy markets pose (...)

The Milan Court of First Instance holds that a claim exclusively aimed at obtaining from a national Court a judgment contrary to a Commission’s assessment, to avoid private enforcement, is inadmissible (ENI)
Simmons & Simmons (Milano)
On 11 May 2009, the Court of First Instance (Tribunale) in Milan handed down judgment in a civil action lodged by the Italian company ENI relating to the synthetic rubber cartel for which it was fined by the European Commission in November 2006. In the context of cross border private damages (...)

A US Court of Appeals affirms a grant of summary judgment for defendants in an antitrust action on an allegation of conspiration to allocate customers and fix prices within the tools business (Nitro Distributing / Alticor)
Sheppard Mullin (Los Angeles)
Eighth Circuit Affirms Dismissal of Antitrust Claims Against Amway* The Court of Appeals for the Eighth Circuit has affirmed a grant of summary judgment for defendants in an antitrust action which, according to the court, mischaracterized a vertical course of conduct as a “horizontal (...)

The English High Court denies representative action statute for antitrust price-fixing claims in the air freight services market (Emerald/British Airways)
Skadden, Arps, Slate, Meagher & Flom (Washington)
,
Skadden, Arps, Slate, Meagher & Flom
,
Dentons (Brussels)
On April 8, 2009, the English High Court of Justice, Chancery Division, granted British Airways’ request for an order striking two Plaintiffs’ representative claims. Though still subject to appeal, this decision potentially represents a significant obstacle to efforts underway to apply historical (...)

The English High Court strikes out a representative claim brought on behalf of “all other direct or indirect purchasers of air freight services”, refusing to stretch the scope of the English civil procedure rules in order to encourage the bringing of private damages actions (Emerald Supplies & ANR / British Airways)
European Commission - DG COMP (Brussels)
In striking out a representative claim brought on behalf of “all other direct or indirect purchasers of air freight services”, the English High Court has refused to stretch the scope of the English civil procedure rules in order to facilitate the bringing of such damages actions. Background The (...)

The Hungarian Parliament adopts an amendment limiting the liability of leniency applicants and introducing new calculation of amount of damages
Sczecskay Attorneys
This article was prepared for the UIA-AIJA seminar "Antitrust and Unfair Competition Developments Forum", held in Brussels on April 24-25, 2009. (More information: on www.uianet.org and www.aija.org websites). On March 23, 2009, the Hungarian Parliament adopted an amendment to the Competition (...)

The Higher Regional Court of Düsseldorf does not categorically rule out unjust enrichment claim for involvement in a cartel (Otis)
Van Bael & Bellis (Brussels)
In a judgment of 23 January 2009, which was recently made available, the Higher Regional Court of Düsseldorf (“Court”) dismissed a claim by a customer (Edelhoff) for the restitution of sums already paid under a contract with the lift manufacturer Otis, on the basis that the contract with Otis for (...)

The US Federal Circuit dismisses antitrust claims against reverse payment agreement between pharmaceutical companies (Ciprofloxacin Hydrochloride)
ArbJournal
On 15 October 2008 the Federal Circuit affirmed the grant of summary judgment by the Court for the Eastern District of New York that patent settlement agreements («Agreements») entered into between Bayer AG and Bayer Corp (collectively «Bayer») and several manufacturers of generic drugs providing (...)

The UK Court of Appeal decides on restitutionary damages in an action for damages resulting from a cartel (Devenish Nutrition / Sanofi-Aventis)
University of Exeter
By its decision of 14 October 2008, the Court of Appeal dismissed the appeal of the claimant, Devenish Nutrition Ltd, against the decision of Lewison J of 19 October 2007 . As a result, claimants seeking damages in a private action against a cartel, for losses based on a finding of an (...)

The UK Court of Appeal holds that compensatory damages are adequate and that a restitutionary reward is not available in an action for damages resulting from a cartel (Devenish Nutrition / Sanofi-Aventis)
McDermott Will & Emery (Brussels)
Introduction In view of the fact that Community law regulates competition, English law is required to provide remedies for violations to persons injured thereby. Indeed, as the European Court of Justice stated in Courage v. Crehan, "the full effectiveness of Article 81 of the Treaty and, in (...)

A US District Court rejects the allegation according to which inducement by a drug wholesaler of a drug price publisher to inflate the wholesale price may constitute a per se violation (New England Carpenters Health Benefits Fund / McKesson)
Sheppard Mullin (Los Angeles)
Twombly Meets Leegin. Failure of Plaintiff to Allege “Plausible” Entitlement to Relief Constitutes Failure to Allege “Antitrust Injury.”* In New England Carpenters Health Benefits Fund v. McKesson Corp., 573 F.Supp.2d 431 (Aug. 26, 2008), the District Court for the District of Massachusetts (...)

The Paris Commercial Court condemns a leading auction website to pay damages to perfume makers for a violation of their selective distribution networks (eBay)
On 30 June 2008, the Commercial Court of Paris (Tribunal de Commerce de Paris) rendered three important decisions condemning the international auction website eBay mainly for its participation to an infringement of the IP rights of six manufacturers of luxury products belonging to the Louis (...)

The Brazilian Antitrust Tribunal fines medical gas companies more than USD 1.3 billion for conspiracy (SDE/MJ/AGA)
Tauil & Chequer (in cooperation with Mayer Brown)
SDE/MJ ex officio v. AGA S.A et al., better known as the medical and industrial gases Cartel - price fixing and market division conspiracy in the medical and industrial gas market. The investigation began in December 2003, and CADE’s decision was reached in May 2008. Some customers who suffered (...)

The UK Competition Appeal Tribunal denies permission to bring follow-on damages actions while appeals to the European Court of First Instance are pending (Emerson Electric / Morgan Crucible)
Pinsent Masons (London)
Background 1. On 3 December 2003, the European Commission (the “Commission”) adopted a decision finding that various undertakings had participated in a series of agreements and concerted practices within the meaning of Article 81 EC Treaty ( “Article 81”) in the market for carbon and (...)

The UK Court of Appeal upholds the High Court’s finding that following an infringement decision by the European Commission, the appropriate claim is for compensatory and not restitutionary damages (Devenish Nutrition / Sanofi-Aventis)
European Commission - DG COMP (Brussels)
The Court of Appeal of England and Wales has ruled that restitutionary damages are not generally available in antitrust cases and that, in most cases, compensatory damages provide adequate remedies. Background In 2001, the European Commission adopted a decision finding that a number of (...)

The UK High Court rules that restitutionary damages are not an available remedy in anti-trust cases, nor will an account of a defendant’s profits be appropriate (Devenish/Sanofi-Aventis - "Vitamins Cartel")
Pinsent Masons (London)
Background The present case involves "follow on" claims for compensation in respect of damage suffered as a result of the vitamins cartel, which was famously subject to a Commission decision in 2001. The Commission found that notwithstanding the number of producers involved in eight distinct (...)

The UK High Court finds that following an infringement decision by the European Commission, the appropriate claim is for compensatory and not exemplary or restitutionary damages (Devenish Nutrition / Sanofi-Aventis)
European Commission - DG COMP (Brussels)
The High Court’s judgment is the first time that an English court has to consider what type of damages can be obtained in claims following from an infringement decision by the European Commission in competition cases. According to the judgment, a claimant is only entitled to compensatory damages (...)

A Spanish Court holds that it is not bound by an EC Commission decision under Art. 9 of EC Reg. 1/2003 (Carburantes Costa de la Luz v Repsol)
European Court of Justice (Luxembourg)
,
Garrigues
Article 9 of Council Regulation (EC) n° 1/2003, of 16 December 2002, on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJEC L 1, 4 January 2003, pp. 1-25) (“Article 9”) is one of the major new features of the new EC competition rules adopted in May (...)

The US Supreme Court redefines notice pleading and clearly raises the bar for plaintiffs in private antitrust conspiracy claims (Bell Atlantic/Twombly)
St. John’s University School of Law
Twombly: The Demise of Notice Pleading, the Triumph of Milton Handler and the Uncertain Future of Antitrust Enforcement* The Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) is a watershed ruling whose impact on private litigation, especially antitrust (...)

The US Supreme Court affirms the necessity of pleading elements in private antitrust conspiracy claims (Bell Atlantic / Twombly)
University of Indiana - Maurer School of Law
Pleading Consumer Antitrust Claims* The U.S. has long followed a system of private enforcement of law meant to redress public harm. In the law of antitrust, from the very beginning U.S. law provided a claim to plaintiffs who could show harm flowing from the violation. Convincing private (...)

The Regional Court of Düsseldorf rules on procedural key issues for cartel damages suits pawing the way to de facto class action for cartel damages in Germany (Cartel Damage Claims)
Eberhard Karls University
I. Introduction The Regional Court in Düsseldorf has decided on procedural core questions in its interlocutory judgment of 21 February 2007 and already indicated its stance on substantive issues in an additional court instruction concerning the follow on-damages suit relating to the German (...)

A Dutch Court decides, in an interlocutory proceeding, that the nullity of a price-fixing clause brings along the nullity of the franchise agreement as a whole, including its non-compete clause (Make It Easy)
European Commission - DG HR
,
European Court of Justice (Luxembourg)
Several franchise agreements were concluded between Make It Easy B.V. and Make It Easy Reality B.V. (hereafter the franchisers) on the one hand, and Make it Easy Gelderland V.O.F as well as other undertakings (hereafter the franchisees), on the other. According to these franchise agreements, (...)

The Paris Court of First Instance rules rules on the anticompetitive effect of a patent infringement collective complaint lodged against a search engine’s adwords system (Gifam / Google)
University Paris II Panthéon‑Assas
AdWords is Google’s flagship advertising product, and its main source of revenue. It offers pay-per-click advertising, and site-targeted advertising for both text and banner ads. But many of the words sold by Google to its clients are registered trademarks and Google has been recently facing (...)

The Brussels Court of Appeal awards damages for active sales breaching an exclusive distribution agreement (Horas International / Rexit)
Smartflats
,
Liège University - IEJE
The facts The appellant in this case is a Belgian firm whose business activities consist in distributing furniture and accessories (hereafter the “distributor”). The defendant is an Italian company specialized in the design and production of furniture (hereafter the “manufacturer”). In 1985, the (...)

A Spanish Commercial Court declares null and void an exclusive purchasing agreement on the basis of Art. 81.1 EC (El Mareny/Repsol)
London School of Economics
Factual background The present judgment is a new chapter of a lengthy saga concerning agreements signed between petrol distributors and Repsol Comercial de Productos Petrolíferos, S.A. (hereinafter, “Repsol CPP”), a subsidiary of the former monopoly in the Spanish petrol sector. This saga has (...)

The French Supreme Court holds that low-price practice cannot be sanctioned on the basis of tort law if it does not fall under competition provisions (Usines Merger / Giat Industries)
Université du Maine
In a judgement delivered on December, 6th 2005, the commercial Chamber of the French Supreme Court ruled on the relationship between competition provisions and unfair trading provisions on the one hand and tort law provisions on the other hand. The issue at stake concerned the practice of low (...)

The Spanish Supreme Court rejects the action against the NCA’s interim measures fining € 3 M price fixing in the framework of “non-genuine” agency agreements (Repsol)
London School of Economics
On 11 July 2001, the Tribunal de Defensa de la Competencia (hereinafter, “the NCA”) adopted a decision (“resolución”) in which it found that Repsol, S.A. (now Repsol YPF, S.A., hereinafter referred to as “Repsol”) acted in breach of Article 1(1) of the Spanish Competition Act. More precisely, the NCA (...)

The German Federal Court declares settlement concerning royalties for shipments to countries outside the territorial scope of a patent to be void (“Abgasreinigungsvorrichtung”)
University College London
I. Facts of the case and case history The claimant/licensee produces devices for cleaning exhaust fumes. The defendant/licensor owns a European patent protecting a specified process for cleaning exhaust fumes, with territorial effect (seeEuropean Patent Convention, Art. 3) in Germany, France, (...)

A Spanish Court considers a distribution contract to be a “genuine” agency agreement therefore not caught by Art. 81.1 EC (Rutamur / Repsol)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, “Campsa”) and Rutamur, S.A.(“Rutamur”) concluded in December 1988 an agency agreement concerning the distribution of oil products. The latter operated from premises hired to it by Campsa. The commission was set by reference to the (...)

A French Court condemns an undertaking to repair the damage suffered by an authorised dealer of a selective distribution network (LCJ Diffusion / La Roche Posay)
Sheppard Mullin (Brussels)
,
Notre Europe
This is a judgment of the Court of Appeal of Paris applying Article 81 EC which has been transmitted to the European Commission by virtue of Article 15(2) of Regulation n° 1/2003 and has been published on DG Competition’s website (See also on this case, C. Mai-Doremus and J. Philippe, The Paris (...)

The German Mannheim Regional Court decides on the right to claim against a vertically integrated cartelist and the standard of proof for antitrust damages in a follow on-suit (Carbonless paper cartel)
Eberhard Karls University
The Regional Court Mannheim decided in its judgment of 29 April 2005 on the right to claim against a vertically integrated cartelist and the standard of proof for antitrust damages in a follow on-suit after a final decision of the EC Commission (Carbonless paper) . Background and Context of (...)

The Madrid Commercial Court finds a distribution agreement to be null and void and decides that the claimant is not entitled to recover the sums paid by virtue of a contract (Aloyas / Repsol)
London School of Economics
Repsol Comercial de Productos Petrolíferos, S.A. (hereinafter, “Repsol”) and Estación de Servicio Aloyas, S.L., S.A. (“Aloyas”) concluded on 14 March 1995 a 10-year contract concerning the distribution of oil products. The parties agreed that the contract was an agency one. The term “agent” was even (...)

A US District Court holds that the action against multistate tobacco settlement agreement was barred by the state action doctrine (Sanders / Lockyer)
Sheppard Mullin (Los Angeles)
“Active Supervision” Standard Of Midcal Not Applicable To Conduct Of Sovereign. Multistate Tobacco Settlement Is Parker and Noerr Exempt Both For State And Private Parties* In the aftermath of the entry of the Multistate Tobacco Settlement Agreement (“MSA”), and enactment by the California (...)

A Spanish Tribunal finds that a distribution agreement may not be a ’genuine’ agency agreement and thus may fall within the scope of Art. 81.1 EC (Gebe / BP Oil España)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, “Campsa”) and Gebe, S.L. (“Gebe”) concluded in July 1988 an agreement concerning the distribution of oil products. The latter operated from premises hired to him by Campsa. The agency agreement included a non-compete obligation and (...)

A Spanish Court dismisses the appeal seeking to qualify an agency agreement as a resale agreement (Melón - E.S. Zarza / Repsol)
London School of Economics
On 2 January 2003, the Juzgado de Primera Instancia n° 74 de Madrid dismissed an action brought by Melón, S.A. (“Melón”) and E.S. Zarza, S.L. (“Zarza”), two undertakings active in the distribution of oil products, against Repsol Comercial de Productos Petrolíferos, S.A. (“Repsol”), an undertaking (...)

The US Court of Appeals for the Federal Circuit reverses the ruling of the lower court maintaning that a rebuttable presumption arises from the possession of patent rights to tying engineered fastening systems (Independent Ink / Illinois Tool Works)
Sheppard Mullin (Los Angeles)
Of Bats And Sunshine: Presumption Of Market Power In Patent Tying Case Alive But Rebuttable* In January, the Court of Appeals for the Federal Circuit issued an opinion in Independent Ink Inc. v. Illinois Tool Works, Inc.. Addressing the issue whether, in a Section 1 tying case, a rebuttable (...)

The Spanish Supreme Court rejects the appeal brought by two undertakings active in the distribution of oil products and considers the case-law of the ECJ as being a non-binding “reference” of “great value” (L’Andana)
London School of Economics
On 25 March 1996, the Juzgado de Primera Instancia de Valencia dismissed an action brought by L’Andana, S.A. and Estación de Servicion L’Andana, S.L. (both referred to hereinafter as “L’Andana”) against Repsol Comercial de Productos Petrolíferos, S.A. (“Repsol”). The claimants contended that the series (...)

A Belgian Appeal Court holds valid a resale price maintenance provision taking into consideration lack of evidence that the agreement restricted the national market or a substantial part of it (Incanto / Livoque)
Leuven University
Description of the impugned case On 20 September 2004, the Antwerp Court of Appeal (‘the Court’) rendered its decision on the compatibility of a franchising agreement with the Belgian competition rules. The franchisor, Incanto BVBA, is active in the sector of jewellery and accessories and has (...)

La Cour d’Appel du Royaume Uni juge que l’obligation contractuelle pour un opérateur mobile virtuel de payer le prix fixé par l’opérateur de réseau ne suffit pas à caractériser un accord au sens de l’Art. 81 CE (Unipart / O2)
Sheppard Mullin (Brussels)
Le litige oppose un opérateur mobile virtuel (Unipart) à un opérateur de réseau téléphonique sans fil (O2) auquel il achetait des heures de télécommunication pour les commercialiser directement auprès des consommateurs. L’opérateur mobile virtuel reproche à son ancien partenaire commercial de lui avoir (...)

A Spanish Court refuses to qualify a contract as a resale agreement and holds that the qualification given by “administrative bodies” to similar agreements is not binding upon national courts (Melón / Repsol)
London School of Economics
Repsol Comercial de productos petrolíferos S.A. (hereinafter, “Repsol”), supplied oil products to Melón S.A. (hereinafter, “Melón”), pursuant to an agency agreement signed between the parties. Considering that it was not a “genuine” agency agreement and that Commission Regulation (EC) n° 2790/1999, of (...)

The Spanish Audiencia Provincial de Madrid refuses to submit a preliminary reference to the ECJ considering that this would only be relevant if the agreements at stake were deemed to be agency ones (Ahigal and Melón/Repsol)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, ‘Campsa’) concluded an agency agreement concerning the distribution of oil products with two companies, Ahigal, S.A. (“Ahigal”) and Melón, S.A. (“Melón”). In 2003, Ahigal and Melón decided to bring an action against Repsol Comercial de (...)

The US Supreme Court blocks foreign plaintiffs from bringing price-fixing cartel claims (Hoffman-LaRoche / Empagran)
Skadden, Arps, Slate, Meagher & Flom (Washington)
,
Skadden, Arps, Slate, Meagher & Flom (New York)
,
Skadden, Arps, Slate, Meagher & Flom (Washington)
On June 14 2004, in a unanimous judgment, the Supreme Court blocked foreign plaintiffs from bringing an antitrust claim in U.S. courts seeking damages based on higher foreign prices that are allegedly independent of the domestic effects of higher domestic prices. However, the case was remanded (...)

The US Supreme Court restricts the applicability of US antitrust laws with regard to injuries suffered abroad holding that foreign nations can preserve competition without American interference (Hoffman-La Roche / Empagran)
IRS Office of Chief Counsel
F. Hoffman-La Roche Ltd. v. Empagran S.A.: The Supreme Court Trusts That Foreign Nations Can Preserve Competition Without American Interference* In F. Hoffman-La Roche Ltd. v. Empagran S.A., the United States Supreme Court held that United States courts do not have jurisdiction over claims of (...)

A Spanish jurisdiction holds that the application of EC law would only be pertinent in case the agreements are deemed “non-genuine” agency ones (La Safor/Compañía Logística de Hidrocarburos)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, “Campsa”) and Automoción y Servicion La Safor, S.L. (“La Safor”) concluded in March 1990 a number of contracts related to the distribution of oil products. The contractual relationship included an agency agreement as well as a (...)

A Spanish Court annuls a judgment rendered in first instance on qualification of a so-called agency agreement in the oil products distribution sector (Repsol)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, “Campsa”) and Caminas, S.A. (“Caminas”) concluded in July 1981, November 1981 and July 1989 several agreements related to the exploitation of a gas station (“the agreements”) by the latter. Caminas brought an action for annulment (...)

The Commercial Court of the Queen’s Bench Division of the High Court of England and Wales makes a group litigation order in a competition case in the automobile sector (Prentice / DaimlerChrysler UK)
Reed Smith (London)
Gerald Barling is a justice of the High Court and president of the Competition Appeal Tribunal (CAT). He wrote an article “Collective Redress for Breach of Competition Law – A Case for Reform” published in Competition Law Journal Volume 10 Issue 1, 2011. In it he deals with Group Litigation Orders (...)

The Spanish Supreme Court found that an exclusive car distribution agreement falled within the scope of Regulation 123/1985 and confirmed damages (Mercedes)
London School of Economics
On 10 February 1987, the Spanish subsidiary of Mercedes-Benz (hereinafter, “Mercedes”) and Motor Lugo, S.L. (“Motor Lugo”, which later became Auto Lugo) concluded an exclusive distribution agreement concerning the cars and spare parts manufactured by the former. Both parties agreed to set a minimum (...)

A Luxembourg Commercial Court rules that a de minimis exclusive distribution agreement is not prohibited under Article 85 EC (La Pastourelle/Rolling)
FratiniVergano
1. Facts On 1 April 1982, "la Pastourelle" (hereafter "the plaintiff"), limited company under Belgian law, and "Maison Rolling" (hereafter "the defendant"), shop located in Luxembourg, concluded an exclusive sale agreement for a duration of 5 years. This agreement was extended for the same (...)

A Luxembourg Commercial Court rules that a de minimis exclusive distribution agreement is not prohibited under Article 85 EC (La Pastourelle/Rolling)
FratiniVergano
1. Facts On 1 April 1982, "la Pastourelle" (hereafter "the plaintiff"), limited company under Belgian law, and "Maison Rolling" (hereafter "the defendant"), shop located in Luxembourg, concluded an exclusive sale agreement for a duration of 5 years. This agreement was extended for the same (...)

A Luxembourg Commercial Court rules that a de minimis exclusive distribution agreement is not prohibited under Article 85 EC (La Pastourelle / Rolling)
FratiniVergano
1. Facts On 1 April 1982, "la Pastourelle" (hereafter "the plaintiff"), limited company under Belgian law, and "Maison Rolling" (hereafter "the defendant"), shop located in Luxembourg, concluded an exclusive sale agreement for a duration of 5 years. This agreement was extended for the same (...)

A Luxembourg Commercial Court rules that a de minimis exclusive distribution agreement is not prohibited under Article 85 EC (La Pastourelle/Rolling)
FratiniVergano
1. Facts On 1 April 1982, "la Pastourelle" (hereafter "the plaintiff"), limited company under Belgian law, and "Maison Rolling" (hereafter "the defendant"), shop located in Luxembourg, concluded an exclusive sale agreement for a duration of 5 years. This agreement was extended for the same (...)

A Luxembourg Commercial Court rules that a de minimis exclusive distribution agreement is not prohibited under Article 85 EC (La Pastourelle/Rolling)
FratiniVergano
1. Facts On 1 April 1982, "la Pastourelle" (hereafter "the plaintiff"), limited company under Belgian law, and "Maison Rolling" (hereafter "the defendant"), shop located in Luxembourg, concluded an exclusive sale agreement for a duration of 5 years. This agreement was extended for the same (...)

The Irish Supreme Court considers a pharmaceuticals distribution agreement to be in conformity with both domestic and EC competition law and rejects a claim in civil proceedings (Chanelle Veterinary/Pfizer)
London School of Economics
Irish High Court, 30 July 1997, Chanelle Veterinary Limited v. Pfizer (Ireland) Limited and Pfizer Animal Health Irish Supreme Court, 11 February 1999, Chanelle Veterinary Limited v. Pfizer (Ireland) Limited and Pfizer Animal Health [1999] 1 IR 365 Facts of the case The plaintiff, Chanelle (...)

Dominance

The Romanian High Court of Cassation and Justice confirms the right to compensation of a company that suffered damages following the imposition of discriminatory conditions by the incumbent postal service provider in relationship with its customers (Mailers Serv / Compania Nationala Posta Romana)
Romanian Competition Council (Bucharest)
On 28.7.2011, Mailers Serv S.R.L. (in insolvency) brought an action for damages before the Tribunalul Bucuresti, Sectia Civila against CNPR claiming the difference of the discounts that would have received as a customer of CNPR if the latter would have applied the same conditions as to the (...)

The Canadian Competition Tribunal denies leave to commence a private application in a refusal to deal case (CarGurus)
Affleck Greene McMurtry
Used car listing website operator CarGurus Inc.’s attempt to force rival Trader Corporation to supply it with vehicle listing data has encountered a dead end as the Competition Tribunal denied it leave to commence a private application under several provisions of the Competition Act. This (...)

The Court of Appeal of Milan overturns a judgment on screen scraping and intermediation of online travel agencies and rejects the allegations of abuse of dominance by an airline (Lastminute / Viaggiare / Ryanair)
Macchi di Cellere Gangemi (Rome)
,
Macchi di Cellere Gangemi (Rome)
Introduction With two judgements delivered on June 2015 regarding cases brought by Lastminute.com S.r.l. and Viaggiare S.r.l. respectively against Ryanair , the Court of Appeal of Milan held that Ryanair’s refusal to grant travel agencies the right of intermediating its tickets does not (...)

The Italian Supreme Court opens the doors to standalone private actions (Cargest)
Bonelli Erede Pappalardo (Rome)
,
Bonelli Erede Pappalardo (Rome)
In its decision of 6 June 2015 the Italian Supreme Court annulled the previous decision of the Court of Appeal of Rome , which had rejected the claim brought by a number of fruit and vegetable wholesalers (the “Wholesalers”) against Cargest - the company that manages the fruit and vegetable (...)

The Swedish Market Court dismisses an abuse of dominance action because the relatively scarce market data presented was not sufficient to define the relevant market and establish dominance (Pizza24 Nordic / OnlinePizza Norden)
Vinge (Stockholm)
Online Food For Thought* The Swedish Market Court’s judgment in Pizza24 / OnlinePizza A judgment of the Swedish Market Court from February 2015 is an unfortunate missed opportunity to grapple with interesting issues around online intermediary services. The case concerned online services for (...)

The Chinese Supreme Court sets up the standard for antitrust private litigation with detailed analysis method in regard to market definition and dominance establishment (Qihoo / Tencent)
AnJie Law (Beijing)
,
AnJie Law (Beijing)
When the Antitrust Encounter the Internet: The Legal Battle between Qihoo 360 and Tencent Finally Comes to the End* The outgoing year has witnessed the significantly increasing role of „Antitrust‟ and „Internet‟ played in China‟s economy. With the Supreme People‟s Court („SPC‟) ratified the original (...)

The Brazilian Administrative Council for Economic Defense renders two legal opinions in investigations related to sham litigation practices (Eli Lilly do Brasil)
Tauil & Chequer (in cooperation with Mayer Brown)
,
Tauil & Chequer (in cooperation with Mayer Brown)
On August 20, 2014, the General Superintendence of the Administrative Council for Economic Defense (“CADE”) rendered two legal opinions in investigations related to sham litigation practices recommending to CADE’s Tribunal: (i) the conviction of the companies Eli Lilly do Brasil Ltda. and Eli (...)

The Milan Commercial Court rejects a damages claim of a telecommunication operator because of the limitation period (Uno Communication and Vodafone)
Studio Legale Scoccini E Associati
,
Introduction On the 3 April 2014, the Enterprises Court of Milan rejected the damages claim brought by Uno Communication against Vodafone because of expiry of the limitation period (5 years under Italian law). This case arose as a follow-on action from a decision of the Italian Competition (...)

The Lisbon Appeal Court revises an arbitral award in a dispute between the National Pharmacy Association and IMS Health (Associação Nacional de Farmácias and Farminveste / IMS Health)
Eduardo Paz Ferreira & Associados
Replacing a previous contract, the National Pharmacy Association (ANF) executed a contract with IMS Health in 2008, by which it transmitted to the latter data on purchases in its associated pharmacies, in exchange for remuneration. This data was used to provide pharma market intelligence in a (...)

The Italian Supreme Court confirms a rejection of damages claim for alleged abuse of collective dominance (Delta Impianti)
Cleary Gottlieb Steen & Hamilton (Rome)
On 5 March 2014, the Italian Supreme Court upheld a judgment of the Court of Appeals of Catania, dated 2 May 2006, which rejected a damages claim for alleged abuse of collective dominance consisting in the imposition of unfair prices and other trading conditions, as well as in discriminatory (...)

The Swedish Competition Authority seeks to fine an undertaking after it was found to abuse its dominant position in a successful private antitrust action (Swedavia)
Vinge (Stockholm)
Follow-on damages inverted* Swedavia and the Swedish Competition Authority Competition lawyers in Europe are well acquainted with the steady rise of follow-on damages actions, whereby consumers harmed by a competition infringement can “piggyback” on an authority infringement decision and seek (...)

The Italian Court awards to a local telecom operator damages in a follow-on case of a margin squeeze decision against the incumbent operator (Brennercom / Telecom Italia)
Studio Legale Scoccini E Associati
Introduction On the December 27 2013, the Enterprises Court of Milan awarded damages to Brennercom, a fixed-line telecom operator active in the north-east of Italy, in respect of a claim brought against Telecom Italia. This case arose as a follow-on action from a decision of the Italian (...)

The US District Court of Western Texas dismisses antitrust claims predicated upon alleged trademark misuse in relation to flow conditioners in oil pipelines (RJ Machine / Canada Pipeline Accessories)
Orrick, Herrington & Sutcliffe (San Francisco)
Trademark Misuse Is ^Almost^ Never an Antitrust Injury* Trademarks are commonly thought to convey no market power. In RJ Machine Co. v. Canada Pipeline Accessories Co., Case No. 1:13-cv-00579-SS (W.D. Tex. Nov. 22, 2013) (Sparks, J.), the court dismissed antitrust claims predicated upon (...)

The England and Wales Court of Appeal refuses interim injunction against alleged refusal to deal as claimant failed to identify any market on which the defendant could conceivably be dominant (Chemistree Homecare / Abbvie)
St John’s Chambers
United Kingdom: interim injunctions in competition litigation* Private competition litigation is continuing to develop in the United Kingdom. The courts and the Competition Appeal Tribunal are seeing an increase in the number and complexity of follow-on damages actions, often between foreign (...)

The England and Wales High Court grants interim injunction ordering defendant bank to continue providing financial services given threat of irreparable harm to claimants (Dahabshiil Transfer Services / Barclays Bank)
St John’s Chambers
United Kingdom: interim injunctions in competition litigation* Private competition litigation is continuing to develop in the United Kingdom. The courts and the Competition Appeal Tribunal are seeing an increase in the number and complexity of follow-on damages actions, often between foreign (...)

The U.S. Court of Appeals for the Ninth Circuit affirms the district court’s denial of class certification and the dismissal of complaint with prejudice (Sommers/Apple)
Orrick, Herrington & Sutcliffe (San Francisco)
If Your Allegations Don’t Establish a Price Effect, You May Lack Antitrust Standing* In Somers v. Apple, Inc., Case No. 11-16896 (9th Cir. Sept. 3, 2013), the Ninth Circuit affirmed the district court’s dismissal of a putative class action against Apple, Inc., alleging antitrust violations in (...)

A Dutch court issues a preliminary judgment in a dispute between a multinational food and beverage producer and a candy bars producer concerning discount practices with service stations (Mars / Nestlé)
Van Bael & Bellis (Brussels)
On 7 August 2013, a Dutch court issued a preliminary judgment in a dispute between Nestle, the multinational food and beverage producer, and Mars, the producer of candy bars. The dispute concerns the discount practices of Mars in its relationship with service stations. Under these (...)

The UK Competition Appeal Tribunal awards exemplary damages against conduct calculated to make a profit exceeding the compensation payable (2 Travel Group / Cardiff City)
University of Dundee
Exemplary Damages in Competition Litigation* Much ink has been spilt following 2 Travel v. Cardiff Bus and Albion Water v. Dŵr Cymru Cyfyngedig on the subject of competition litigation in Europe. An axiom with varying justification is that European competition litigation must not embrace (...)

The Portuguese Supreme Court clarifies the conditions regarding the existence of an abuse of economic dependence (Toyota Portugal)
Sérvulo & Associados
The recent Toyota Portugal judgment of the Supreme Court of Justice (Supremo Tribunal de Justiça) provides a clear-cut opportunity to, even briefly, examine the current stances on the abuse of economic dependency (also known as relative dominance), i.e., the practice where one undertaking (...)

The England and Wales High Court refuses interim injunction against the refusal to grant access to airport coach terminal even though arguable case of abuse made out as damages would be an adequate remedy if abuse established at trial (Arriva The Shires / London Luton Airport Operations)
St John’s Chambers
United Kingdom: interim injunctions in competition litigation* Private competition litigation is continuing to develop in the United Kingdom. The courts and the Competition Appeal Tribunal are seeing an increase in the number and complexity of follow-on damages actions, often between foreign (...)

An Italian civil court issues a judgement finding an abuse of dominant position by airline company, in violation of Article 102 TFEU, consisting in the refusal to grant to online travel agencies access to the information on its flight tickets (Ryanair)
Legance - Studio Legale Associato
,
Legance - Studio Legale Associato
By judgement no. 7825/2013, the civil court of Milan (Tribunal of Milan) has assessed, from an antitrust perspective, the conducts carried out by Ryanair against Viaggiare S.r.l., an online travel agency (OTA) active in the sale of leisure and travel services, including the sales of Ryanair’s (...)

The US District Court, 9th Circuit refuses to dismiss the plaintiffs’ below-cost pricing claims raised under Unfair Practices Act in respect of clinical laboratory testing services (Rheumatology Diagnostic Laboratory/Aetna)
Orrick, Herrington & Sutcliffe (San Francisco)
Is the California Unfair Practices Act a Free Pass on Motions to Dismiss?* Probably not, but UPA claims can be tough to defeat at the motion to dismiss stage. Witness Rheumatology Diagnostics Laboratory, Inc. v. Aetna, Inc., 2013 U.S. Dist. LEXIS 151128 (N.D. Cal. Oct. 18, 2013) (Orrick, J.), (...)

The UK Competition Appeal Tribunal dismisses the claim for exemplary damages against a water management company (Albion Water / Dŵr Cymru Cyfyngedig)
University of Dundee
Exemplary Damages in Competition Litigation* Much ink has been spilt following 2 Travel v. Cardiff Bus and Albion Water v. Dŵr Cymru Cyfyngedig on the subject of competition litigation in Europe. An axiom with varying justification is that European competition litigation must not embrace (...)

The UK Competition Appeal Tribunal awards damages in a follow-on claim arising from abuse of dominance on the market for transportation and partial treatment of water (Albion Water / Dŵr Cymru Cyfyngedig)
Blackstone Chambers
Albion v Dwr Cymru: Incompetence and counterfactuals* The Competition Appeal Tribunal today delivered that rarest of beasts: a judgment awarding damages in a follow-on claim. After its decade-long fight, Albion Water has been awarded around £2 million for Dŵr Cymru’s abuse of dominant position in (...)

The UK Competition Appeal Tribunal awards highest damages ever in a case involving an abuse of dominant position in the water sector (Albion Water)
One Essex Court
There are approximately 45 private actions for damages pending in the United Kingdom Courts. Some are stayed pending final decisions of the Commission and the European Courts; some are at the disclosure stage; some are setting up “confidentiality rings” prior to disclosure; and others are lost in (...)

The US Supreme Court reverses the decisions of the lower courts and emphasizes that any model supporting a plaintiff’s damages case must be consistent with its liability case (Comcast / Behrend)
Sheppard Mullin (Washington)
Comcast v. Behrend Sets a Higher Bar for Class Certification* On March 27, 2013, the U.S. Supreme Court continued its recent trend of imposing more stringent standards for class certification in Comcast Corporation v. Behrend, 569 U.S. ___ (2013). At issue was whether the proponents of (...)

The German Regional Court of Düsseldorf makes reference for a preliminary ruling to the CJEU on standard-essential patents (Huawei / ZTE)
Stanford University - Stanford Law School
German Court makes reference for a preliminary ruling to the CJEU on standard-essential patents* On 21 March 2013, the Landgericht Düsseldorf (“Düsseldorf Regional Court”) made a reference (the order is only available in German) for a preliminary ruling to the Court of Justice of the European (...)

The Court of Milan orders the incumbent telecoms operator to pay €1.8m damages to a licensed operator in a follow on action for abuse of a dominant position (Telecom Italia / OKcom)
Simmons & Simmons (Milano)
In a further follow on action of note, the Court of Milan published a judgment on 13 February 2013, ordering Telecom Italia to pay damages of some €1.8m to OKcom. OKcom had sought compensation for harm it claimed to have suffered through Telecom Italia, the incumbent telecoms operator, abusing (...)

The Chinese Xi’an Intermediate People’s Court rules in favour of a consumer in a case of abuse of dominance on the market for local cable service (Shanxi Broadcast)
King & Wood Mallesons (New York)
Chinese Consumer Wins Abuse of Dominance Civil Action against Tie-in Sales in Program Bundling* On January 5th, 2013, the Xi’an Intermediate People’s Court (the “Court”) ruled in favor of a consumer who sued Shanxi Broadcast & TV Network Intermediary (Group) Co., Ltd. (“Network”), the local (...)

The Czech Office for Protection of Competition again fines telecoms operator for abuse of dominance on the market for telecom services for business customers (Telefónica Czech Republic)
Kinstellar (Prague)
Subject matter of the case: a first decision of the Office The Office for the Protection of Competition ("Office") imposed a fine of CZK 93,109,000 (approximately EUR 3,724,000 ) on Telefónica Czech Republic, a.s. ("Telefónica") for abuse of dominance on the market for public telecom services (...)

A US District Court grants motion for summary judgment on the grounds that the plaintiffs failed to establish the element of “dangerous probability” for an antitrust claim for attempted monopolization on the market for containerized waste hauling and disposal services (All Star Carts and Vehicles / BFI Canada Income Fund)
Sheppard Mullin (Los Angeles)
Summary Judgment Dooms Attempted Monopolization Claim in Small Container Trash Hauling Market* In All Star Carts and Vehicles, Inc., et al. v. BFI Canada Income Fund, et al., Case No. 2:08-cv-01816-LDW-AKT, August 1, 2012, the District Court for Eastern District of New York recently granted (...)

The English High Court grants an interim injunction against the use by private hire vehicles of bus lanes marked for taxis: insufficient connection with EU law (Transport for London)
Matrix Chambers
Taxi wars in London – does EU law have a role to play?* On Thursday of last week the High Court granted Transport for London (TfL) an interim injunction relating to the high-profile raising of the stakes in its battle with Addison Lee (AL), the largest “private hire” (ie minicab) operator (PHO) (...)

An Italian City Court rejects application for an injunction against the sale of the iPhone 4S (Samsung / Apple)
Stanford University - Stanford Law School
Italian Court rejects Samsung’s request for injunction against Apple in Italy* On 5 January 2012 an Italian Court rejected Samsung’s request for an injunction against Apple in relation to the sale of the iPhone 4S in Italy. Samsung alleges that Apple is violating a number of its patents, which (...)

A Chinese Intermediate Court dismisses antitrust claims for failing to prove abusive conduct in the car aftermarket (Dongfeng Nissan case)
Institute of American Studies
The Dongfeng Nissan Case and the Gaps of China’s Competition Law Regime in Tackling Vertical Restraints* The recent Dongfeng Nissan Case shed some interesting lights on the status of vertical restraints rules in China, three years after China’s Anti-Monopoly Law (AML) became effective in August (...)

The Brussels Court of Appeal decides the appointment of experts to investigate abuse of dominant position in the railway sector (NMBS / SNCB, Electrabel)
Van Bael & Bellis (Brussels)
On 11 October 2011, the Brussels Court of Appeal (Hof van Beroep/Cour d’Appel) gave an interlocutory judgment designating a panel of experts in a case pitting NMBS/SNCB, the national railway company, against Electrabel. The appeal judgment overturns the initial judgment of the Court of (...)

A Chinese District People’s court accepts a complaint brought by private companies against a public entity for abuse of administrative monopoly in the railway transport industry (Taiyuan Railway Bureau)
China Competition Bulletin (Beijing)
,
China Competition Bulletin (Beijing)
,
Institute of American Studies
Taiyuan Railway Bureau Sued for Monopoly* On 7 September 2011, the Shanxi Joint Transport Group Co., Ltd. brought an administrative lawsuit in the Taiyuan Xinghualing District People’s Court against the Taiyuan Railway Bureau for breaches of the AML and the Anti-Unfair Competition Law (AUCL). (...)

A Chinese District People’s court receives a complaint brought by private enterprises against a public entity for abuse of dominance in railway transport sector (Taiyuan Railway Bureau)
AnJie Law (Beijing)
Taiyuan Railway Bureau is Sued by Private Enterprises Alleged Monopoly* On September 7th, 2011, an antitrust litigation against Taiyuan Railway Bureau was brought to Taiyuan Xinghualing Court on the ground that Taiyuan Railway Bureau violated Anti-monopoly Law and Unfair Competition Law of PRC (...)

A US District Court denies a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of defendant having filed an ANDA with the FDA (Shionogi Pharma / Mylan)
Sheppard Mullin (Los Angeles)
ANDA Automatic Stay of FDA Approval Does Not Defeat Standing in Sham Litigation Antitrust Counterclaim* The District of Delaware recently denied a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of defendant Mylan, Inc. ("Mylan") having filed an (...)

A US District Court finds that the alleged facts were insufficient to allege a plausible monopoly power maintenance claim in respect of the market for automotive refrigerant recycling and recovery machines (SPX / Mastercool)
Sheppard Mullin (Los Angeles)
Antitrust Counterclaim in Patent Infringement Action Lacks Plausible Allegations of Competitive Injury* Plaintiff SPX Corporation ("SPX") brought a patent infringement action against Master Cool U.S.A. ("Master Cool"). Master Cool answered and counterclaimed. In its counterclaim, it alleged (...)

The Chinese Administration for Industry and Commerce (AIC) investigates and handles antimonopoly case against a local government for abuse of administrative power in the market for vehicles’ GPS services (Guangdong Province)
China Competition Bulletin (Beijing)
,
China Competition Bulletin (Beijing)
,
Institute of American Studies
The Administration for Industry and Commerce of Guangdong Province (Guangdong AIC) Investigated and Handled Local Government’s Administrative Monopoly Conduct* In January 2011, three companies complained to the Guangdong AIC, a local bureau of the SAIC, alleging that a municipal government of (...)

A Norwegian District Court dismisses a counter-claim against a subsidiary of the incumbent railway operator for abusing its dominant position (CargoNet, CargoLink)
BA-HR
In a judgment handed down on 24 June 2011, the Drammen District Court dismissed a counter-claim entered by railway operator CargoLink AS («Cargolink«) against fellow operator CargoNet AS («CargoNet«). Cargolink alleged that it had suffered economic losses as a result of CargoNet‘s abuse of (...)

A US District Court dismisses the antitrust counterclaims alleging monopolization on the market for maintainance of printers, while allowing the tortious interference claims to continue (Océ North America / MCS)
Sheppard Mullin (Los Angeles)
Aftermarket Monopolization Claims Dismissed as Afterthought* Plaintiff Océ North America, Inc. ("Océ") brought an action against a service market supplier for copyright infringement. Defendant MCS Services, Inc. ("MCS") filed a Kodak-style "aftermarket" monopolization counterclaim, in addition (...)

A US District Court denies a motion to dismiss allegations of a price squeeze implemented through the granting of secret rebates to the plaintiff’s customers on the market for resailing of paper bag products (Western Pacific Kraft / Duro Bag)
Sheppard Mullin (Los Angeles)
In Secret Rebate Case, If It Walks Like A Duck, Allegations That It Will Also Quack Are Plausible* On May 24, 2011, United States District Court, Central District of California, denied a motion to dismiss allegations of a "price squeeze" implemented through the granting of secret rebates to (...)

A Chinese District Court rules for the plaintiff in unfair competition case relating the antivirus software industry (Tencent/Qihoo)
Cleary Gottlieb Steen & Hamilton (Hong Kong)
,
Norton Rose Fulbright (Brussels)
,
J.P. Morgan
This article is the winner of readers business awards of the 2012 Antitrust Writing Awards. Click here to learn more on the Antitrust Writing Awards. On April 26, 2011, Beijing Chaoyang District Court (the “Court”) ruled against Qihoo, the provider of 360 (a widely used antivirus software) and (...)

A US District Court dismisses claims on monopolization, unfair competition and fraud, since the plaintiff did not articulated a proper definition of the relevant market (Digital Sun / The Toro Company)
Sheppard Mullin (Los Angeles)
Federal Court Finds Allegations of “Bad Faith” in Sprinkler License Agreements to be “Vox Clamantis in Deserto”* On March 22, 2011, the United States District Court for the Northern District of California entered an order granting defendants The Toro Company’s ("Toro") motion to dismiss plaintiff (...)

A US district court rejects a proposed settlement in the digitized book search sector (Google Books Settlement)
University of Chicago - Law School
Moving Forward in Google Book Search* On Tuesday, after more than a year of silence, Judge Denny Chin rejected the proposed settlement in the Google book search case. The innovative settlement asked more than Rule 23 could deliver. In his words, the settlement “would simply go too far.” Others (...)

A US district court rejects settlement between online search provider and copyright owners in the digitized books sector (Google Books Settlement)
Garrigues (Brussels)
Google Books Settlement Rejected* Some of you will recall that roughly a year ago I wrote a post on the Google Books settlement (“Google Books Settlement: It’s the search market stupid!”) in which I argued that the only competitive problem, if any, posed by the amended settlement related to the (...)

A US District Court denies a motion to dismiss a fraudulent patent claim and allows standing to a direct purchaser of NAND flash memory (Ritz / SanDisk)
Sheppard Mullin (Los Angeles)
Expanded Standing, or “Back to Basics”? Flash Memory Direct Purchasers Found to Have Standing to Assert Walker Process Claims* In Ritz Camera & Image, LLC v. SanDisk Corporation, et al., United States District Court, ND Cal., Case No. 5:10-CV02787-JF/HRL, the court denied a motion to dismiss (...)

A US District Court dismisses indirect purchaser class actions challenging proposed reverse payment agreements as anticompetitive on an allegation of preventing a cheaper generic medicine to enter the market sooner (Plavix Indirect Purchaser)
Sheppard Mullin (San Francisco)
Indirect Purchaser Plavix Class Actions Tossed for Lack of Antitrust Standing* On January 31, 2011, the District Court for Southern District of Ohio granted defendants’ Rule 12(b)(6) motion, dismissing indirect purchaser class actions that challenged proposed reverse payment agreements as (...)

The Brussels Court of First Instance dismisses the action brought by the national railway company for lack of proof (NMBS / SNCB, Electrabel)
Van Bael & Bellis (Brussels)
On 20 September 2010, the Brussels Court of First Instance dismissed the action brought by NMBS/SNCB, the national railway company, against Electrabel for lack of proof. Mere reliance upon a report published by the energy regulator was found inconclusive evidence to demonstrate an abuse (...)

The US 1st District California Court of Appeal upholds a jury verdict finding that a claim of unfair competition based on below-cost sales of advertising did not require proof of the defendant’s ability to recoup losses by subsequent monopoly pricing (Bay Guardian Company / New Times Media)
Sheppard Mullin (Los Angeles)
A Step Back to Square One? California Court of Appeal Elevates UPA Protection of Competitors Over Protection of Competition in Newspaper Ad Dispute* On August 11, 2010, the California Court of Appeal for the First District upheld a jury verdict in favor of plaintiff Bay Guardian Company (...)

The French Commercial Supreme Court validates the passing-on defence in a follow-on action based on the lysine cartel (Doux aliments / Ajinomoto Eurolyne)
European Commission - DG FISMA
,
Weil, Gotshal & Manges (Paris)
In a ruling dated 15 June 2010, the French Commercial Supreme Court validated the passing-on defence in a damages action. The Court stated that, in a damages case, the judge must assess whether the claimant has passed on to its own clients the overcharge resulting from an infringement. This (...)

A Chinese intermediate People’s court dismisses antitrust claims for failing to prove abusive conduct in the termite prevention service market (HY/HT)
China Competition Bulletin (Beijing)
,
China Competition Bulletin (Beijing)
,
Institute of American Studies
Huzhou Yiting Termite Prevention Service Co., Ltd (HY) v Huzhou Termite Prevention Research Institute (HT) Pending in the Zhejiang Higher People’s Court* On 25 November 2009, HY filed a suit against HT in the Hangzhou Intermediate People’s Court, alleging that HT had abused its dominance in (...)

The Tribunal of Milan rejects a request for injunctive relief against the Italian soccer association for illegitimate award procedures of TV rights for live broadcast of soccer matches (Conto TV/Lega Calcio)
Italian Competition Authority (Roma)
,
University Luiss Guido Carli - GRIF (Rome)
,
University Luiss Guido Carli - GRIF (Rome)
CONTO TV S.r.l. (CONTO TV) is a small broadcasting company operating satellite TV in Italy. LEGA CALCIO is the Italian Soccer Association, entrusted by the Italian law (Law no. 106/2007 and Legislative Decree n. 9/2008) with the task of selling soccer matches audio-television rights of its (...)

An Italian Court of Appeal annuls its precedent injunctive relief against the soccer association for illegitimate award procedures of TV rights for live broadcasts of soccer matches (Conto TV/Lega Calcio)
Italian Competition Authority (Roma)
,
University Luiss Guido Carli - GRIF (Rome)
,
University Luiss Guido Carli - GRIF (Rome)
Introduction CONTO TV S.r.l. (CONTO TV) is a small broadcasting company operating satellite TV in Italy. LEGA CALCIO is the Italian Soccer Association, entrusted by the Italian law with the task of selling soccer matches audio-television rights of its associates, Serie A and B clubs. On July (...)

The Italian Milan Court of Appeal issues an injunctive relief against the national football league for illegitimate award procedures of TV rights for live broadcasts of soccer matches (Conto TV/Lega Calcio)
Italian Competition Authority (Roma)
,
University Luiss Guido Carli - GRIF (Rome)
,
University Luiss Guido Carli - GRIF (Rome)
Introduction CONTO TV S.r.l. (CONTO TV) is a small broadcasting company operating satellite TV in Italy. LEGA CALCIO is the Italian Soccer Association, entrusted by the Italian law (Law n. 106/2007 and Legislative Decree n. 9/2008) with the task of selling soccer matches audio-television rights (...)

The High Court of England and Wales declines to issue a stay against a damage claim brought by tyre manufacturers seeking redress from members of an alleged Butadiene Rubber and Emulsion Styrene Butadiene Rubber cartel (Cooper Tire & Rubber Company and others / Shell Chemicals UK Limited and others)
European Commission - DG COMP (Brussels)
The High Court of England and Wales has declined to issue a stay against a damage claim brought by tyre manufactures seeking redress from members of an alleged Butadiene Rubber and Emulsion Styrene Butadiene Rubber cartel. Background The damage claim brought by the tyre manufacturers follows (...)

The Tribunal of Milan holds a decision on the private enforcement of Art. 82 EC concerning cease of purchase of advertising spaces on leading commercial networks (Sky / Mediaset)
University of Turin
On September 16, 2009 Sky Italia S.r.l. has filed a lawsuit under the Art. 700 of the Italian Code of Civil Procedure with the Tribunal of Milan against RTI and Publitalia , both owned by the Mediaset Group, for the infringement of (a) the antitrust principles under Art. 82 of the European (...)

The Beijing Dongcheng District People’s Court announces the settlement in private enforcement action brought against a Chinese mobile company for abuse of dominance (China Mobile)
AnJie Law (Beijing)
The Ending of the ’China Mobile’ Case* This is an article corresponding to the China Mobile case which was discussed at China Law Vision on April 21, 2009. On 23 October 2009 the Beijing Dongcheng District People’s Court announced the settlement of an Anti-Monopoly Law (AML) case brought by Zhou (...)

The US Court of Appeals for the Second Circuit states that direct purchasers of antidiuretic medicine have antitrust standing in patent infringement suit (DDAVP)
Stanford University - Stanford Law School
2nd Circuit finds DDAVP purchasers stated Walker Process and related claims and had antitrust standing* On 16 October 2009 the Court of Appeals for the Second Circuit held (In re: DDAVP Direct Purchaser Antitrust Litigation) that direct purchasers of desmopressin acetate tablets, sold under (...)

The Portuguese Competition Authority forbids abusive behaviour and imposes commitments in agricultural market (Sugalidal-Heinz)
Sérvulo & Associados
Last October 15th, the Portuguese Competition Authority (Autoridade da Concorrência, hereinafter “PCA”) decided that Sugalidal abused its dominant position in the market for seeds by imposing farmers to acquire and plant only Heinz seeds. According to the Press Release 20/2009, the cPCA decided (...)

The US District Court of SDNY dismisses antitrust claims raised by a distributor of compatible mainframe computers produced by the plaintiff (IBM/T3 Technologies)
Stanford University - Stanford Law School
U.S. District Court dismisses T3’s antitrust claims against IBM* On 30 September 2009 the U.S. District Court of S.D.N.Y. granted in International Business Machines Corp. v. Platform Solutions, Inc. and T3 Technologies, Inc. (No. 06 Civ. 13565(LAK)) IBM’s motion for summary judgment on antitrust (...)

The Italian Competition Authority is investigating the sale of television rights for soccer matches ("Lega Calcio" - Procedure selettive lega nazionale professionisti campionati)
University of Turin
Since July 22, 2009 the Italian Competition Authority is investigating the sale of lucrative television rights to soccer matches in the country’s top league, Lega Calcio, because it suspects such rights have been packaged to benefit incumbent pay-TV operators and not viewers (Case n° A/418 of (...)

The Austrian Supreme Court does not automatically equate cartel law infringements with unfair competition law infringements (Law firm software)
Salzburg University
On 14 July, 2009, the Austrian Supreme Court ruled that cartel law infringements do not automatically qualify as unfair commercial practices under the Austrian Act against Unfair Competition. Background The plaintiff, a small-sized Austrian law firm software provider, brought an action for an (...)

The German Federal Court of Justice clarifies that defendants can invoke the abuse of dominance against an injunction claim of a patentee if the latter has refused a licence in an abusive manner (Orange-book-standard)
University of East Anglia - CCP (Norwich)
Summary In its decision of 6 May 2009 the German Federal Court of Justice held that a defendant can invoke the abuse of dominance against an injunction claim of the patentee if the latter refused a licence in an abusive manner. The patentee acts in an abusive manner if he refuses an (...)

A Danish Court awards € 10 M damages for loss suffered as a result of an abuse of a dominant position in the postal sevices sector (Danish Postal Service)
Danish Competition and Consumer Authority (Copenhagen)
The Danish Eastern High Court awards damages in the amount On 20 May 2009, the Danish Eastern High Court awarded damages in the amount of DKK 75 million (EUR 10 million) to a Danish distributor of unaddressed mail for loss suffered as a result of the Danish Postal Service’s abuse of a dominant (...)

A US Court of Appeals affirms the decision of the lower court allowing a summary judgment on all claims including the exclusion of competition from the market for gasoline (Partner / ExxonMobil Oil)
Sheppard Mullin (Los Angeles)
PMPA Franchise Agreement Disavowing Plaintiff’s Claim to an Exclusive Market and Geographic Territory Trumps Alleged Oral Commitment* Partner v. ExxonMobil Oil Corp., 08-1590 (6th Cir. May 4, 2009) In 2000, plaintiff Partner & Partner, Inc. entered into a lease/franchise agreement with (...)

The US Supreme Court affirms that when a regulatory structure aiming to deter and remedy anti­-competitive harm prevails, the costs of antitrust enforcement are likely to be greater than the benefits (Pacific Bell Telephone / Linkline Communications)
Sheppard Mullin (Los Angeles)
Supreme Court Restricts “Price-Squeeze” Claims Under Section 2 of the Sherman Act to Situations Where the Defendant has an Antitrust Duty to Deal* In Pacific Bell Telephone Co. v. Linkline Communications Inc., 2009 U.S. Lexis 1635, 555 U.S. ______ (February 25, 2009) ("Linkline"), the U.S. (...)

The US Supreme Court rejects antitrust liability for price-squeeze by integrated dominant firms in the telecommunication industry illustrating deep suspicion about the institutional players in the antitrust system (Pacific Bell / linkLine)
University of Michigan
linkLine’s Institutional Suspicions In this essay, I review the Supreme Court’s most recent monopolization decision—Pacific Bell v. linkLine—with a focus on the suspicions between the various institutions that had a hand in the case. I. The linkLine Decision The linkLine decision continues the (...)

The Italian Supreme Court underlines the need for correct market definition in a private enforcement case concerning an alleged abuse of dominant position (Cetel / Enel)
European Court of Justice (Luxembourg)
Introduction In one of the few cases involving antitrust litigation it dealt with so far, the Corte Suprema di Cassazione (Supreme Court of Cassation, Italy’s highest civil court, the “Court”), on 13 February 2009, handed down an important judgement in which it underlined the need for accurate (...)

A US District Court dismisses based on the statute of limitations an antitrust complaint alleging a refusal to deal with a professional association of cardiologists expressed by an operator of five hospitals in Arkansas (Little Rock Cardiology Clinic / Baptist Health)
Sheppard Mullin (Los Angeles)
What Part of “No” Don’t You Understand? Unequivocal Refusal to Deal Triggers Statute of Limitations* Little Rock Cardiology Clinic v. Baptist Health, 573 F. Supp. 2d 1125 (E.D. Ark., August 29, 2008). Little Rock Cardiology Clinic (“LRCC”) is a professional association of cardiologists practicing (...)

The Polish Supreme Court rules that a civil court may establish an abuse of a dominant position independently, unless the NCA has already found such an abuse (Torun Timber Industry Enterprise)
WilmerHale (Brussels)
On 23 July 2008 the Polish Supreme Court ruled that if it is necessary to declare a contract to be void, a civil court may independently investigate and find an abuse of a dominant position, unless the national competition authority has already established such an infringement. The proceedings (...)

The Japanese courts dismiss a predatory pricing lawsuit brought by Yamato against Japan Post (Yamato Unyu, Nippon Yūsei Kōsha, Yūbin Jigyō)
European Commission - DG COMP (Brussels)
The views expressed in this case summary are those of the author, not those of any organisation. Yamato, Japan’s largest door-to-door delivery service, sought injunctive relief against the low prices of a competitor, Japan Post. In a judgment of 19 January 2006, the Tokyo District Court (...)

The UK High Court of Justice rejects a claim of predatory behaviour on a local bus transport services market (Chester City Transport v. Arriva)
King’s College (London)
Introduction and Background to the Claim In Chester City Council and Chester City Transport Limited v. Arriva Plc, Arriva Cymru Limited and Arriva North West Limited [2007] EWHC 1373 (Ch), the High Court of Justice had to consider a claim brought by Chester City Council (‘the Council’) and (...)

The UK High Court of Justice rules that, although Art. 82 EC does not contain a declaration of nullity equivalent to Art. 81 EC, the effect is the same (English Welsh & Scottish Railway/E.ON)
King’s College (London)
This note considers antitrust private enforcement in the UK; it should be read together with other cases recently heard by the “ordinary” courts (the High Court and Court of Appeal) and two follow-on damages’ claims which have been lodged before the specialist Competition Appeal Tribunal (...)

The UK Hight Court rules on interim unjunction for an alleged unlawful refusal to supply in the pharmaceutical sector (AAH Pharmaceuticals/Pfizer-UniChem)
King’s College (London)
This note considers one of the two cases recently heard by the “ordinary” courts (the High Court and Court of Appeal) (See also A. Jones, The UK Court of Appeal rejects an allegation of unreasonable refusal to supply and unlawful discriminatory pricing (Attheraces/British Horseracing Board), (...)

The UK Court of Appeal overturns the first ever finding by the High Court of an abuse of dominance pursuant to Art. 82 EC (Attheraces/British Horseracing Board)
White & Case (London)
,
Reed Smith (London)
Background A recent decision of the Court of Appeal has reversed the first ever High Court finding of an Article 82 infringement in litigation between private parties. Attheraces v British Horseracing Board was an appeal from the High Court decision of Justice Etherton. The Judge who had held (...)

The UK Competition Appeal Tribunal grants interim damages of £ 2 M in a case of abusive drugs price setting (Healthcare at Home / Genzyme)
Hogan Lovells
Background GenzymeLimited ("Genzyme”) is the manufacturer of Ceredase and Cerezyme, drugs used in the treatment of Gaucher disease. Genzyme also provided home care services to administer its drugs. The home care services were initially subcontracted, firstly to Caremark and then to Healthcare (...)

A US District Court dismisses antitrust claims arising from an allegation of foreign related conduct that affected the plaintiff’s foreign sales (AMD / Intel)
Sheppard Mullin (San Francisco)
Court dismisses AMD’s “foreign commerce claims” against Intel for lack of subject matter jurisdiction and standing* In a recent opinion, the District Court for the District of Delaware dismissed AMD’s antitrust claims against Intel that arose out of Intel’s alleged foreign-related conduct that (...)

The Lithuanian Court of Appeal reduces the amount of damages in the case of an abuse of dominant position by the former State-controlled company on the alcoholic beverages market (Stumbras)
Lithuanian Competition Council
On 26 May 2006 the Lithuanian Court of Appeal (“LCA”) issued a ruling ordering a reduction of the amount of damages to be paid by AB Stumbras (“Stumbras”) to one of its customers, UAB Siauliu tara (“Siauliu tara”). The ruling is the latest development of the case, the origins of which date back to (...)

A Dutch Court dismisses a plea on excessive tariff rates under both Dutch competition law and Art. 82 EC (BAT/Chipnik, "Tobacco vending machines")
European Commission - DG HR
,
Dutch Ministry of Security and Justice
British American Tobacco (hereafter “BAT”) produces and supplies tobacco products. It owns a large number of cigarette vending machines. Chipknip provides services in relation to banking chip cards. When equipped with specific chips, banking cards can be used as electronic wallets. In 1999, the (...)

The Athens Court of Appeal seeks a preliminary reference in the case of a pharmaceutical company denying the supply of certain drugs to Greek wholesale (GlaxoSmithKline)
University College London
Factual background The plaintiff was a company operating at the wholesale level, in the pharmaceutical sector, supplying pharmacies and hospitals with drugs and other products related to that sector. The defendant was the Greek Subsidiary of the GlaxoSmithKline Company incorporated in the UK. (...)

A French first instance Court ready to welcome the defendant’s counter-claim that the plaintiff abused its alleged dominant position through aggressive and spurious patenting policy on the basis of Art. 82 EC (LuK Lamellen/Valeo)
University Paris II Panthéon‑Assas
In most patent litigation cases, the defendant’s standard defence consists in challenging the validity of the plaintiff’s patents, whose infringement is claimed. In this case, the defendant’s counter-claim was also based on a far less usual weapon, i.e. the plaintiff’s alleged abuse of dominant (...)

A Spanish Court dismisses an application brought by a pay-TV against the Spanish copyright collecting society for breach of Art. 82 EC (Canal Satélite Digital - DTS / SGAE)
London School of Economics
Canal Satélite Digital, S.L. (hereinafter, “Canal Satélite”) y DTS Distribuidora de Televisión Digital, S.A. (“DTS”) are two Spanish companies whose main shareholder is Sogecable, the main pay-TV operator in Spain (which develop its pay-TV activities under the commercial name Digital+). Canal Satélite (...)

The Court of Appeal of Athens examines the concept of the abuse of dominant position in the context of the mobile telephony market (2093/2006)
University of Reading
The facts An agent selling mobile phones lodged a complaint to the Court of First Instance of Athens against its supplier claiming that the latter’s decision to terminate their agreement constituted an anti-competitive unilateral behaviour breaching the relevant national competition law (...)

The German Federal Court of Justice holds that the EC motor vehicles block exemption does not create any obligation to admit a plaintiff as an authorized repairer (Qualitative Selektion)
Fresenius Medical Care (Frankfurt)
Background The defendant, a manufacturer of motor vehicles, terminated its service agreement with the plaintiff, an authorized provider of repair and maintenance services, by contractual notice effective June 30, 2002. The defendant intended to change its criteria for selecting authorized (...)

The Queen’s Bench Division of the High Court of England & Wales gives important guidelines as to the standard of proof for claiming damages in competition cases (Arkin)
Reed Smith (London)
Arkin v. Borchard Lines Ltd., [2003] All E.R. (D) 173, [2003] EWHC 687 (Comm) (10 April 2003), is important as one of the first damages claims brought in a United Kingdom court for breach of Articles 81 and 82 of the Rome Treaty involving private enforcement of competition law. It was decided (...)

The Court of First Instance of Athens rejects the claim that a pharmaceutical company abused its dominant position by limiting the supply of certain drugs to the distributors in Greece in order to avoid parallel exports of its products (GlaxoSmithKline)
Agora Trading
,
University of Reading
The facts In 2001 a distributor of pharmaceutical products lodged a complain to the Court of First Instance of Athens against its supplier claiming that the latter’s decision to stop supplying it with drugs (as it had been doing for 20 years) and to establish a new distribution network in the (...)

The English High Court deals with the issue of whether a party could, in national proceedings, rely on conclusions of facts and issues reached by the Commission, the CFI and the ECJ in related proceedings (Iberia U.K. v. Bpb Industries and British Gypsum)
European Commission - DG COMP (Brussels)
"The English High Court’s Judgment In Iberia U.K. Ltd V (1) Bpb Industries Plc And (2) British Gypsum Ltd"* The facts The defendants (BPB Industries Plc and British Gypsum Ltd) are major suppliers of plasterboard to the UK and for the purposes of Article 86, occupy a dominant position in that (...)

Mergers

A US District Court starts hearings in a class action case where the plaintiffs argue that a previously concluded DoJ settlement failed to ameliorate the competitive harm occasioned by the removal of a direct competitor and price maverick (AB InBev / Grupo Modelo)
King & Wood Mallesons (Sydney)
This article was originally published on In Competition by King & Wood Mallesons (click here). Closing time* Given our previous posts on the topic you would be forgiven for thinking we have a particular interest in Corona sales. Rather, the AB InBev / Grupo Modelo merger has been (...)

The Finnish Parliament approves the new Competition Act introducing amendments to both merger and antitrust rules
European Commission (Brussels)
Finland: New Competition Act approved by the Parliament* On 11 March 2011, the Finnish Parliament approved the new Finnish Competition Act. The Act will enter into force in autumn 2011. The main amendments are the following. One of the major changes brought by the new law relates to the (...)

State Aids

German State aid private enforcement: The problem of access to the Courts
German Ministry for Science, Economics, and Transport
1. General considerations State aid is prohibited - art. 87 EC, now art. 107 TFEU. This is a very apodictic statement. In real life, things are slightly more complicated. State aid, money or adequate advantages granted to private entities by public bodies, is common practice in many forms. (...)

The EU Court of Justice outlines the principles that apply to recovery of incompatible aid (Commission / Germany)
College of Europe (Bruges)
i) Domestic Legal Problems Do Not Make the Recovery of Incompatible Aid Absolutely Impossible ii) Role of National Courts in Cases of Non-notified Aid* Main points The only defence for non-recovery of incompatible State aid is absolute impossibility. Obstacles in domestic legal proceedings (...)

The EU General Court confirms the EU Commission’s decision ruling that the Province of Burgenland had granted State aid which was not compatible with the common market (Land Burgenland and Republic of Austria)
Trummer & Thomas
,
Trummer & Thomas
,
Borealis
I. Introduction On 28 February 2012 the General Court confirmed the European Commission’s (“Commission”) decision of 30 April 2008 and ruled that the Province of Burgenland had granted State aid to Grazer Wechselseitige Versicherung AG (“GRAWE”) which was not compatible with the common market. (...)

The EU General Court rules that the EU Commission failed its duty to act following a complaint by low cost airline against alleged State aid to Italian airlines (Ryanair)
Van Bael & Bellis (Brussels)
On 29 September 2011, the General Court handed down its judgment concerning complaints by Ryanair concerning alleged state aid to Italian airlines. The General Court found that the Commission had failed in its duty to act on the complaints. The case stems from letters sent by the low (...)

The German High Court rules that companies have standing to sue against illegal State aid to competitors (Lufthansa, Ryanair)
Jones Day (Frankfurt)
,
Jones Day (Dusseldorf)
,
Jones Day (Frankfurt)
In a decision of 10 February 2011, the German Federal Court of Justice (Bundesgerichtshof, BGH) ruled that companies can bring court action the challenge state aid granted to their competitors. Companies doing business in Germany will in the future have to ensure that all their transactions (...)

The German High Court rules that companies have standing to sue against illegal State aid to competitors (Lufthansa, Ryanair)
Jones Day (Frankfurt)
,
Jones Day (Dusseldorf)
,
Jones Day (Frankfurt)
In a decision of 10 February 2011, the German Federal Court of Justice (Bundesgerichtshof, BGH) ruled that companies can bring court action the challenge state aid granted to their competitors. Companies doing business in Germany will in the future have to ensure that all their transactions (...)

A German Regional Court rules that an EC Commission decision ordering recovery of an illegal aid measure must first be issued before a German court may deal with a request brought by a competitor ("Ryanair 4")
European Commission - DG COMP (Brussels)
,
Maersk (Copenhagen)
Brief description of the facts and legal issues The Coblence Higher Regional Court of appeal rejects the appeal lodged by Lufthansa against LG Bad Kreuznach’s judgment and rules that the appeal lacks a legal basis. A Commission decision (be it provisional or definitive) ordering the recovery of (...)

The Polish Supreme Court rules that ignorance of law burdens both contracting parties if they are concluding a contract which is contrary to law, in particular with EC State aid law (Fish-processing plant)
Hogan Lovells (Warsaw)
,
PKN Orlen
Factual background: The claimant brought an action against the Agency for Restructuring and Modernization of Agriculture for payment in relation to the agreement on grant of financial aid for the claimant in respect of a project relating to periodic suspension of activities concerning (...)

The German Administrative court rules that a service contract for the regional rail public transport is not subjected to State aid notification (Nordrhein-Westfalen)
European Commission - DG COMP (Brussels)
,
Maersk (Copenhagen)
Brief description of the facts and legal issues The Gelsenkirchen Administrative Court holds that a service contract for regional public rail transport is not subject to a notification requirement. A definitive Commission decision stating declaring that Article 87(1) EC has been infringed is (...)

A German Administrative Court decides that if an aid measure that is found to formally infringe EC law cannot automatically be challenged for recovery then the infringement justifies the suspension of any further payment of that aid to the beneficiary (Betriebsstätte des Tourismusgewerbes)
European Commission - DG COMP (Brussels)
,
Maersk (Copenhagen)
Brief description of the facts and legal issues The Potsdam Administrative Court holds that, if an aid measure that is found to formally infringe EC law cannot automatically be challenged for recovery, the infringement justifies the suspension of any further payment of that aid to the (...)

The French Civil Court of Appeal of Basse-Terre holds that third parties cannot request a national court to statute on the alleged incompatibility of a State aid measure but confirms national courts’ jurisdiction for claims for damages (Primistères Reynoird)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
Factual Background The society Primistères Reynoird imports goods from the continental part of France and other Member States of the European Union to Guyana and paid the levies in relation to the dock dues and an additional tax for the period between 1 October 1991 and 31 December 1992. In (...)

A German Administrative Court of appeal rules that a broadcasting tax that is part of an existing aid cannot be challenged before a national court unless the EC Commission demands its modification be suppressed pursuant to Art. 88.2 EC ("Rundfunkgebühr 1")
European Commission - DG COMP (Brussels)
,
Maersk (Copenhagen)
Brief description of the facts and legal issues The Baden-Württemberg administrative court of appeal holds that a tax payer, refusing to pay a radio tax, cannot base its claim upon an alleged infringement of EC State aid rules by the German radio financing system. This broadcasting tax is part (...)

A Slovakian Regional Court rules on the central office on employment failure to issue formal decisions on its refusal to grant de minimis State aid (Emil Krajèík)
Nedelka Kubáč advokáti (Bratislava)
,
Ružička Csekes
,
Ružička Csekes
The Regional Court ruled that the Central Office on Employment as well as regional employment offices breached rules on administrative proceedings by omitting to issue formal decisions on refusal to grant the de minimis state aid and incorrectly assessed criteria for provision of de minimis (...)

The Greek administrative Court of appeal rules that interest due in the case of recovery of illegal aid constitutes a distinct category of interest which may not be confused or in any way affected by other types of interest or other provisions of national tax law (Heracles)
International Transport Forum
Factual Background: In 1983, Greece adopted Law 1386/1983 for the organization for the financial reconstitution of undertakings. Law 1386/1983 created an organization operating under the name of Business Reconstruction Organisation, whose purpose was to contribute, inter alia, to the social (...)

The German Administrative court of appeal finds that the existence of ongoing proceedings led by the EC Commission according to Art. 88.2 EC prohibits access to documents covered by the freedom of information act (Pflegen und Wohnen Betriebs)
European Commission - DG COMP (Brussels)
,
Maersk (Copenhagen)
Brief description of the facts and legal issues The Hamburg Administrative court of appeal holds that documents on ongoing proceedings do not fall within the scope of the Hamburg Freedom of Information Act setting the law on access to file. The existence of ongoing proceedings before the (...)

A Swedish Court embraces its role as EC state aid law enforcer (Skyways Express / Kristianstad Airport)
General Court of the European Union (Luxembourg)
,
Kreab
Introduction This case is interesting as it is one of the few state aid cases that has been brought before a Swedish court. Although, there will be no final judgment on the case it represents a positive development in the application of EC law at national level, in particular, since the (...)

The Cyprus Commissioner for State aid control authorises an aid scheme aimed at incentivising employers/businesses to design, organise and implement training programmes for their employees, finding that it falls within EC Reg. N° 68/2001 (Training programmes)
International Transport Forum
Factual Background On 16 November 2006 the Human Resource Development Authority of Cyprus notified to the Commissioner for State Aid Control a draft aid scheme, entitled “single-company continuing training Programmes in Cyprus”. The aid aims at incentivising employers/undertakings to design, (...)

A Greek Court rules that a money order issued pursuant to a regulation concerning standard fees paid to farmers participating in an EU Community programme, does not infringe upon Art. 87 EC (Service of Financial Control)
International Transport Forum
Factual Background The Service of Financial Control (Õðçñåóßá Äçìïóéïíïìéêïý ÅëÝã÷ïõ) of the Hellenic Ministry of Rural Development and Food issued a money order for the financial year 2006 concerning the prepayment of an amount of about €550.000 to the operators of agricultural holdings participating in the Community (...)

The Cyprus Commissioner for State aid control authorises an individual aid measure for the subsidisation of a cattle breeding association finding that it falls within EC Reg. N° 1/2004 (Holstein-Friesian)
International Transport Forum
Factual Background On 21 August 2006 the Department of Agriculture of the Ministry of Agriculture, Natural Resources and Environment, notified to the Commissioner for State Aid Control a draft individual aid measure, entitled “aid scheme for the Holstein-Friesian cattle breeder Association”. (...)

The Dutch Court of Appeal finds that failure to notify a State aid measure with the European Commission does not constitute a tortious act of the beneficiary of such aid (Baby Dan)
Hogan Lovells (Amsterdam)
Factual Background Baby Dan A/S (Baby Dan) develops, produces and sells safety equipment for children from the age of 0-5 years. One of the products produced by Baby Dan is a safety stair gate under the name ’Danamic’. Baby Dan’s competitors, De Risse and WeDeKa, produce a similar stair gate (...)

The Amsterdam Court of Appeal refuses to recognise the tortious liability of recipients of State aids that have not been notified to the EC Commission in accordance with Art. 88.3 EC (Baby Dan)
European Commission - DG HR
,
European Court of Justice (Luxembourg)
Court of Appeal of Amsterdam (Gerechtshof Amsterdam), 29 June 2006, Baby Dan A/S v. De Risse, WeDeKa, Bruca Producten B.V. and De Sluis Groep N.V. , Case 829/05 (LJN: AZ1425) Baby Dan is a company which produces security devices for babies, such as stair gates, i.e. gates impeding babies’ (...)

The Cyprus Commissioner for State aid control authorises a Cypriot-Greek research and development cooperation programme finding that it falls within EC Reg. N° 70/2001 (Joint Cooperation Programme)
International Transport Forum
Factual Background On 18 April 2006 the Research Promotion Foundation notified to the Commissioner for State aid control a draft aid scheme, entitled “Joint Cooperation Programme between Cyprus and Greece”. The general objective of the Programme is the promotion of cooperation and networking (...)

The Paris Administrative Court condemned the French State for the anticipated implementation of State aid in breach of Art. 88.3 EC (Salmon Arc-en-Ciel)
Schmitt Avocats
By a decision of 23 January 2006, the Administrative Court of Appeal of Paris condemned the French State for having implemented a measure classified as State aid before the European Commission completes its examination procedure of the compatibility of the measure with the Common Market, in (...)

The French Administrative Court of appeal of Paris rejects a claim for damages brought by the beneficiary of an unlawful State aid (Salmon Arc-en-Ciel)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
Factual Background A Law of 12 April 1996 gives the State the ability to conclude framework agreements with professional branches in the textile, clothing, leather and shoe sector in order to maintain or develop employment in these sectors ("Borotra plan"). The agreements enable the (...)

The Greek Hellenic Conseil d’Etat rules that a legislative provision introduced in compliance with a judgment of the ECJ, ordering the recovery of incompatible aid granted in the form of tax exemptions, does not impinge upon the Greek Constitution, which prohibits the retroactive imposition of taxation (Undertaking X)
International Transport Forum
Factual Background: On 15.03.1988 the Greek Minister of Financial Affairs adopted Decision E. 3789/128, ratified by Law 1796/1988, which introduced a special single tax on the total income of certain undertakings in the financial year 1987. However, the proportion of earnings deriving from (...)

A German Higher Regional Court judges that when dealing with the recovery of unlawful State aid, the provisions on maintenance of capital and insolvency should be considered so long as this does not contravene the rationale of Art. 87.1 EC, and that EC State aid rules do not supersede the claim of a liquidator to recover an unlawful capital-substitutive financial aid that was recovered by the granting authority (Insolvency procedure 3)
European Commission - DG COMP (Brussels)
,
Maersk (Copenhagen)
Brief description of the facts and legal issues The Thuringia Higher Regional Court judges that when dealing with the recovery of unlawful State aid, the provisions of the German laws on maintenance of capital and insolvency should be considered, so long as this does not contravene the (...)

The Cyprus Commissioner for State aid control authorises an aid scheme for small and medium-sized enterprises for the promotion of alternative forms of economic activities in the field of agri-tourism, finding that it falls within EC Reg. N° 70/2001 and 69/2001 ("Small and medium-sized enterprises")
International Transport Forum
Factual Background On 29 March 2005, the Department of Town Planning and Housing of the Ministry of Interior notified to the Commissioner for State aid control a draft aid scheme, entitled “aid scheme for small and medium-sized enterprises for the promotion of alternative forms of economic (...)

The Cyprus Commissioner for State aid control authorises an aid scheme for the provision of access to research infrastructures abroad, finding that it falls within EC Reg. N° 70/2001 ("Research infrastructures abroad")
International Transport Forum
Factual Background: On 24 January 2005, the Research Promotion Foundation notified to the Commissioner for State aid Control a draft scheme, entitled “scheme for the provision of access to research infrastructures abroad”. The scheme is based on the acknowledgment of the essential need that the (...)

The Cyprus Commissioner for State Aid Control authorises an aid scheme aimed mainly at the improvement of working conditions and the reduction of workplace accidents in the construction industry ("Aid scheme for construction companies" )
International Transport Forum
Factual Background On 23 December 2004, the Cyprus Productivity Centre notified to the Commissioner for State Aid Control a draft aid scheme, entitled “aid scheme for construction companies concerning the upgrade of their equipment”. The scheme aims at the improvement of working conditions of (...)

The Cyprus Commissioner for State aid control authorises an aid scheme for the payment of social security contributions to employers and disabled employees finding that it falls within EC Reg. N° 2204/2002 ("Scheme for the payment of social security contributions")
International Transport Forum
Factual Background On 4 January 2005, the Department of Labour of the Ministry of Labour and Social Insurance notified a draft aid scheme to the Commissioner for State aid control, entitled “scheme for the payment of social security contributions to employers and disabled employees”. The scheme (...)

The Cyprus Commissioner for State aid control authorizes an aid scheme aimed at facilitating the recruitment of unemployed persons with a serious disability in the private sector (Scheme for recruitment of disabled persons)
International Transport Forum
Factual background On 4 January 2005, the Department of Labour in the Ministry of Labour and Social Insurance notified a draft aid scheme to the Commissioner for State aid control, entitled “scheme for the provision of incentives regarding the recruitment of persons with a serious disability in (...)

Procedures

The Dutch District Court of Gelderland dismisses a company’s passing-on defence in private enforcement litigation (ABB / TenneT)
Van Bael & Bellis (Brussels)
On 29 March 2017, the District Court of Gelderland (the “Court”) dismissed a passing-on defence put forward by the Swiss technology company ABB in a cartel damages case initiated by the Dutch network grid operator TenneT. TenneT claimed that it had incurred damages as a result of higher prices (...)

The German Parliament implements the EU Antitrust Damages Directive
Cleary Gottlieb Steen & Hamilton (Cologne)
,
Cleary Gottlieb Steen & Hamilton (Cologne)
On March 10, 2017, the German Parliament adopted the 9th amendment to the German Act against Restraints of Competition (“9th Amendment”). While many of the revisions are of a declaratory nature, some changes should make cartel damages actions in Germany more attractive – in particular the new (...)

The UK Parliament implements the EU antitrust damages directive
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
The Damages Directive seeks to promote private enforcement of EU competition law before national courts across the European Union (the “EU”). The UK Regulations implementing the Directive were laid before Parliament on 20 December 2016 but will not come into force until after they have (...)

The EU Commission publishes study on the passing-on of overcharges
Van Bael & Bellis (Brussels)
On 25 October 2016, the European Commission’s Directorate-General for Competition (“DG Comp”) published an expert study on potential approaches for national courts to assess the passing-on of overcharges in competition litigation (“the Study”). The Study aims to provide judges and practitioners (...)

The Administrative Court of Düsseldorf rules on right to access cartel damages proceeding file before labour court (Local transportation company)
Van Bael & Bellis (Brussels)
In a judgment of 7 July 2016, the Administrative Court Düsseldorf (the “Court”) annulled the prior decision of the President of the Higher Labour Court Düsseldorf (the “President”) who had denied a potential cartel victim access to the file of a cartel damages proceeding before the Higher Labour (...)

The Regional Court of Potsdam rules on validity of standard term stipulating fix percentage of cartel damages (Public local transport)
Van Bael & Bellis (Brussels)
In a judgment of 14 April 2016, the Regional Court Potsdam (the “Court”) ruled on the validity of a standard term in a procurement contract stipulating a fix percentage (15%) of damages in case of future follow-on action in relation to a competition law infringement. The claimant, a public local (...)

The UK High Court allows a plaintiff to amend its claim and introduce pleas on the counterfactual which were not originally included in the complaint to the European Commission (Deutsche Bahn / MasterCard)
Blackstone Chambers
Illegal counterfactuals: bringing in new claims by the backdoor?*It is fairly well-established in competition cases that the hypothetical counterfactual – which, for the purposes of causation, posits what the situation would have been absent any breach of competition law – cannot contain unlawful (...)

The UK High Court decides that a standalone claim issued in the High Court could be transferred to the Competition Appeal Tribunal (Sainsbury Supermarkets / MasterCard)
Blackstone Chambers
Standalone claims in the CAT: bypassing the transitional rules* We have written before about the problems inherent in the transitional provisions of the new Consumer Rights Act 2015 (see Tom de la Mare QC’s blog here). A recent decision from Mr Justice Barling in the Mastercard litigation (...)

The Turkish Court of Appeals decides that follow-on actions for damages are subject to a limitation period of eight years starting from the claimant’s application to the Competition Authority (Yargıtay)
University of Sussex
This case note analyses the judgment of the Turkish Court of Appeals in which it has decided that private actions for damages are subject to a limitation period of eight years, which begins when the claimant applies to the Turkish Competition Authority (TCA) prior to bringing a follow-on (...)

The UK Parliament adopts the Consumer Rights Act to boost private enforcement of competition law
Norton Rose Fulbright (London)
,
Norton Rose Fulbright (London)
,
Norton Rose Fulbright (London)
Introduction On 1 October 2015 the Consumer Rights Act 2015 entered into force. This reforms and consolidates consumer protection laws in the UK but also - significantly from a litigation perspective - provides a mechanism for a form of “class action” to be brought for the first time in the UK. (...)

The UK Parliament adopts the Consumer Rights Act to boost private enforcement of competition law
Norton Rose Fulbright (London)
,
Norton Rose Fulbright (London)
Introduction The Consumer Rights Act 2015 (the Act) will enter into force on October 1, 2015. It contains some significant reforms which aim to boost private enforcement of competition law in England and Wales and will increase the exposure of companies found to have infringed competition law (...)

The UK Parliament introduces reforms to facilitate private actions in antitrust cases
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
UK Introduces Reforms to Facilitate Private Actions in Antitrust Cases From October 1, 2015, new rules will make it easier for claimants to pursue antitrust damages claims in the UK. These reforms, introduced under the Consumer Rights Act 2015 (the “Act”), are the final piece of the Government’s (...)

The UK Parliament implements a new regime issued from the Consumer Right Act extending the powers of the Competition Appeal Tribunal
Blackstone Chambers
Private Actions: The CRA 2015 giveth; and the 2015 CAT Rules taketh away Introduction* Today, on the 1st October 2015, when we are supposed to be celebrating the brave new world of the Competition Act 1998 (“CA”) as amended by the Consumer Rights Act 2015 (“CRA”), cartelists and other competition (...)

The UK Secretary of State issues regulations and guidance governing approval of voluntary redress schemes to compensate persons injured by antitrust infringements
Simmons & Simmons (London)
,
Simmons & Simmons (London)
On 05 August 2015, the UK Secretary of State issued the Competition Act 1998 (Redress Scheme) Regulations 2015 governing the approval of voluntary redress schemes under the Act. One of the radical elements of the UK’s package of 2015 collective redress measures takes shape as regulations and (...)