Private enforcement

General antitrust

The Cambodian Parliament enacts its first law on competition
DFDL (Phnom Penh)
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DFDL (Phnom Penh)
On 5 October 2021, the Law on Competition (No.NS/RKM/1021/013) (“Competition Law”) received royal assent on the basis that it should be promulgated urgently. This article will outline the regulatory regime created by the Competition Law, although many details are not yet clear pending appointment (...)

The UK Competition Authority publishes a new Green Claims Code and announces that it will start carrying out a full review of misleading sustainability and environmental claims
White & Case (London)
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White & Case (Brussels)
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White & Case (Brussels)
UK clampdown on greenwashing As the importance of sustainability and eco-friendliness grows among consumers worldwide, the UK Competition and Markets Authority (CMA) has concerns that an increasing number of businesses misleadingly market their products and services as environmentally (...)

The UK Government publishes consultations on far-reaching reforms to competition and consumer laws which would substantially expand the powers of the Competition Authority and reduce procedural protections
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
The U.K. government is consulting on far-reaching reforms to U.K. competition and consumer laws, which would substantially expand the powers of the Competition and Markets Authority (CMA) and reduce procedural protections. Key proposals include: Merger control jurisdiction enlarged: The CMA (...)

The Russian Supreme Court adopts a decree providing clarifications on antitrust matters that arise in court proceedings
Herbert Smith Freehills (Moscow)
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Herbert Smith Freehills (Moscow)
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Herbert Smith Freehills (Brussels)
In March, the Russian Supreme Court adopted a Decree providing clarifications on antitrust matters (the "Plenum Decree") . The Plenum Decree replaced most of the previous antitrust clarifications issued by the Supreme Commercial Court back in 2008. The new measure is comprehensive and covers a (...)

The German Parliament passes the 10th amendment of the German Act against Restraints of Competition
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 19 January 2021, the 10th Amendment of the German Act against Restraints of Competition (“ARC”) entered into force. The 10th Amendment, also referred to as the “Digitalisation Act”, introduces significant changes to German Competition Law. A previous issue of this newsletter (VBB on Competition (...)

The EU Commission publishes a report on the implementation of the Damages Directive finding insufficient application in practice
Bird & Bird (Brussels)
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Strelia (Brussels)
On 14 December 2020, the European Commission published a report on the implementation of Directive 2014/104/EU of the European Parliament and of the Council (“the Damages Directive”). Overall, the Commission is positive about the implementation of the Directive in the Member States, but the (...)

The EU Commission publishes a report on the damages directive
University of Vienna (Vienna)
The Damages Directive 6 years later: the Commission published a report on the 2014 Damages Directive* Ever since the 2001 Courage judgment, private actions for damages are on the rise. The Commission wanted to quickly follow with a legislative act including minimum standards for private (...)

The EU Commission publishes a report on the implementation of the 2014/104/EU Damages Directive
Hausfeld (London)
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Hausfeld (London)
Almost exactly four years after the implementation deadline, the European Commission (the “EC”) has published a short report on 14 December 2020 on the implementation of its Directive 2014/104 (the “Damages Directive”) across the European Union (the “EU”). The primary aim of the Damages Directive (...)

The US State of New York Senate proposes legislation to modernize its antitrust law and expands the State’s and private litigants’ ability to litigate against companies for anti-competitive conduct
Constantine Cannon (New York)
New York Could Lead the Nation Into 21st Century Antitrust Enforcement* New York is on the verge of revamping state antitrust enforcement to tackle competition issues of the 21st Century. On September 14, 2020, the Consumer Protection Committee of the New York State Senate held a virtual (...)

The German Government publishes draft for new competition rules including a provision specifically aimed at powerful digital gatekeepers
Heinz & Zagrosek (Köln)
Draft German competition rules on powerful digital gatekeepers* The government’s draft for new competition rules, including on (digital) platforms, published in September 2020 (see here) includes a provision specifically aimed at powerful digital gatekeepers, draft Section 19a ARC. The (...)

The German Government submits a draft of the digitalisation act amending national competition law
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 9 September 2020, the German Government tabled the draft 10th amendment of the German Act against Restraints of Competition (“ARC”), also referred to as the ARC Digitalisation Act. The draft amendment entails significant changes in the areas of abuse of dominance, merger control, cartel fines (...)

The EU Commission issues a communication setting out specific best practices and recommendations for national courts to protect confidential information in private litigation proceedings
Portolano Cavallo (Milan)
The protection of confidential information is an issue of increasing importance in today’s business relationships, as well as in cases of litigation before the courts. Indeed, the issue not only arises in connection with modern business contracts, where the parties may exchange in real time and (...)

The Italian Government adopts a collective action reform aimed at making collective action proceedings available beyond consumer law
University of Trento (Trento)
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University of Turin (Turin)
Introduction The new Italian collective action regime was adopted by law 12 April 2019, no. 31, but – after a further postponement occurred at the end of 2019 – it is now set to come into force on 19 November 2020. In particular, the remedy will only be available for claims filed after such (...)

The German Federal Ministry for Economic Affairs and Energy issues an update on the reform of national competition law
Court of First Instance of Namur (Namur)
On 24 January 2020, the German Federal Ministry for Economic Affairs and Energy published an update of its draft 10th amendment to the Act against Restraints of Competition (the “ARC”), officially called the “ARC Digitization Act”. Compared to the initial draft (see VBB on Competition Law, Volume (...)

The US State of California becomes the first State to enact legislation rendering certain pharmaceutical patent litigation settlement agreements presumptively anticompetitive
White & Case (Washington)
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Allen & Overy (Palo Alto)
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White & Case (New York)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On October 7, 2019, California became the first state to enact legislation— Assembly Bill 824 (“AB 824”)—rendering certain pharmaceutical patent litigation (...)

The Portuguese Parliament transposes Directive 2014/104/EU by adopting a new legal framework on the right to compensation for damages from infringements of competition law
Vieira de Almeida (Lisbon)
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DLA Piper (Lisbon)
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Vieira de Almeida (Lisbon)
Act 23/2018, establishing the legal framework on the right to compensation for damages from infringements of competition law, was published on 5 June 2018. This legislative act transposes into Portuguese law the Directive 2014/104/EU of the European Parliament and of the Council, of 26 November (...)

Private enforcement: an overview of the leading cases and opinions
Hausfeld (Washington)
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Hausfeld (Berlin)
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Ashurst (London)
Private enforcement in Europe may have taken off later than in the US, but is also flourishing. In particular, 2017 saw the implementation across much of the European Union of the “Damages Directive”, which aims to standardize both substantive and procedural provisions relating to competition law (...)

Anticompetitive practices

The US DoJ secures a fine exceeding $1M and restitution payments of more than $300K in a long-running insulation bid rigging cartel case (Axion Specialty Contracting)
US Department of Justice (Washington DC)
Insulation Contracting Firm Sentenced for Rigging Bids* Third Defendant Sentenced in Investigation in the Insulation Contracting Industry Axion Specialty Contracting LLC (Axion) was sentenced to pay a $1,001,989 criminal fine and $313,121 in restitution on Nov. 4 in Bridgeport, Connecticut, (...)

The US DoJ achieves a guilty plea from a healthcare company that conspired to suppress wages for school nurses (VDA OC)
US Department of Justice (Washington DC)
Health Care Company Pleads Guilty and is Sentenced for Conspiring to Suppress Wages of School Nurses* Company Admits to Criminal Allocation and Wage-Fixing Conspiracy Targeting Nurses Serving a Nevada School District VDA OC LLC (VDA), a health care staffing company, pleaded guilty and was (...)

The UK Competition Appeal Tribunal issues opt-out certification decision in a class action brought against a Big Tech by a consumer advocate (Liz Coll / Google)
Hausfeld (London)
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Hausfeld (London)
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Hausfeld (London)
On 31 August 2022, the Competition Appeal Tribunal released its judgment in Elizabeth Helen Coll v Alphabet Inc. and Others [2022] CAT 39, which confirms that consumer champion Liz Coll is authorised to bring an opt-out collective claim against Google for alleged competition law infringements (...)

The EU Court of Justice rules on the temporal applicability of the cartel damages directive and clarifies the statute of limitation in cartel damages (Volvo / DAF Trucks)
Hausfeld (Berlin)
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Hausfeld (Brussels)
In its latest decision regarding the Trucks cartel the European Court of Justice (“ECJ“) once again clarified statute of limitation issues. Although the decision primarily dealt with the temporal applicability of the 2014 EU Damages Directive, it draws important implications for the (...)

The US District Court for the Northern District of California issues a decision on a decertification order in a long-running class action dispute concerning class-wide damages model (Freitas / Cricket Wireless)
Covington & Burling (Washington)
On July 29, Judge William Alsup of the Northern District of California issued a decertification order in a long-running class action dispute concerning Cricket Wireless’s 4G advertising, ruling that plaintiff’s counsel made “too critical a mistake” in fashioning their class-wide damages model. See (...)

The US DoJ strikes plea deals with two companies which conspired to rig bids on piping and insulation projects in Connecticut (BC Flynn Contracting / Axion Specialty Contracting)
US Department of Justice (Washington DC)
Two Companies Plead Guilty in Bid Rigging Scheme for Insulation Contracts* These are the Sixth and Seventh Defendants to Plead Guilty in this Investigation BC Flynn Contracting Corp. (BC Flynn) and Axion Specialty Contracting LLC (Axion) pleaded guilty yesterday in federal court in (...)

The EU Court of Justice specifies the temporal scope on rules governing carry on damages for competition law infringements as well as the quantification of damages and the rebuttable presumption relating to the existence of a cartel following a decision by the Commission (Volvo / DAF Trucks)
European Court of Justice (Luxembourg)
The Court specifies the temporal scope of the rules governing the limitation period for bringing an action for damages for infringements of competition law and of the rules governing the quantification of the harm resulting from such infringements and the rebuttable presumption relating to the (...)

The EU Court of Justice rules on the temporal applicability of EU law on limitation periods and burden of proof in actions seeking antitrust damages (Volvo / DAF Trucks)
Portolano Cavallo (Milan)
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Portolano Cavallo (Milan)
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Portolano Cavallo (Rome)
On June 22, 2022, the European Court of Justice (hereinafter, the “ECJ”) issued a judgement in Case C-267/20 clarifying the temporal application of certain provisions of Directive 2014/104/EU (the “Directive”), namely Article 10 on limitation periods to claim damages and Article 17 on presumption (...)

The EU Court of Justice provides increased clarity on the temporal scope of the Damages Directive (Volvo / DAF Trucks)
Van Bael & Bellis (Brussels)
On 22 June 2022, the Court of Justice of the European Union (“ECJ”) clarified the temporal application of the Directive 2014/104/EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions (“Damages Directive”) to (...)

The UK Supreme Court gives the go ahead for a follow on damages claim in a vehicle cartel case and rejects a request by another party (Trucks Cartel)
Ashurst (London)
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Ashurst (London)
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Ashurst (London)
On 8 June 2022, the Competition Appeal Tribunal ("CAT") handed down judgment in respect of two applications for collective proceedings (heard jointly) comprising follow-on damages claims arising from the European Commission’s 2016 infringement decision in relation to the Trucks cartel. Key (...)

The UK Competition Appeal Tribunal rules on first ever carriage dispute in UK FX Cartel Class action (Evans / O’Higgins)
Ashurst (London)
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Ashurst (London)
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Ashurst (London)
On 31 March 2022, the Competition Appeal Tribunal (’CAT’) refused to certify two claims advanced against a number of UK banks for their participation in a foreign exchange spot rate manipulation cartel as opt-out collective proceedings. The novel issue before the CAT at the certification hearing (...)

The UK Competition Appeal Tribunal rules that class action proceedings may only be brought on an opt-in basis where the class of potential complainants is sophisticated and thus opt-in is practicable (Evans / O’Higgins)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
The UK Competition Appeal Tribunal (“CAT“) has ruled for the first time that collective proceedings can only proceed on an opt-in basis, rather than the opt-out basis sought by the class applicants. The ruling came in the O’Higgins/Evans case, concerning two competing applications for a Collective (...)

The UK Competition Appeal Tribunal allows planned forex class action against big banks with the proviso that class members must opt-in to the litigation (Evans / O’Higgins)
Hausfeld (London)
London, 31 March 2022 – Today, the Competition Appeal Tribunal (CAT) has handed down its judgment in FX Claim UK, the opt-out collective action brought by Phillip Evans, deciding that the proposed FX collective proceedings can be certified, but on an opt-in basis only. Mr Evans intends to (...)

The Higher Regional Court of Berlin applies market tipping rules for first time and prohibits list-First -rebates offered by leading real estate portal (Immoscout)
Blomstein (Berlin)
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Blomstein (Berlin)
The Higher Regional Court of Berlin (Kammergericht, “KG”) ruled that certain exclusivity rebates – so-called ‘list-first’ rebates – granted by real estate portal Immoscout violate German competition law (Case No. U 4/21 Kart). The Immoscout case was decided on the basis of the so-called ’tipping’ (...)

The UK High Court time-bars a €480M follow-on damages claim against a smart card chip cartel after ruling that the claimants had sufficient information to support a reasonable claim when the EU Commission issued its statement of objections to the defendants (Gemalto / Thales / Infineon / Renesas)
Ashurst (London)
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Ashurst (London)
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Ashurst (London)
The English High Court has ruled that, on the facts of the case, claimants Gemalto had sufficient information about the smart card chips cartel to support a reasonable claim for damages at the point at which the European Commission issued its statement of objections to defendants Infineon and (...)

The Higher Regional Court of Düsseldorf grants an athlete access to the Paralympic Games based on German competition law (International Paralympics Committee)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
1. Introduction In its decision of 20 January 2022, the Higher Regional Court of Düsseldorf (the “Court”) dealt with a case of a professional female snowboarder who sought admission to the 2022 Paralympic Games in Beijing. This admission had previously been denied by the later defendant, which as (...)

The Polish Competition Authority fines 6 truck dealers and 8 managers for concluding agreements that limit competition (Truck Dealer Cartels)
Polish Competition Authority (Warsaw)
Truck dealer cartels - two decisions of the UOKiK President* UOKiK President Tomasz Chróstny issued two decisions concerning agreements limiting competition between truck dealers. Purchasers of these vehicles have not had a free choice of dealer for many years and have paid inflated prices. Six (...)

The Paris Court of Appeal dismisses separate follow-on damages claims by a director and the main shareholder of a company which had previously been granted compensation for losses arising from anticompetitive conduct (Switch / SNCF / Expedia)
Gide Loyrette Nouel (Paris)
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Gide Loyrette Nouel (Paris)
On December 3rd, 2021, the Paris Court of Appeal (the “Court”) confirmed a ruling by the Paris Commercial Court dismissing a damage claim brought by the former executive shareholder of Switch, a defunct online travel agency, against the national French railway company SNCF and online travel (...)

The EU Commission fines multiple banks €344 million for participating in a foreign exchange spot trading cartel (UBS / Barclays / RBS / HSBC / Credit Suisse)
European Commission - DG COMP (Brussels)
Antitrust: Commission fines UBS, Barclays, RBS, HSBC and Credit Suisse €344 million for participating in a Foreign Exchange spot trading cartel* The European Commission has completed its cartel investigation into the Foreign Exchange (‘Forex’) spot trading market by imposing fines on five banks. (...)

The German Competition Authority publishes its guidelines on the premature deletion of an entry in the register for public procurement
German Competition Authority (Bonn)
Competition Register for Public Procurement – Bundeskartellamt publishes guidelines and practical guide on premature deletion of an entry due to self-cleaning* The Bundeskartellamt has today published guidelines on the premature deletion of an entry in the Competition Register and a practical (...)

The EU Court of Justice AG Rantos suggests that claims for damages are not time-barred as national legislation transposing EU directives are procedural and can therefore apply retroactively (Truck Cartel)
Uria Menéndez (Madrid)
AG Rantos: Temporal scope of the Damages Directive, substantive and procedural provisions and limitation periods* Advocate General Rantos delivered his Opinion in a request of a preliminary ruling by a Spanish court (case C-267/20), the Audiencia Provincial of León, the appellate court in a (...)

The Portuguese Competition Court approves a settlement between a consumer protection association and the national land surveyors association based on a class action for damages due to alleged overcharging for surveying services (Ius Omnibus / ANT)
DLA Piper (Lisbon)
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DLA Piper (Lisbon)
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DLA Piper (Lisbon)
Competition law class actions in Portugal: first court-approved settlement* On 20 September 2021, the Portuguese Competition Court approved a settlement between Ius Omnibus, a non-profit consumer protection association, and the National Association of Land Surveyors (ANT), in the context of a (...)

The Hong Kong Competition Tribunal delivers its first judgment in a private enforcement action, rejecting claims of an alleged cartel in the supply of diesel (Shell Hong Kong / Meyer Aluminium)
Linklaters (Hong Kong)
This article has been nominated for the 2022 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The Competition Tribunal has delivered its judgment in the first private competition action in Hong Kong SAR. By rejecting the claims of an alleged cartel in the (...)

The EU Court of Justice issues its judgment concerning the question of whether a subsidiary can be held liable for the anti-competitive behaviour of its parent company (Sumal / Mercedes Benz Trucks España)
Latham & Watkins (Brussels)
Red pill or blue pill? The European Court of Justice makes its choice: subsidiaries can be held liable for the infringements of their parent companies (Case C-882/19 – Sumal)* On 6 October 2021, the European Court of Justice (ECJ) issued its very much-awaited judgment in case C-882/19 Sumal, (...)

The EU Court of Justice issues a long-awaited judgment clarifying the extent of an undertaking’s liability in follow-on actions (Sumal / Mercedes Benz Trucks España)
Portolano Cavallo (Milan)
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Portolano Cavallo (Milan)
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Portolano Cavallo (Milan)
On October 6, 2021, the Grand Chamber of the Court of Justice of the European Union (the “ECJ” or “Court”) issued a long-awaited decision in case C-882/19, Sumal SL (“Sumal”) v Mercedes Benz Trucks España SL (“MBTE”). The judgment shed light on whether, under EU competition law, the victim of an (...)

The EU Court of Justice endorses downward liability by deciding that parties harmed by anticompetitive conduct may claim damages directly against subsidiary companies (Sumal / Mercedes Benz Trucks España)
Callol, Coca & Asociados (Madrid)
The Judgment of the European Union Court of Justice (CJEU) of 6 October 2021, Sumal, case C-882/19, addresses a request for a preliminary ruling from the provincial court of Barcelona in late 2019. The court is addressing the appeal brought by Sumal after the first instance court had dismissed (...)

The US State of California Superior Court for the County of Contra Costa awards $15 million in damages, plus attorney fees, to a cannabis company following a string of anticompetitive practices from its competitors (Richmond Compassionate Care Collective / Koziol)
Constantine Cannon (New York)
Budding Antitrust Activity in the Cannabis Industry: Lessons from Richmond Compassionate Care Collective v. Koziol* As the cannabis industry continues to blossom from the backwoods into a multi-billion dollar bonanza, the antitrust spotlight is poised to increasingly shine on the industry’s (...)

The US District Court for the Southern District of Florida rules that corporate-competitor plaintiffs may recover lost profits under the Florida Deceptive and Unfair Trade Practices Act (Tymar Distribution / Mitchell Group)
Jones Day (Miami)
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Winston & Strawn (Dallas)
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Jones Day (Miami)
Southern District of Florida Finds Lost Profits Recoverable for Corporate-Competitor Plaintiffs Under FDUTPA The Chief Judge of the Southern District of Florida has ruled that corporate-competitor plaintiffs may recover lost profits under the Florida Deceptive and Unfair Trade Practices Act (...)

The UK Competition Appeal Tribunal certifies the first competition class action on behalf of 46 million consumers who suffered loss as a result of anti-competitive interchange fees imposed by a payment company between 1992 and 2008 (Merricks / MasterCard)
Ashurst (London)
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Ashurst (London)
On 18 August 2021, the UK’s Competition Appeal Tribunal ("CAT") certified the application by Mr Walter Merricks CBE to bring an opt-out class action on behalf of 46 million UK consumers who suffered loss as a result of anticompetitive interchange fees imposed by Mastercard between 1992 and 2008. (...)

The US FTC withdraws from the remaining case against a pharmaceutical company after the Supreme Court decides to strip consumers of relief (AbbVie / Allergan)
US Federal Trade Commission (FTC) (Washington)
Federal Trade Commission Withdraws Remaining Case against AbbVie after Supreme Court Decision Strips Consumers of Relief* After the Supreme Court declined to review a ruling from the Third Circuit that AbbVie used sham litigation to illegally maintain a monopoly, the Federal Trade Commission (...)

The Amsterdam District Court issues a judgment which establishes the liability of cartelists in the heavy trucks industry for gross price coordination (Trucks Cartel)
Bird & Bird (The Hague)
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Bird & Bird (The Hague)
This article has been nominated for the 2022 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In this latest instalment of the Trucks Cartel saga, the Amsterdam District Court (“District Court”) refutes the cartelists’ arguments by ruling that the issue of (...)

The Paris Court of Appeal refuses to cancel an alleged anticompetitive purchase price agreement between social landlords on account of absence of anticompetitive effect (Fédération des promoteurs immobiliers des Alpes/Pluralis)
Nest Avocats (Paris)
The Paris Court of Appeal confirmed a judgment of the Lyon Civil Court and dismissed FEDERATION DES PROMOTEURS IMMOBILIERS DES ALPES (Federation of real estate developers in the Alps) and SARL PATRICK GAILLARD ET ASSOCIÉS (a real estate developer) claims. The claimants ask the Court to state (...)

The Rotterdam District Court establishes joint and several liability for damages from the elevators cartel case but declares part of the claim time-barred (Otis / Kone / Schindler / ThyssenKrupp)
Bird & Bird (The Hague)
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Bird & Bird (The Hague)
Summary On 23 June 2021, the District Court of Rotterdam (“District Court”) held that a so-called special purpose vehicle, was eligible as a claimant for part of the cartel damages it had claimed. The claimant Stichting Elevator Cartel Claim (“SECC”), represented many customers who had suffered (...)

The Swedish Patent and Market Court of Appeal rejects damages claim by mobile phone subscriptions company against its mobile network supplier and wholesaler because concurrence of wills was not proven (Telesport / TeliaSonera Mobile Networks / Svea Billing Services)
Stockholm University
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Delphi (Stockholm)
SUMMARY The case relates to a stand-alone claim for damages brought by Telesport AB (Telesport) against TeliaSonera Mobile Networks AB (Telia) and Svea Billing Services AB (Svea Billing). Telesport claimed that the two defendants had entered into an anticompetitive agreement or engaged in a (...)

The EU Court of Justice upholds the General Court’s ruling on the EU Commission’s duty to pay default interest on reimbursed fines (Printeos)
Ashurst (Brussels)
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Ashurst (Brussels)
On 20 January 2021 the European Court of Justice ("ECJ") upheld the General Court’s ruling on the European Commission’s duty to pay default interest on reimbursed fines as a form of restitutio in integrum, clarifying the rate to be applied and that late payment of interest will itself incur (...)

The EU Court of Justice makes a clear distinction between a cartel’s restrictive effects on competition and its damaging effects (Kilpailu- ja kuluttajavirasto)
European Commission - DG COMP (Brussels)
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CDC Cartel Damage Claims (Brussels)
By judgement on the 14th of January 2021 in Case C-450/19, Kilpailu- ja kuluttajavirasto (‘Judgment’), the Court of Justice of the European Union (‘CJEU’) stated that an infringement of Art. 101 TFEU in bid-rigging cases ends with the conclusion of the works, goods or services contract. To reach (...)

The Paris Court of Appeal finds a significant imbalance in the long-term contractual relationship of the French incumbent parcel delivery operator and one of its clients (La Poste / Central Optics)
University Paris Saclay
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University Paris Saclay
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University Paris Saclay
Introduction In its ruling of the 7th January 2021, the Paris Court of Appeal applied the concept of "significant imbalance" in its anterior version now contained in Article L442-1 of the french commercial code. The notion of significant imbalance originates in consumer law and was extended to (...)

The Spanish Second-Instance Court reduces the overcharge in an appeal against a judgment awarding damages in the context of a follow-on action deriving from the EU Commission’s decision to fine a cartel of trucks manufacturers (Iveco / Trucks cartel)
Ashurst (Madrid)
On 18 December 2020, a Spanish second-instance court (Audiencia Provincial de Asturias, "APA") issued a ruling partially endorsing an appeal brought by IVECO S.a.P. ("IVECO") against a judgment awarding damages to one of its customers in the context of a follow-on action deriving from the EU (...)

The German Regional Court in Bonn dismisses plant protection wholesaler’s action to establish the Competition Authority’s liability (BayWa)
German Competition Authority (Bonn)
BayWa’s legal action to establish Bundeskartellamt’s liability dismissed* The action brought by BayWa AG, Munich, against the Bundeskartellamt to establish the authority’s liability was dismissed in full by the Regional Court in Bonn today (case no. 1 O 201/20). BayWa had filed a claim for (...)

The German Regional Court of Bonn dismisses a pesticide producer’s claim for state liability against the Competition Authority (BayWa)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 2 December 2020, the Regional Court of Bonn (“Court”) dismissed a claim of € 72.8 million by crop protection producer BayWa against the German Federal Cartel Office (“FCO”). BayWa argued that the FCO had violated its procedural rights, in particular the principle of equal treatment, in the (...)

The US District Court for the District of Delaware contradicts the Supreme Court precedent regarding patent settlements in the pharmaceutical sector (Chimicles Schwartz Kriner / Donaldson-Smith / Amgen / Teva / Watson / Actavis)
White & Case (New York)
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White & Case (Washington)
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White & Case (Washington)
A Nov. 30 decision by the U.S. District Court for the District of Delaware, In re: Sensipar Antitrust Litigation, contradicts controlling U.S. Supreme Court precedent and, if followed, could have significant implications for patent settlements well outside the pharmaceutical context in which it (...)

The Dutch Competition Authority allows insurers to introduce a joint scheme for handling vehicle-damage claims
Netherlands Authority for Consumers & Markets (ACM) (The Hague)
ACM: insurers are allowed to introduce joint scheme for handling vehicle-damage claims* Insurers in the Netherlands are allowed to introduce a scheme that will enable them to handle cases involving damage to vehicles in a faster and more simplified manner. Currently, consumers that have (...)

The Russian Competition Authority forcibly returns the equivalent of €14 million into the state budget from former Mayor of Vladivostok, his family, and affiliated companies found guilty of collusion in the auctions for construction materials and supply of medicines (Igor Pushkaryov / MUE Roads of Vladivostok)
Russian Federal Antimonopoly Service (Moscow)
More Than 2.3 Billion Rubles of Illegal Income Was Returned to the State Budget* The funds were obtained as a result of collusions at auctions for the purchase of construction materials (1.4 billion rubles) and the supply of medicines and medical devices (900 million rubles) On October 20, (...)

The Romanian Government publishes an ordinance on actions for damages providing that cartel infringements are presumed to cause an overcharge of 20%
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 16 October 2020, the Romanian government published Ordinance No. 170/2020 on actions for damages in cases of violation of the competition law provisions and modifying and supplementing Romanian Competition Law No. 21/1996 (the “Ordinance”). The Ordinance provides that cartel infringements are (...)

The Regional Court of Dortmund estimates a cartel overcharge of at least 15% in the rail sector without involving any court-appointed economic experts (Rail cartel)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
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Hogan Lovells (Dusseldorf)
1. Introduction Determining the overcharge and, with that, the amount of cartel damages potentially suffered, is considered one of the most difficult aspects of cartel damages litigation in practice. The District Court of Dortmund (the “District Court”), known for its bold and innovative case (...)

The German District Court of Dortmund implements the Kühnen approach to private enforcement in practice and estimates the cartel overcharge to be at least 15% for a rail sector cartel (Rail Cartel)
Spieker & Jaeger (Dortmund)
The esteemed (former) chief judge of the First Senate of the Düsseldorf Higher Regional Court (‘Oberlandesgericht’), Jürgen Kühnen, in 2019 provided ample arguments for an estimation of damages in Private Law. The District Court (‘Landgericht’) of Dortmund implemented Kühnen’s approach in practice. (...)

The Regional Court of Dortmund quantifies cartel damage without consulting time and cost consuming court-approved experts (Rail cartel)
Bird & Bird (Dusseldorf)
The Regional Court of Dortmund is the first German court quantifying a cartel damage claim by estimating the amount of damage on the basis of § 287 of the Code of Civil Procedure of Germany. In contrast to the previous cases, the court quantified the damage amount without consulting time and (...)

The German Federal Court of Justice rules on a damages claim following a Commission decision sanctioning a cartel of truck manufacturers (Trucks cartel)
Ashurst (Munich)
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Ashurst (Frankfurt)
In a decision of 23 September 2020, published early January 2021, the German Federal Court of Justice ("BGH") rejected a follow-on damages claim filed against Daimler in relation to the European Commission’s ("Commission") Trucks decision. This is the first time that the highest German civil (...)

The Dutch District Court of Noord-Nederland holds a former director personally liable for the North Sea shrimps cartel (Gerard Willem Breuker)
Bird & Bird (The Hague)
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Bird & Bird (The Hague)
Introduction On 23 September 2020 a former director of one of the North Sea shrimps cartelists was held personally liable for damage of over € 13 million by the Dutch District Court of Noord-Nederland (“Court”). According to the Court, the director’s personal involvement in the cartel qualified as (...)

The UK Supreme Court issues its ruling in a standard essential patent litigation and clarifies Courts’ approach to FRAND disputes (Unwired Planet / Huawei)
Cleary Gottlieb Steen & Hamilton
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Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
On 26 August 2020, the UK Supreme Court issued its judgment in a standard-essential patent (SEP) dispute between Huawei and Unwired Planet (see full alert memorandum). Unwired Planet is a patent assertion entity that acquires and licenses patents. In 2013, it acquired telecoms patents from (...)

The UK Supreme Court hands down a judgment involving a software and a telecommunications company, providing answers to questions concerning the English Courts’ approach to FRAND disputes (Unwired Planet / Huawei)
Hogan Lovells (London)
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Hogan Lovells (London)
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Hogan Lovells (London)
The UK Supreme Court has handed down its long-awaited judgment in the Unwired Planet v Huawei and Conversant v Huawei & ZTE proceedings ([2020] UKSC 37), providing answers on several key questions concerning the English Courts’ approach to FRAND disputes. In a unanimous judgment, the (...)

The UK Supreme Court confirms that it is possible to set global FRAND rates and global licences to portfolios of standard-essential patents (Unwired Planet / Huawei)
Baker Botts (Brussels)
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Baker Botts (Brussels)
The U.K. Supreme Court’s 26 August ruling on standard-essential patents (SEPs) is the latest in a series of recent decisions that are likely to have a profound effect on FRAND license negotiations across the globe, in particular for the next generation 4G and 5G mobile telecommunication (...)

The UK Supreme Court confirms that English courts may set the terms of global licences to portfolios of standard essential patents (Unwired Planet / Huawei)
Bristows (London)
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Bristows (London)
English courts given green light to set terms of global FRAND licences* On 26 August 2020, the UK Supreme Court (UKSC) gave its eagerly awaited judgment in Unwired Planet v Huawei and Conversant v Huawei & ZTE. In a unanimous policy-driven decision, the Court dismissed the appeals brought (...)

The UK Competition Authority fines 3 pharmaceutical companies £2.3 million for having an anti-competitive agreement in the supply of the life-saving drug fludrocortisone and secures £8 million in damages for the National Health Service (Aspen / Amilco / Tiofarma)
United Kingdom’s Competition Authority (CMA) (London)
CMA levies fines of £2.3m and secures £8m for NHS in pharma probe* The CMA has formally concluded that 3 pharmaceutical companies took part in an illegal arrangement in relation to the supply of life-saving medicine. The investigation by the Competition and Markets Authority into the supply of (...)

The German Lower Regional Court of Dortmund hands down a judgment regarding follow-on damages against a wholesale company for sanitary and heating products (Sanitary and heating cartel)
Ashurst (Frankfurt)
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Ashurst (Frankfurt)
On 8 July 2020, The German Lower Regional Court of Dortmund ("Court") recently handed down its ruling regarding follow-on damages against a specialist wholesale company for sanitary and heating products. Damages were sought following a fine of the German Federal Cartel Office ("FCO") relating (...)

The UK Supreme Court dismisses an appeal concerning the two largest payment processing networks on the basis that their multilateral interchange fees restricted competition (Sainsbury’s / Visa / MasterCard)
Van Bael & Bellis (Brussels)
On 17 June 2020, the UK Supreme Court dismissed Mastercard and Visa’s appeal against a 2018 ruling by the Court of Appeal of England and Wales and ruled that their multilateral interchange fees (“MIFs”) unlawfully restricted competition. The Supreme Court’s ruling potentially exposes Mastercard and (...)

The UK Supreme Court gives an important judgment in the litigation regarding two payment platform providers’ interchange fees (Sainsburys / Visa / Mastercard)
Shearman & Sterling (London)
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Shearman & Sterling (London)
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Shearman & Sterling (Brussels)
Introduction The U.K. Supreme Court has handed victory to a group of British retailers (the “respondents”) in a long-running dispute with Mastercard and Visa Europe (the “appellants”) finding that the default “multilateral interchange fees” (MIFs) set by Mastercard and Visa and charged by (...)

The UK Supreme Court hands down its judgment on appeal relating to competition damage claims brought by retailers against two payment platform providers (Sainsbury’s / Visa / Mastercard)
Frontier Economics (London)
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Frontier Economics (London)
This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The UK Supreme Court recently handed down its judgment on appeals relating to competition damages claims brought by Sainsbury’s and other retailers against (...)

The UK Supreme Court dismisses the two largest payment processing networks’ arguments on the basis that their multilateral interchange fees restricted competition but upholds grounds of appeal concerning the application of the “passing on” defense (Sainsbury’s / Visa / MasterCard)
Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton
On 17 June 2020, the Supreme Court handed down a much anticipated judgment concerning the default multilateral interchange fees (MIFs) set by Mastercard and Visa (together, the Appellants). The case considered appeals relating to three separate damages actions brought by retailers against the (...)

The UK Supreme Court finds a competition law infringement caused by payment card schemes used in supermarkets (Sainsbury’s / Visa & MasterCard)
Hausfeld (London)
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Hausfeld (London)
The UK Supreme Court recently handed down its eagerly anticipated Judgment in respect of unlawful interchange fee claims against MasterCard and VISA, following almost a decade of litigation. The Judgment provides welcome clarity to merchant retailers as to the unlawfulness of MasterCard’s and (...)

The Paris Court of Appeal rejects an appeal against a follow-on damages claim by a rival telecommunications provider and grants a reduction in the amount of damages to be paid (Orange / Digicel)
Court of First Instance of Namur (Namur)
On 17 June 2020, the Paris Court of Appeal rejected Orange’s (formerly known as France Telecom) appeal against a follow-on damages claim by rival telecommunications provider Digicel (formerly known as Bouygues Telecom) but granted a reduction in the amount of damages to be paid of nearly € 100 (...)

The Paris Court of Appeal hands down an important judgment in a follow-on damages claim for the consequences of abusive practices in the telecommunications market (Orange / Digicel)
University Paris-Panthéon-Assas
On June 17, 2020, the Paris Court of Appeal handed down an important decision in the Digicel / Orange case. Digicel has indeed initiated an action to be compensated for the consequences of the abusive practices implemented in the Antilles-Guyana zone by Orange-Caraïbe and Orange between 2000 and (...)

The UK Supreme Court confirms that two payment platform providers’ fees restricted competition (Visa / MasterCard)
Slaughter and May (London)
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Slaughter and May (Brussels)
This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 17 June 2020, the Supreme Court unanimously upheld an earlier Court of Appeal ruling that Mastercard and Visa’s multilateral interchange fees (MIFs) restricted (...)

The Paris Court of Appeal provides guidance in the context of an action for damages related to anti-competitive practices in the telecommunications sector (Orange Caraïbe / Digicel)
CDC Cartel Damage Claims (Brussels)
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CDC Cartel Damage Claims (Brussels)
On 17 June 2020, the Paris Court of Appeal (Court) delivered its judgment (Orange judgment) in which it ordered Orange to pay EUR 249.5 million (EUR 181.5 million in damages plus EUR 68 million in interest) to Digicel Antilles and Guyana, following the implementation by the former of a number (...)

The UK Supreme Court finds that payment card schemes used in supermarkets infringe competition law (Sainsbury’s / Visa / MasterCard)
Morgan Lewis (London)
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Morgan Lewis (London)
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Morgan Lewis (London)
On June 17, 2020, the UK Supreme Court handed down its judgment in the appeals on the lawfulness of multilateral interchange fees, or swipe fees, (MIFs) in Sainsbury’s Supermarkets Ltd (Respondent) v. Visa Europe Services LLC and Others (Appellants) and Sainsbury’s Supermarkets Ltd and Others (...)

The EU Court of Justice receives a request for a preliminary ruling from the Léon Court of Appeal on the temporal application of the Damages Directive provisions on limitation and quantification of harm (Volvo / DAF Trucks)
CDC Cartel Damage Claims (Brussels)
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European Commission - DG COMP (Brussels)
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CDC Cartel Damage Claims (Brussels)
In the aftermath of Directive 2014/104/EU (Directive), Spain appears to be one of the most active jurisdictions dealing with antitrust damages cases. In particular, a multitude of Spanish courts have been seized with actions for compensation in relation to the European Trucks Cartel (Case (...)

A Spanish Regional Court requests a preliminary ruling on the possibility of the retroactive application of the provisions concerning the period of limitation to bring damages actions (Volvo / Trucks)
Ecija & Asociados (Madrid)
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Bird & Bird (Madrid)
The application of the transitional regime of the Damages Directive (No. 2014/104), of 26 November 2014, has created legal uncertainty regarding the statute of limitations of damages claims. On 12 June 2020, the Regional Court of León referred questions to the European Court of Justice (ECJ) (...)

The US Court of Appeals for the Third Circuit overturns a district court decision certifying a class of direct purchaser plaintiffs without undertaking a rigorous analysis to resolve factual disputes, assess competing evidence, or weigh conflicting expert testimony (Lamictal)
McDermott Will & Emery (New York)
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Crowell & Moring (Washington)
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McDermott Will & Emery (Chicago)
The US Court of Appeals for the Third Circuit recently concluded in In re Lamictal Direct Purchaser Antitrust Litigation that a district court’s reliance on average prices to determine class-wide impact was insufficient. Instead, courts must conduct a rigorous analysis of the facts, evidence and (...)

The US Court of Appeals for the Seventh Circuit clarifies whether a consumer who purchases from a distributor may hold a manufacturer liable for overcharges resulting from a conspiracy between the distributor and manufacturer in the passing on of a case between two healthcare providers (Marion Healthcare / Becton Dickinson & Company)
Freshfields Bruckhaus Deringer (New York)
Introduction In its recent decision in Marion Healthcare, LLC v. Becton Dickinson & Co., the Seventh Circuit added to the discussion among circuit courts as to whether and when a consumer who purchases from a distributor may hold a manufacturer liable for overcharges resulting from a (...)

The UK Court of Appeal upholds the ruling of the Competition Appeal Tribunal in its schemes governing suppliers’ access to its infrastructure (Network Rail / RISQS)
Ashurst (London)
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ADNOC Group (Abu Dhabi)
The Court of Appeal on 5 March 2020 handed down a judgment upholding the ruling of the Competition Appeal Tribunal ("CAT") of July 2019 which found Network Rail had infringed the Chapter I and II prohibitions of the Competition Act 1998 by requiring, in its schemes governing suppliers’ access to (...)

The US Court of Appeals for the Seventh Circuit rules on the co-conspirator exception to the Illinois Brick rule against distributors in the healthcare market (Marion Healthcare / Becton Dickinson & Company)
Bona Law (San Diego)
The Seventh Circuit Explains the “Co-Conspiracy Exception” to the Illinois Brick Rule in Healthcare Antitrust Lawsuit* Antitrust law evolves in such a way that opinions from federal appellate courts are always interesting in how they affect the doctrine. But there are a select few judges who (...)

The UK Competition Appeal Tribunal rules on which part of the EU Commission’s settlement decision is binding on a defendant and that it is an abuse of process for defendants to deny in follow-on damages claims the findings that are contained in settlements (Trucks Cartel)
Hausfeld (London)
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Hausfeld (London)
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Ashurst (London)
In an important judgment for follow- on damages claims, the Competition Appeal Tribunal has ruled that a number of findings made by the European Commission in its Trucks ‘settlement’ Decision are binding on the defendants and the Tribunal; and that, subject to limited exceptions, it is an abuse (...)

The UK Competition Authority closes its pharma probe by fining 4 companies more than £3.4 million and requiring a payment of £1 million directly to the NHS for breaches of competition law in relation to the supply of an antidepressant (King Pharmaceuticals / Accord-UK / Lexon / Alissa Healthcare Research)
United Kingdom’s Competition Authority (CMA) (London)
Over £3m in fines and £1m for NHS in CMA pharma probe* Following an investigation, the CMA has found that 4 pharmaceutical companies broke competition law in relation to the supply of an antidepressant. The probe by the Competition and Markets Authority (CMA) into the supply of nortriptyline, a (...)

The Spanish Provincial Court of Pontevedra reduces the amount of damages received by an individual for the acquisition of a truck when the trucks cartel was in place (Man Truck & Bus Iberia / Trucks Cartel)
Herbert Smith Freehills (Madrid)
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Herbert Smith Freehills (Madrid)
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Herbert Smith Freehills (Madrid)
The Provincial Court of Pontevedra, Spain (Provincial Court) reduced the amount of damages received by an individual for the acquisition of a truck from one of the companies sanctioned by the European Commission’s decision in case AT.39824 -Trucks (EC Decision) when that cartel was in place (...)

The German Federal Court of Justice clarifies the requirements for establishing the necessary causality between anticompetitive behaviour and damages allegedly suffered by claimants (Schienenkartell II)
Ashurst (Frankfurt)
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Ashurst (Frankfurt)
On 28 January 2020, the German Federal Court of Justice ("FCJ"), handed down another highly relevant decision in the field of cartel damages, which has been published on 16 March 2020 (case KZR 24/17). In its decision the FCJ deals with the respective requirements regarding the condition of (...)

The German Federal Court of Justice provides guidance on the requirements for establishing liability and the assessment of evidence in cartel damages cases (Schienenkartell II)
Freshfields Bruckhaus Deringer (Berlin)
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European Court of Justice (Luxembourg)
In its judgment of 28 January 2020, the Cartel Senate of the German Federal Court of Justice provided new guidance on the requirements for establishing liability and the assessment of evidence in cartel damages cases. In the initial proceedings, the plaintiff, a local transport company, sought (...)

The Madrid Commercial Court requests a preliminary ruling from the EU Court of Justice concerning the international competence of the court which was contested by defendants (RH / AB Volvo)
CDC Cartel Damage Claims (Brussels)
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European Commission - DG COMP (Brussels)
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3C Compliance (Madrid)
Choice of forum delicti in EU-wide cartel damages cases (C-30/20, RH vs Volvo) Does Art. 7(2) Brussels I bis determine territorial jurisdiction within the EU Member States, Madrid Commercial Court asks EU Court of Justice. The request for a preliminary ruling from the Madrid Commercial Court (...)

The Paris Commercial Court grants interim measures to a large food retailer by requiring that one of its suppliers of non-alcoholic beverages resume its deliveries (Intermarché / Coca-Cola)
BCTG Avocats (Paris)
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BCTG Avocats (Paris)
Following the Coca Cola European Partners’ decision (hereinafter ’Coca-Cola’) to stop delivering its products to ITM Alimentaire International (hereinafter ’ITM’), ITM applied for interim measures before the Paris Commercial Court (hereinafter the “Court”) in early 2020. On January 16th, 2020, the (...)

The EU Court of Justice rules that a public body indirectly affected by a cartel can claim compensation for losses resulting from an antitrust infringement (Otis)
Court of First Instance of Namur (Namur)
On 12 December 2019, the Court of Justice of the European Union (“ECJ”) delivered a judgment on a request for a preliminary ruling from the Austrian Supreme Court (C-435/18, Otis and Others v. Land Oberösterreich and Others). The request was made in the context of a compensation claim brought by (...)

The EU Court of Justice clarifies that a public body granting promotional loans to the purchaser of products covered by a cartel is entitled to claim damages for loss caused by the cartel (Otis / Land Oberösterreich)
Ashurst (Brussels)
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ADNOC Group (Abu Dhabi)
On 12 December 2019, the European Court of Justice ("ECJ") provided important clarification, holding that Article 101 TFEU must be interpreted as meaning that a public body which granted promotional loans to purchasers of products covered by a cartel are entitled to claim damages for loss (...)

The Dutch Court of Appeal finds a subsidiary liable for the cartel damage caused by a minority shareholder that had or could have a decisive influence over it (Cogelex)
Maastricht University
In a decision of 26 November 2019, the Court of Appeal Arnhem-Leeuwarden deduced from the Court of Justice’s decision in Skanska that the EU concept undertaking is to be used to determine the entity which is required to provide compensation for damage caused by an infringement of Article 101 (...)

The Dutch Court of Appeal applies a rationale of the EU Court of Justice and finds a subsidiary liable for damages resulting from an EU competition law infringement committed by its parent company whilst engaging in a cartel (Cogelex)
Leiden University - Faculty of Governance and Global Affairs
Introduction In its interim judgement of 26 November 2019 (‘interim judgement’) the Dutch Court of Appeal Arnhem-Le euwarden (‘Court of Appeal’) applied the rationale of the Court of Justice of the European Union (‘CJEU’) in Skanska to rule that Cogelex (a subsidiary) and Alstom Holdings (its parent (...)

The Dutch Court of Appeal in Arnhem-Leeuwarden applies the EU competition law notion of an undertaking in a cartel damages claim procedure (GIS Cartel)
KPN (Amsterdam)
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Bird & Bird (The Hague)
On 26 November 2019 the Court of Appeal of Arnhem ("Court of Appeal") applied the EU competition law notion of an ‘undertaking’ in a cartel damage claim procedure between TenneT and entities belonging to the Alstom group of companies. The Court of Appeal ruled that one of these entities formed a (...)

The UK Court of Appeal hands down a follow-on damages claim against a power cable cartel member (BritNed / ABB)
KPN (Amsterdam)
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Bird & Bird (London)
On 31 October 2019, the Court of Appeal of England and Wales ("Court") handed down a significant judgment in relation to BritNed’s follow-on damages claim against a power cable cartel member, ABB. The Court allowed ABB’s cross-appeal in relation to cartel savings, finding that the High Court of (...)

The UK Court of Appeal clarifies principles governing competition damages and reiterates that judges must base their decisions on the evidence before them by exclusively focusing on the loss of the claimant (BritNed / ABB)
University of Buckingham
The Court of Appeal in BritNed v ABB [2019] EWCA Civ 1840 has again had to clarify the principles governing competition damages. It reaffirmed the English High Court’s rejection of the claimant’s approach to damages but took issue with the trial judge’s position that damages should err on the side (...)

The UK Court of Appeal slashes a cartel follow-on damages award and emphasises claimants’ burden to prove losses in a claim brought by power cable manufacturers for market-sharing and customer allocating (BritNed / ABB)
Ashurst (London)
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Ashurst (London)
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Ashurst (London)
BritNed Development Limited ("BritNed") brought a claim against ABB arising from the European Commission’s 2014 power cables cartel decision. In October 2018, the High Court found that there had been no overcharge but awarded damages for "baked-in inefficiencies" and "cartel savings" plus simple (...)

The UK Competition Appeal Tribunal adopts a practical approach to the realities of collective actions damages due to the Truck cartel decision (Trucks Cartel)
Hausfeld (London)
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Hausfeld (London)
A recent judgment by the UK Competition Appeal Tribunal (the “Tribunal”) in the Trucks collective actions regarding funding and adverse costs arrangements is welcome news for class claimants and undoubtedly positive for the development of the UK’s young collective actions regime. The judgment (...)

The Rotterdam District Court issues an interim judgment in a private enforcement cartel claim in the lifts and escalators market (Kone / ThyssenKrupp)
Bird & Bird (The Hague)
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KPN (Amsterdam)
On 23 October 2019, the District Court of Rotterdam ("District Court") rendered an interim judgement on a private enforcement cartel claim against Kone and ThyssenKrupp. The private enforcement claim follows fines imposed by the European Commission back in 2007 for a lifts and escalators-cartel (...)

The Finnish Supreme Court rules that economic succession is applicable to parent companies with respect to liability for competition damages caused by their acquired companies (Asphalt cartel)
Castrén & Snellman
On 22 October 2019, the Supreme Court issued a significant precedent in a competition damages case based on the so-called asphalt cartel. The Supreme Court had granted the City of Vantaa leave to appeal concerning the question of whether a company that is the sole shareholder in a company (...)

The Italian Supreme Court sheds light on the severance of anticompetitive clauses of a banking personal guarantee contract (De Gregorio / Banca Promos)
Giannino SI (Monserrato)
Introduction Article 2 of the Italian Competition Law no. 287/1990 (ICL), which is equal to Article 101 TFEU, provides that an agreement that restrains competition is void. By its judgment rendered in De Gregorio et al v Banca Promos, the Italian Court of Cassation has considered the reach of (...)

The Canadian Supreme Court expands the scope of potential liability in price-fixing class actions (Pioneer / Godfrey)
Davies Ward Phillips & Vineberg (Toronto)
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Davies Ward Phillips & Vineberg (Toronto)
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Davies Ward Phillips & Vineberg (Toronto)
The Supreme Court of Canada has released its long-awaited decision in two companion appeals that have significant implications for class actions alleging conduct that contravenes the criminal provisions found in Part VI of the Competition Act (Act). In its decision in Pioneer Corporation v (...)

The Shanghai Intellectual Property Court holds that fictitiously increasing the number of views of videos is an act of false propaganda (Feiyi / IQiYi)
Beijing Foreign Studies University
From the perspective of anti-unfair competition law, Feiyi Company fictitiously increased the video visits of IQiYi’s website by technical means - the first case of inflating traffic on video websites in China. In recent years, the excessive pursuit of traffic in the Internet industry has (...)

The Finnish District Court of Helsinki highlights the challenges in quantifying the harm caused by anti-competitive conduct due to predatory pricing in the fresh milk market (Osuuskunta Maitomaa / Osuuskunta Maitokolmio / Valio)
Roschier (Helsinki)
A reality check for quantifying antitrust damages* A recent judgment concerning damages caused by predatory pricing in the Finnish fresh milk market highlighted some of the challenges in quantifying the harm caused by anti-competitive conduct. The follow-on action for damages was based on an (...)

The EU Court of Justice clarifies, in a preliminary ruling concerning an asphalt cartel, who is liable to pay compensation in a damages action arising from article 101 TFEU (Vantaan Kaupunki / Skanska Industrial Solutions)
Lavoielegal (Brussels)
Court of Justice ruling in Skanska: EU competition law concept of ‘undertakings’ and principle of economic continuity to the rescue in civil damages claims* In its preliminary ruling in Skanska Industrial Solutions and Others, the Court of Justice has ruled on the fundamental question of who is (...)

The EU Court of Justice rules that the concept of undertaking and the principle of economic continuity apply in private enforcement cases as in public enforcement proceedings (Vantaan kaupunki / Skanska Industrial Solutions)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
Introduction The European Court of Justice (“ECJ”) issued a landmark decision on 14 March 2019 concerning the application of the concept of “undertaking” and the principle of economic continuity to cartel damages claims. The ECJ ruled in its Skanska judgement that the broad interpretation of the (...)

The EU Court of Justice rules that parent companies cannot use corporate restructuring to circumvent their liability for the damages incurred due to a competition law infringement committed by their subsidiaries where the former continues the economic activities during the dissolvency of the latter (Vantaan / Skanska)
Johns Hopkins Medicine (Baltimore)
BUYERS BEWARE: EU COMPETITION LAW CONCEPT OF "UNDERTAKING" IS APPLICABLE IN ACTIONS FOR DAMAGES AS WELL* In its preliminary ruling procedure under Article 267 of the Treaty on the Functioning of the European Union (“TFEU”), the Court of Justice of the European Union (“the CJEU”) issued a landmark (...)

The EU Court of Justice hands down a judgement in which it ensures that victims of competition law breaches get compensation in the context of an asphalt cartel (Vantaan Kaupunki / Skanska Industrial Solutions)
Hausfeld (London)
On 14 March 2019, the Court of Justice of the European Union (“CJEU”) handed down an important judgment for victims of competition law infringements: ensuring that their fundamental right to compensation for losses caused by such infringements cannot be circumvented by the sale or dissolution of (...)

The EU Court of Justice confirms the application of the principle of economic continuity in private enforcement of a cartel case (Vantaan kaupunki / Skanska Industrial Solutions)
Sérvulo (Lisbon)
The Principle Of Economic Continuity’s Application On Private Enforcement: Case 724/17 Skanska* With two major decisions, March 2019 was an interesting month with regard to the ECJ’s case-law on the private enforcement of competition law: Skanska and Cogeco. This post will comment on the (...)

The EU Court of Justice expands cartel damages liability for corporate parents and successors (Vantaan Kaupunki / Skanska Industrial Solutions)
Jones Day (Brussels)
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Jones Day (Brussels)
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Jones Day (Brussels)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In Short The Development: The European Court of Justice ("ECJ") ruled that parent companies and economic successors can be held liable for damages caused by a (...)

The EU Court of Justice holds that the principles applied in order to determine the relevant entities for liability for fines should also be applied to determine the relevant entities liable for damages under private damages claims (Vantaan kaupunki / Skanska)
Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
In a preliminary ruling request made by the Finnish Supreme Court on the question of the relevant entities liable for damages, the Court of Justice of the EU (CJEU) held that principles applied in order to determine the relevant entities for liability for fines under Articles 101 and 102 TFEU (...)

The EU Court of Justice extends the concept of economic continuity to claims for damages so that entities which have violated competition are subject to sanctions (Vantaan Kaupunki / Skanska Industrial Solutions)
Portolano Cavallo (Milan)
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Portolano Cavallo (Milan)
On March 14, 2019, the Court of Justice of the European Union (CJEU) delivered a landmark judgment in a preliminary referral from the Korkein Oikeus (the Finnish Supreme Court), addressing several pillars of EU competition law (case C-724/17, Vantaa v. Skanska Industrial Solutions and others). (...)

The US District Court for the Middle District of North Carolina alleges that 2 universities violated antitrust laws by agreeing not to permit lateral moves of faculty, pushing 1 university to settle the class action lawsuit (Seaman / Duke University)
Constantine Cannon (Washington)
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Constantine Cannon (New York)
The Middle District of North Carolina No-Poach Class Action: Duke Finally Settles* While Duke University and the University of North Carolina (“UNC”) may be fierce sporting rivals on “Tobacco Road,” their alleged agreement not to compete for medical school faculty demonstrates how easily competing (...)

The EU General Court awards damages to an envelope producer due to the EU Commission’s failure to include default interest when repaying an annulled cartel fine (Printeos)
Court of First Instance of Namur (Namur)
On 12 February 2019, the EU General Court (“GC”) awarded € 184,592.95 in damages to envelopes producer Printeos in view of the European Commission’s failure to pay default interest when repaying a cartel fine which had previously been annulled by the GC. In 2014, following a settlement procedure, (...)

The Dutch Court of Appeal dismisses claimant’s appeal in follow-on cartel damages claim in relation to the elevators and escalators cartel (East West Debt)
Simmons & Simmons (Amsterdam)
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Greenberg Traurig (Amsterdam)
Introduction In 2007, the EC imposed fines on several international elevators and escalators (hereafter: “lift”) companies for a violation of Article 81 of the EC Treaty (now Article 101 TFEU). Following the EC decision, follow-on claims have been launched in both Belgium and in the Netherlands. (...)

The German Federal Court of Justice decides that in a quota-fixing and customer-assigning cartel the prerequisites for prima facie evidence to establish whether the cartel has inflicted damage and whether it has affected individual orders are not fulfilled (Rail cartel)
Noerr (Berlin)
German Federal Court of Justice: no double prima facie evidence in cartel damages litigation* In a landmark ruling dated 11 December 2018 (KZR 26/17 – “rail cartel”), the German Federal Court of Justice decided that, in a quota-fixing and customer-assigning cartel, the prerequisites for prima (...)

The US District Court for the Southern District of Florida receives an antitrust claim against Bitcoin companies concerning alleged coordination to restrain trade (United American Corp / Bitmain)
Constantine Cannon (New York)
The First Blockchain Antitrust Case. Or Is It?* Legal professionals paying close attention to the still nascent world of blockchains and cyptocurrencies are following what is considered to be the first antitrust case involving cryptocurrencies. For enthusiasts, United American Corp. v. (...)

The UK High Court of Justice rejects methodology for estimating overcharges on cables based on economic evidence (BritNed / ABB)
The Brattle Group (London)
ABSTRACT In the first cartel overcharge claim brought in the English High Court, the claimant’s methodology for estimating ABB overcharges on the BritNed cable was comprehensively rejected. The Court concluded that the claimant’s econometric analysis was insufficiently grounded in facts and (...)

The UK High Court delivers its first follow-on cartel damages case judgment in the electricity interconnected cable market (BritNed / ABB)
Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (London)
The High Court has delivered its decision in the claim brought by BritNed Development Limited (BritNed) against ABB AB and ABB Ltd (together ABB). The case is significant as it is the first cartel damages claim to reach final judgment in the English courts. BritNed alleged that it suffered (...)

The UK High Court of Justice rejects econometrics analysis in a cartel damages case for being too complex (BritNed / ABB)
University of Buckingham
BritNed Development Ltd v. ABB AB and ABB Ltd [2018] EWHC 2616 (Ch). (“BritNed”) is the first English cartel damage judgment and the first to consider an econometric approach to calculating overcharges. The court rejected the claimant’s econometric analysis as ‘too complex’ and “unspecific”. Here (...)

The Commercial Courts of Barcelona and Madrid render judgments in follow-on suits against a cartel in the envelopes market (Planeta / Misiones Salesianas / Bankoa...)
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
Update on damages claims in Spain - paper envelope cartel damages recovery. Several rulings have been issued by Spanish lower courts shedding light on key aspects of antitrust damages claims, such as the treatment of evidence concerning the calculation of compensation for damages. Also the (...)

The Alberta Court of Queen’s Bench (Canada) rules in a private claim regarding a joint venture agreement between two purchasers of chemicals products (Dow Chemical Canada / Nova Chemicals Corporation)
Steve Szentesi Law Corporation (Vancouver)
Alberta Court of Queen* In a recent decision handed down by the Alberta Court of Queen’s Bench, in Dow Chemical Canada ULC v. NOVA Chemicals Corporation, 2018 ABQB 482 (“Dow Chemical”), the Court established both new law and confirmed earlier case law under sections 45 and 90.1 of the federal (...)

The US District Court for the Eastern District of Pennsylvania finds that a company was not part of a conspiracy to manipulate the supply of eggs and raise prices (In re Processed Egg Prods)
Dechert (Philadelphia)
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Dechert (Philadelphia)
The case began 10 years ago when a class of companies that purchase eggs sued the country’s leading egg producers, seeking more than $1 billion in damages. The plaintiffs claimed that the egg producers conspired to manipulate the supply and raise prices for eggs. Specifically, the buyers (...)

The German Federal Court clarifies controversial judgments around the statute of limitations for cartel damages claims (Cement Cartel)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
I. Introduction On 12 June 2018, the German Federal Court of Justice (Bundesgerichtshof, BGH) passed its long-awaited landmark decision in KZR 56/16 (Grauzementkartell II). The BGH held that Sec. 33 (5) of the German Act against Restraints of Competition (ARC) (today Sec. 33h (6) ARC), which (...)

The German Federal Court of Justice grants a claim for damages relating to a cement cartel by extending the time period in which limitation rules can be suspended (Cement Cartel)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Brussels)
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Norton Rose Fulbright (Brussels)
This landmark judgment of the German Federal Court of Justice concerns an action for damages relating to the German cement cartel. However, the judgment has much wider implications and is relevant for damage claims relating to other cartel infringements. The Federal Court extended the temporal (...)

The German Federal Court of Justice rules on the statute of limitations for cartel damages claims (Cement Cartel)
Hausfeld (Berlin)
In a landmark ruling today, the Federal Court of Justice (“FCJ”) ruled on the statute of limitations for cartel damages claims. Since July 2005, the German Act against Restraints provides that the statute of limitations for damages claims is suspended pending an investigation by competition (...)

The German Supreme Court rules that statute of limitations is tolled for cartel damages claims that arose before July 2005 (Cement Cartel II)
Hausfeld (Düsseldorf)
Introduction: The tolling of the statute of limitations for cartel damages claims. According to former Section 33 Para. 5 of the German Act against Restraints of Competition (hereinafter Section 33(5)) the statute of limitations with respect to private cartel damages claims is tolled if a (...)

The EU Court of Justice AG Sañchez-Bordona issues opinion on the Member States’ ability to exclude from government tenders companies with a record of past illegality (Vossloh Laeis / Stadtwerke München)
Matheson (Dublin)
On 16 May 2018, Advocate General Sañchez-Bordona of the Court of Justice of the European Union opined on the ability of Member States to take a harsh stance on the exclusion from Government tenders of companies with a record of past illegality, such as cartel behaviour or bid-rigging. While (...)

The EU Court of Justice AG Campos Sánchez-Bordona suggests interpretation concerning the limitations of the contracting authority’s ability to demand full and unrestricted cooperation from undertakings seeking to reassure them that they have self-cleaned after participating in collusive practices in public markets (Vossloh Laeis / Stadtwerke München)
University of Bristol - Law School
BID RIGGING, SELF-CLEANING, LENIENCY AND CLAIMS FOR DAMAGES: A BEAUTIFUL PROCUREMENT MESS? (C-124/17)* In his Opinion of 16 May 2018 in Vossloh Laeis, C-124/17, EU:C:2018:316 (not available in English), Advocate General Campos Sánchez-Bordona has offered an interesting view on the (...)

The Belgian Supreme Court dismisses an appeal against an interim judgment of the Brussels Court of Appeal (Kone / Otis / Schindler / ThyssenKrupp)
Court of First Instance of Namur (Namur)
On 22 March 2018, the Belgian Supreme Court (the “Supreme Court”) dismissed an appeal against an interim judgment of the Brussels Court of Appeal (the “Court of Appeal”) on the damages claim introduced by the European Commission (the “Commission”). This claim arose following the Commission’s 2007 (...)

The US District Court for the Northern District of California denies a motion for class certification for a proposed class of indirect purchasers of lithium ion batteries (Lithium Ion Batteries)
McDermott Will & Emery (Washington)
Indirect purchaser plaintiffs’ motion for class certification in a lithium ion battery suit was denied for failing to show concrete evidence linking increased input costs to increased end-product prices; theoretical inference is not enough. What happened: The US District Court for the Northern (...)

The UK Competition Appeal Tribunal grants an application by the claimant in a damages action in the automobile industry for disclosure of licensing arrangements made by the defendant (Peugeot / NSK)
Latham & Watkins (London)
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Matheson (Dublin)
This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. CAT Rules on Disclosure in Peugeot S.A. and others v NSK Ltd and others* The CAT’s specific disclosure ruling addresses the use of licensing to support (...)

The UK Court of Appeal adopts a ruling allowing plaintiffs in cartel damages actions to advance claims based on overcharges incurred outside of the EU when they ultimately hit the sales of their finished goods within the EU (Liyama)
Dentons (Brussels)
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Levi Strauss (Brussels)
On February 16, 2018, the UK Court of Appeal adopted its much awaited ruling in the iiyama case. Taking stock of the Court of Justice (CoJ) ruling in Intel last year, the Court of Appeal allows plaintiffs in civil cartel damages actions to advance claims based on overcharges incurred by their (...)

The EU Commission publishes a report on the implementation of collective redress mechanisms in EU Member States
Court of First Instance of Namur (Namur)
On 26 January 2018, the European Commission (the “Commission”) published a report on the implementation of collective redress mechanisms in EU Member States (the “Report”). The Report is the Commission’s opportunity to comprehensively review the implementation of its 2013 Recommendation on common (...)

The US Court of Appeals for the Third Circuit issues a decision holding that purchasers have standing to seek damages from suppliers accused of price-fixing (Processed Egg Products)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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K&L Gates (Charleston)
Last week, in In re: Processed Egg Products Antitrust Litigation, the U.S. Court of Appeals for the Third Circuit issued a decision holding that purchasers of processed egg products have standing to seek damages from egg suppliers accused of price-fixing in violation of Section 1 of the Sherman (...)

Unilateral Practices

The Polish Competition Authority fines a telecoms company for excessive costs of agreement termination (UPC Polska)
Polish Competition Authority (Warsaw)
UPC Polska fined for excessive costs of agreement termination - decision of President of UOKiK* UPC’s customers had to pay more for termination of agreement concluded for a definite period than they would have to pay for its continuation. Tomasz Chróstny, President of the Office of Competition (...)

The UK Competition Authority grants a claim for damages against a railway company (Achilles / Network Rail Infrastructure)
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
The Competition Appeal Tribunal (CAT) has granted a claim for damages by Achilles Information Limited (“Achilles”) against Network Rail Infrastructure Limited (“Network Rail”). The Judgment is the CAT’s first damages award arising from a standalone claim since 2016, and follows the CAT’s earlier (...)

The Larnaca District Court issues an award of €257K to a grain distributor and retailer as compensation for suffering from predatory pricing (AGS Agrotrading / Cyprus Grain Commission)
Harris Kyriakides (Cyprus)
Cyprus Courts issue their first judgment awarding civil law damages for breach of competition laws. In the first decision issued by the Cyprus Courts on damages to a corporation as a result of infringement of competition laws, the Larnaca District Court awarded on 9 February 2022 the total (...)

The EU General Court awards €1.8M compensation in favour of a German telecommunications company against the EU Commission for failure to repay default interest due from wrongful assessment of abuse of dominant position in the Slovak market for broadband (Deutsche Telekom)
General Court of the European Union (Luxembourg)
The General Court awards Deutsche Telekom compensation in the amount of approximately € 1.8 million for the harm which it suffered as a result of the European Commission’s refusal to pay it default interest on the amount of the fine which it had unduly paid for an infringement of competition (...)

The US FTC orders multiple pharmaceutical companies to provide up to $40M in damages for monopolizing the drug "Daraprim" and bans their executives from working in the sector (Vyera Pharmaceuticals / Martin Shkreli / Kevin Mulleady)
US Federal Trade Commission (FTC) (Washington)
FTC, States to Recoup Millions in Relief for Victims Fleeced by ‘Pharma Bro’ Scheme to Illegally Monopolize Life-Saving Drug Daraprim* ’Pharma Bro’ Associate Mulleady banned from pharma industry and corporate defendants to pay up to $40 million; Trial set to begin next week for ‘Pharma Bro’ Martin (...)

The UK Competition Authority finds a breach in competition law by a price comparison website that leads to an opt-out collective claim based on the allegation that the website’s conduct led to higher prices of home insurance for consumers (ComparetheMarket)
Hausfeld (London)
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Hausfeld (London)
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Hausfeld (London)
London, 1 November 2021 - An opt-out collective claim on behalf of over 20 million UK consumers of home insurance has been filed today by Home Insurance Consumer Action against the companies behind Comparethemarket.com. The claim follows the Competition and Markets Authority’s finding last year (...)

The Paris Court of Appeal orders a tobacco supplier to pay damages of almost €127M to two distributors for lost profits as a result of resale price maintenance agreements (Lorillard / AVGR / Lagache)
Nest Avocats (Paris)
The Paris Court of Appeal ordered LORILLARD, head of the LORENOVE concession network, to pay to two of its dealers (AVGR and LAGACHE), belonging to the same group of companies, respectively the sums of €62,952.93 and €64,021.58 for having imposed resale prices on them from 2010 to 2013. Dealers (...)

The Chinese Intermediate People’s Court of Ningbo City enforces mandatory licensing for "essential facility" patents in an antitrust case (Ketian / Hitachi)
Jones Day (Hong Kong)
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Jones Day (Shanghai)
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Jones Day (Beijing)
In Short The Development: China’s Ningbo Intermediate People’s Court ruled that Hitachi Metals ("Hitachi") allegedly abused its dominance when it refused to license patents necessary for the production of sintered neodymium-iron-boron ("sintered NdFeB"). The Significance: This is the first case (...)

The UK Competition Appeal Tribunal provides guidance for post-Brexit permission to serve out of the jurisdiction applications and confirms that damages occasioned by anti-competitive conduct will not be narrowly construed (Epic Games / Apple / Google)
Hausfeld (London)
The Tribunal issued its combined permission to serve out of the jurisdiction judgment in Epic Games v Apple (the Apple Claim) and Epic Games v Google (the Google Claim) on 22 February 2021, declining permission for service on Apple Inc. and granting permission for service for a subset of (...)

The Paris Commercial Court imposes a €1.2 million fine on a Big Tech company for abuse of a dominant position against a telephone directory services company (Oxone Technologies / Google)
Addleshaw Goddard (Paris)
In the context of a stand-alone action – which falls under the new provisions resulting from the transposition of the Damages Directive – the Paris Commercial Court ruling at first instance orders Google to pay EUR 1,2 million in damages to Oxone, a telephone directory services company. Oxone (...)

The Paris Commercial Court rules that a Big Tech company should pay €1.27 million in antitrust damages for abuse of its dominant position in the online search advertising market (Oxone Technologies / Google)
Hausfeld (London)
Following a stand-alone claim filed by a directory enquiry services provider, the Paris Commercial Court ruled, on 10 February 2021, that Google holds a dominant position in the online search advertising market through Google Ads and abuses that position by setting up rules which are “neither (...)

The UK Competition Authority publishes a notice of a standalone competition damages claim against a trade association for abusing its dominant position and engaging in anti-competitive agreements (International Tin Association)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
On 26 January 2021 the Competition Appeal Tribunal (CAT) published a notice of a standalone competition damages claim (brought under section 47A of the Competition Act 1998) by Kerilee Investments, a metal trader, against the International Tin Association, a UK based trade association. The (...)

The French Supreme Court confirms that the incumbent horse race betting operator abused its dominant position (PMU)
Van Bael & Bellis (Brussels)
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Hogan Lovells (Brussels)
On 14 October 2020, the French Supreme Court (“Cour de Cassation”) confirmed the Court of Appeals’ finding that horserace-betting company Pari Mutuel Urbaine (“PMU”) abused its dominant position in the market for physical horserace betting by pooling bets with those in the online market. (...)

The US Court of Appeals for the Federal Circuit reverses a judgment that upheld “skinny labels” and allowed a generic medicine to launch on uses not covered by a patent (GlaxoSmithKline / Teva)
Rutgers University (Camden)
On October 2, 2020, the U.S. Court of Appeals for the Federal Circuit vacated a district court’s judgment in favor of defendant Teva in a case involving “skinny labels.” GlaxoSmithKline LLC v. Teva Pharm. USA, Inc., 976 F.3d 1347 (Fed. Cir. 2020). When a drug can be used to treat multiple (...)

The US Court of Appeals for the Third Circuit upholds a lower Court’s ruling certifying a class of pharmaceutical drug purchasers alleging that the defendant engaged in anticompetitive behavior to maintain its monopoly over a drug (Indivior)
Hausfeld (Washington)
On July 28, 2020, a Third Circuit Court of Appeals panel unanimously upheld a lower court ruling certifying a class of Suboxone purchasers who alleged that the defendant Indivior Inc. engaged in anticompetitive behavior to maintain its monopoly over the drug. The Third Circuit panel rejected (...)

The German Federal Court of Justice clarifies obligations of parties in SEP licensing negotiations on FRAND terms (Sisvel / Haier)
Van Bael & Bellis (Brussels)
In its judgment of 5 May 2020, the Federal Court of Justice (“FCJ”) overturned the appeal ruling of the Higher Regional Court of Düsseldorf (the “Düsseldorf Court”) and found that Haier’s mobile telephones and tablets infringed Sisvel’s standard-essential patent (“SEP”) and that Sisvel had not abused (...)

The German Federal Court of Justice issues a judgment in a case involving SEP licensing negotiations on FRAND terms between two companies active in the mobile telecommunications market (Sisvel / Haier)
Van Bael & Bellis (Brussels)
On 5 May 2020, the German Federal Court of Justice (Bundesgerichtshof - the “FCJ”) delivered a judgment in a case pitting Sisvel against Haier which deals with the licensing of Standard Essential Patents (“SEP”) on terms that are fair, reasonable and non-discriminatory (“FRAND”). This is the first (...)

The Italian Court of Cassation rules on the limitation period of antitrust damages claims in two judgments in the telecommunications sector (Uno Communications / Telecom Italia) (Uno Communications / Vodafone Italia)
White & Case (Milan)
1.- Introduction By judgements issued on the 27th of February, 2020, No. 5381, and on the 3rd of April 2020, No. 7677, the Italian Court of Cassation (Corte di Cassazione) ruled that the antitrust damages claims brought by Uno Communications S.p.A. against Vodafone Italia S.p.A. and Telecom (...)

The Nanjing Intermediate People’s Court rules in favour of an undertaking and its subsidiary in an abuse of dominance case against its suppliers of active pharmaceutical ingredient and awards the plaintif damages as compensation for anti-competitive conduct totally $10 million (Yangtze River)
Hogan Lovells (Shanghai)
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Hogan Lovells (Beijing)
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Hogan Lovells (Shanghai)
On 18 March 2020 the Nanjing Intermediate People’s Court (court) ruled in favor of Yangtze River Pharmaceutical Group and its subsidiary (Yangtze Pharma) in an abuse of dominance case against its suppliers of active pharmaceutical ingredients (API). The court awarded the plaintiffs a record (...)

The Indian Competition Authority fines real estate company for abuse of dominance by imposing one-sided clauses in contracts in the market for sale of independent villas (Jaiprakash Associates)
Vaish Associates Advocates (New Delhi)
CCI fines Jai Prakash Associates for abusing its dominant position in the market for sale of independent villas in Integrated Townships in the territory of Noida and Greater Noida* CCI, imposed a penalty of INR 13.82 Crores on Jai Prakash Associates (“JPA”) for abusing its dominant position by (...)

The US Court of Appeals for the Third Circuit affirms directed verdict following a rare price discrimination trial (Spartan Concrete Products / Argos USVI)
Jones Day (Washington)
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Jones Day (Cleveland)
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Jones Day (Washington)
Failure to show antitrust injury proved fatal to price discrimination claims as the Third Circuit affirmed a directed verdict in favor of cement company, Argos USVI, in a case brought by its customer, ready-mix concrete company Spartan Concrete Products ("Spartan"). This decision highlights (...)

The US Court of Appeals for the Third Circuit affirms bench trial’s decision in a rare price discrimination suit (Spartan Concrete Products / Argos USVI)
Hausfeld (New York)
Robinson-Patman Act decisions are rare. This often is because legitimate complaints against a supplier providing favorable pricing to a complaining customer’s competitors either are settled out of court or prior to a decision on the merits. So it is of interest when a price discrimination suit (...)

The Helsinki District Court hands down two judgements regarding compensation of harm resulting from predatory pricing in the milk market (Maitomaa / Valio) (Maitokolmio / Valio)
Hannes Snellman (Helsinki)
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Bird & Bird (Helsinki)
In June 2019, the District Court of Helsinki handed down two judgments regarding compensation of harm resulting from predatory pricing. The claims for damages were brought before the court by two milk producers’ cooperatives, Maitomaa and Maitokolmio, with respect to a predatory pricing case in (...)

The Czech Supreme Court confirms that invoking trademark rights to prevent parallel imports can amount to an abuse of dominance (Fiskars / Mountfield)
Skils (Prague)
On 29 May 2019, the Supreme Court (SC) partially granted an extraordinary appealed lodged by Mountfield against the previous judgment of the High Court in Prague of 23 May 2017 (Ref.No. 3 Cmo 132/2016) in a dispute with Fiskars concerning an alleged violation of Firskars’ rights to trademarks (...)

The Danish Competition Authority reaches a landmark abuse of dominance decision against an ambulance services provider that leads to a huge damages settlement (Falck / BIOS)
Szecskay Attorneys at Law (Budapest)
HUGE DAMAGES SETTLEMENT FOLLOWING LANDMARK ABUSE OF DOMINANCE DECISION On January 30 2019, the Danish Competition Council (the “DCC”) found that ambulance services provider, Falck, had abused its dominant position under Article 102 TFEU. The DCC held that following a failed tender bid to the (...)

The US District Court for the Northern District of California denies motion for summary judgment that a company’s standard-essential patent licensing practices breached its FRAND obligations (ASUS / InterDigital)
Hogan Lovells (Washington)
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Hogan Lovells (Washington)
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Baker McKenzie (Washington)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In a decision published in redacted form, Judge Beth Labson Freeman of the Northern District of California denied ASUSTek Computer Inc.’s and ASUS Computer (...)

The Ontario Superior Court holds that misleading information can trigger class actions as a breach of the Competition Act (Rebuck / Ford Motor)
Steve Szentesi Law Corporation (Vancouver)
Key Requirements For Misleading Advertising Civil Actions Confirmed By Ontario Superior Court* In a recent case handed down by the Ontario Superior Court of Justice, in Rebuck v. Ford Motor Company, the Court confirmed key requirements for commencing Competition Act misleading advertising (...)

The Cypriot Competition Authority rejects allegations of abuse of dominance regarding an exclusive dealing agreement for the supply of hairdressing salon products (Angela Antoniadou / A.J. Vouros)
Harris Kyriakides (Cyprus)
Introduction On 30 November 2018, the Cyprus Commission for the Protection of Competition (the Commission) rejected a cοmplaint for infringement of Section 6 of the Protection of Competition Law (Law 13(I)/2008), as amended (the Law). The aforementioned alleged infringement was based on the (...)

The US District Court for the Central District of California hears private enforcement actions alleging price discrimination by an energy drink manufacturer (Living Essentials)
Bona Law (Detroit)
This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. ROBINSON-PATMAN SUITS AGAINST 5-HOUR ENERGY MAKER PROVIDE LESSONS FOR OTHER SUPPLIERS* Living Essentials LLC, the maker of 5-hour Energy drinks, has faced two (...)

Mergers

The EU General Court dismisses a €1.7 billion claim for damages brought by a courier delivery services company in which it sought compensation for losses resulting from the Commission’s decision to block a merger with its rival (UPS / TNT)
White & Case (Brussels)
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White & Case (Brussels)
,
White & Case (Brussels)
On 23 February 2022, the EU’s General Court (GC) dismissed a €1.7 billion claim for damages brought by United Parcel Service Inc. (UPS) against the European Commission (EC). UPS sought compensation for the losses resulting from the EC’s decision to block UPS’ merger with TNT NV (TNT). The GC, (...)

The EU General Court dismisses a damages action for EUR 1.74 billion brought by a courier delivery services company against the Commission for the losses and costs resulting from the annulment of a merger prohibition decision (UPS / TNT)
Ashurst (Brussels)
On 23 February 2022, the General Court dismissed UPS’s damages action for EUR 1.74 billion against the European Commission for the losses and costs resulting from the annulment of the UPS/TNT merger prohibition decision. Key takeaways Annulment of a merger prohibition decision will not (...)

The German Federal Court of Justice rules that where consideration in a public acquisition is not adequate shareholders may be entitled to sue
Morgan Lewis (Frankfurt)
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Morgan Lewis (Frankfurt)
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Morgan Lewis (Frankfurt)
RECENT CASE LAW RELATING TO PUBLIC TENDER OFFERS UNDER THE GERMAN SECURITIES ACQUISITION AND TAKEOVER ACT (WPÜG): The German Federal Court of Justice (FCJ) pronounced on November 23, 2021 two judgments in parallel proceedings that may have landmark effect. In contrast to the FCJ’s earlier (...)

The US Court of Appeals for the Fourth Circuit upholds the first divestiture order in an antitrust suit brought by a private party challenging a merger, years after the transaction, in the door manufacturing sector (Steves & Sons / Jeld-Wen / CMI)
Baker Botts (Washington)
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Baker Botts (Washington)
On February 18, 2021, the U.S. Court of Appeals for the Fourth Circuit upheld the first divestiture order in an antitrust suit brought by a private plaintiff which challenged its rival’s acquisition four years after the transaction. Post-consummation merger challenges are rare and—until now—have (...)

The US Court of Appeals for the Fourth Circuit upholds its earlier decision ordering the divestiture of a corporate acquisition in a private antitrust lawsuit (Steves & Sons / Jeld-Wen / CMI)
Herbert Smith Freehills (New York)
,
Latham & Watkins (London)
On March 22, 2021, the US Court of Appeals for the Fourth Circuit upheld its earlier decision ordering the divestiture of a corporate acquisition in a private antitrust lawsuit, where US merger control authorities had previously cleared the transaction. The decision represents the first time a (...)

The US State of Delaware Chancery Court issues an opinion in litigation between two health-insurance giants over a failed merger and confirms that neither is entitled to damages (Anthem / Cigna)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On August 31, 2020, the Delaware Chancery Court issued an opinion in litigation between Anthem and Cigna related to the contract in their terminated merger. In its sprawling 306-page opinion, the court detailed a “corporate soap opera” in which the parties’ “battle for power spanned multiple acts.” (...)

The Ankara 9th Administrative Court orders a stay of execution on a port acquisition after the Competition Authority’s conditional clearance with behavioural remedies (Kumport)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
,
Kia (Frankfurt)
Background Limar Liman ve Gemi İşletmeleri A.Ş. (“Limar”), which is controlled by Arkas Holding A.Ş. (“Arkas”) notified to the Turkish Competition Authority (the “Authority”) its acquisition of the sole control over Mardaş Marmara Deniz İşletmeciliği A.Ş. (“Mardaş” or the “Target”) operating the Ambarlı (...)

The US District Court for the Eastern District of Virginia requires divestiture in a long-consummated merger (Steves & Sons / Jeld-Wen / CMI)
Jones Day (Houston)
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Jones Day (Washington)
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Sheppard Mullin (Washington)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Congratulations! Your deal navigated through antitrust review, you closed the transaction, and you are making your way through the three-year integration plan. (...)

The US District Court for the Eastern District of Virginia orders a defendant in private antitrust litigation to divest a manufacturing plant following a competitor’s merger challenge (Steves & Sons / Jeld-Wen / CMI)
Jones Day (Houston)
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Jones Day (Washington)
,
Sheppard Mullin (Washington)
A federal district court has ordered a defendant in private antitrust litigation to divest a manufacturing plant following a competitor’s merger challenge. Although the decision is certain to be appealed, it may embolden customers or competitors wishing to challenge a transaction and create new (...)

State Aid

The EU Court of Justice rules that compensatory payments may be categorised as State aid and must comply with relevant de minimis regulations (Satini-S / Dabas aizsardzības pārvalde)
Maastricht University
Compensation for Damage and De Minimis Aid* Compensation for damage caused by protected animals is State aid. Member States may categorise compensatory payments as de minimis aid and refuse to make payments in excess of the de minimis threshold. Introduction Advantage in the meaning of (...)

The EU Court of Justice finds that the General Court erred in law when finding the Commission incompetent to examine, in the light of the law on State aid, the compensation paid to Swedish investors by Romania in the implementation of an arbitral award (Micula)
European Court of Justice (Luxembourg)
The General Court erred in law in finding that the Commission lacked competence to examine, in the light of the law on State aid, the compensation paid to Swedish investors by Romania in implementation of an arbitral award* While that award had upheld the argument of those investors that that (...)

The EU Commission approves a €2.55 billion Portuguese restructuring aid in favour of a national airline company and a €107 million compensation for damages suffered due to COVID-19 pandemic (TAP Air Portugal) Free
European Commission - DG COMP (Brussels)
State aid: Commission approves €2.55 billion Portuguese restructuring aid in favour of TAP Group and €107 million compensation for damages suffered due to coronavirus pandemic* Today, the European Commission has approved, under EU State aid rules: (i) €2.55 billion of restructuring aid to enable (...)

The EU Commission approves a €520 million Italian scheme to compensate the trade fairs and congress sector for damages suffered due to the COVID-19 pandemic Free
European Commission - DG COMP (Brussels)
State aid: Commission approves €520 million Italian scheme to compensate the trade fairs and congress sector for damages suffered due to the coronavirus outbreak* The European Commission has approved, under EU State aid rules, a €520 million Italian scheme to compensate companies active in the (...)

The EU Commission opens an investigation on State Aid granted by the Romanian government to an airline company (Tarom)
Romanian Competition Council (Bucharest)
The Investigation opened by European Commission in Tarom Case is a procedural step of State aid Assessment* The Romanian Government granted Tarom an individual rescue state aid, amounting Euro 36.7 million that was approved by the European Commission in February 2020, given that the company (...)

The EU Commission approves €24.7 million Italian aid to compensate a national airline company for further damages suffered due to the COVID-19 pandemic (Alitalia) Free
European Commission - DG COMP (Brussels)
State aid: Commission approves €24.7 million of Italian support to compensate Alitalia for further damages suffered due to coronavirus outbreak* The European Commission has found €24.7 million of Italian support in favour of Alitalia to be in line with EU State aid rules. This measure aims at (...)

The Italian Supreme Court decides, following a preliminary reference to the EU Court of Justice, that aid which predated EU market liberalisation can constitute new State aid (Fallimento Traghetti del Mediterraneo)
Bonelli Erede (Brussels)
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Luiss Guido Carli University (Rome)
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Bonelli Erede (Brussels)
On 16 October 2020, the Supreme Court delivered Decision No. 22631 in a case concerning alleged aid granted by the Italian Government to a company operating in the maritime cabotage sector. Background & facts of the case In 1981, Fallimento Traghetti del Mediterraneo S.p.A. (“TDM”) brought (...)

The EU Commission approves €199.45 million Italian support to compensate a national airline for damages suffered due to the COVID-19 pandemic (Alitalia) Free
European Commission - DG COMP (Brussels)
State aid: Commission approves €199.45 million Italian support to compensate Alitalia for damages suffered due to coronavirus outbreak* The European Commission has found Italian €199.45 million support in favour of Alitalia to be in line with EU State aid rules. The measure aims at compensating (...)

The EU Commission approves €62 million Romanian loan guarantee to compensate a national airline for damages suffered due to the COVID-19 pandemic and provide the airline with urgent liquidity support (Blue Air) Free
European Commission - DG COMP (Brussels)
State aid: Commission approves €62 million Romanian loan guarantee to compensate Blue Air for damage suffered due to coronavirus outbreak and provide the airline with urgent liquidity support* The European Commission has approved, under EU State aid rules, a Romanian loan guarantee of up to (...)

The EU Commission approves €150 million Austrian subordinated loan to compensate a national airline company for damages suffered due to the COVID-19 pandemic (Austrian Airlines) Free
European Commission - DG COMP (Brussels)
State aid: Commission approves €150 million Austrian subordinated loan to compensate Austrian Airlines for damages suffered due to coronavirus outbreak* The European Commission has found an Austrian €150 million subordinated loan (convertible into a grant) in favour of Austrian Airlines AG to be (...)

The EU Commission approves €3.7 billion Swedish scheme to compensate companies for damages suffered due to the COVID-19 pandemic Free
European Commission - DG COMP (Brussels)
State aid: Commission approves €3.7 billion Swedish scheme to compensate companies for damages suffered due to coronavirus outbreak* The European Commission has found an approximately €3.7 billion (SEK 39 billion) Swedish scheme that partially compensates companies exposed to large turnover (...)

The EU Commission approves €8 billion Austrian scheme to compensate companies for damage caused by the COVID-19 pandemic Free
European Commission - DG COMP (Brussels)
State aid: Commission approves €8 billion Austrian scheme to compensate companies for damage caused by coronavirus outbreak* The European Commission has found a €8 billion Austrian scheme to compensate companies for damages related to the coronavirus outbreak to be in line with EU State aid (...)

The EU General Court dismisses the appeal of financial services companies which wanted to annul a State aid (BPC Lux 2)
Maastricht University
Bail-in Is the Responsibility of Member States* Introduction Investors in banks who lost their money have sought compensation both at EU and national level. So far, claims for damages at EU level have been unsuccessful. In some instances, the cases before EU and national courts have been (...)

The EU Court of Justice holds that the EU rules do not impose time limitation rules when national courts deal with a claim for damages arising from non-notified aid (Fallimento Traghetti del Mediterraneo)
Maastricht University
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Procedures

The German Federal Court of Justice opens the door to collective action claims in cartel cases (financialright)
Hausfeld (Berlin)
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Hausfeld (Berlin)
With its recent decision in the financialright case the highest German civil court, the Federal Court of Justice (Bundesgerichtshof, “BGH”), clarified that the bundling of claims through an assignment to a legal service provider, the so-called assignment model, is allowed under German law. The (...)

The German Federal Court of Justice rules that enforcement by debt collectors of damages claims bundled through mass assignment is compliant with German law (Financialright)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 13 June 2022, the German Federal Court of Justice (“FCJ”) ruled that the mass assignment of individual damages claims to a debt collector, who then brings a consolidated claim supported by a qualified lawyer, does not violate the German Legal Services Act (“LSA”). This judgment gives a green (...)

The UK Competition Appeal Tribunal in its recent FX judgment demonstrates willingness to strike out poorly pleaded claims and deny opt-out certification (Evans / O’Higgins)
Skadden, Arps, Slate, Meagher & Flom (London)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (London)
Takeaways The CAT is willing to consider strike-out seriously at the certification stage. The CAT considered striking out the claims of its own motion, and warned the proposed class representatives that they should consider ‘significant amendment and revision’ of their claims to avoid strike-out. (...)

The EU General Court dismisses a €1.7B damages claim for a failed merger blocked by the Commission and later cleared by the Court of Justice (UPS / TNT)
Willkie Farr & Gallagher (Paris)
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Willkie Farr & Gallagher (London)
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Willkie Farr & Gallagher (Brussels)
The General Court of the European Union Dismisses a EUR 1.7 Billion Damages Claim Against the European Commission For a Failed Merger* On 23 February 2022, the General Court of the European Union (the "General Court") issued a landmark judgment dismissing a request to hold the European (...)

The Regional Court of Stuttgart finds bundled cartel damages claims through a legal services provider to be inadmissible (German State of Baden-Württemberg)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
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Hogan Lovells (Munich)
1. Background In Germany, the discussion about the admissibility of enforcing bundled and assigned cartel damages claims via a legal services provider enters the next round. As Germany does not offer claimants a true US- or UK-style class action regime claimants will seek alternative ways to (...)

The EU General Court awards a telecommunications company €1.8 million in damages, finding that the Commission had wrongly refused to pay default interest on the portion of a fine that the company had initially paid for an infringement of competition rules (Deutsche Telekom)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
In a judgment of 19 January 2022, the General Court of the European Union (“Court”) awarded Deutsche Telekom AG (“DT”) € 1.8 million in damages, finding that the European Commission (“Commission”) had wrongly refused to pay default interest on the portion of a fine that DT had initially paid for an (...)

The US State of Delaware Chancery Court authorizes class-action claims of breach of fiduciary duty to proceed against a SPAC’s controlling shareholder and directors (Churchill Capital Corp. III / MultiPlan)
Cleary Gottlieb Steen & Hamilton (New York)
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Cleary Gottlieb Steen & Hamilton (New York)
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Cleary Gottlieb Steen & Hamilton (New York)
In one of the first opinions addressing fiduciary duty claims in the context of a transaction involving a special purpose acquisition company (“SPAC”), the Delaware Court of Chancery determined that the SPAC shareholders’ right to redeem can be undermined by insufficient disclosures regarding the (...)

The US DoJ files a civil antitrust lawsuit against a restaurant chain owner and investment fund operator for violating the pre-transaction notification and waiting-period requirements of the Hart-Scott-Rodino Act (Biglari)
US Department of Justice (Washington DC)
Biglari Holdings Inc. to Pay Civil Penalty for Repeat Violation of Antitrust Pre-Transaction Notification Requirements* The Justice Department’s Antitrust Division, at the request of the Federal Trade Commission (FTC), filed a civil antitrust lawsuit today in the U.S. District Court for the (...)

The Italian Administrative Court of First Instance annuls a resolution from the Competition Authority to grant the alleged victim of antitrust infringement access to the infringement investigation file (Italcementi)
Portolano Cavallo (Milan)
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Portolano Cavallo (Milan)
On December 21, 2021, the Italian administrative court of first instance (“TAR Lazio”), which has jurisdiction to review the decisions of the Italian Competition Authority (AGCM or “ICA”), annulled a resolution from the latter to grant the alleged victim of an antitrust infringement access to the (...)

The EU Court of Justice rules that it may be possible for a French court to assess damages arising from a defamatory claim made by a Hungarian company against a Czech company if some of the alleged damage occurred within France (Gtflix Tv / DR)
Versailles Saint-Quentin-en-Yvelines University
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Versailles Saint-Quentin-en-Yvelines University
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Versailles Saint-Quentin-en-Yvelines University
This decision deals with a dispute between Gtflix, an adult film broadcaster based in the Czech Republic, and its competitor, DR, an adult film broadcaster and producer based in Hungary. Gtflix is seeking the removal of derogatory statements made by DR on several websites and internet forums (...)

The English Court of Appeal clarifies the threshold for raising ‘off-setting’ defences in competition and other breach of duty claims (NTN / Stellantis)
Shearman & Sterling (London)
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Shearman & Sterling (Brussels)
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London School of Economics (London)
English Court of Appeal Clarifies Threshold for Raising ‘Off-Setting’ Defences in Competition and Other Breach of Duty Claims Introduction and Summary The recent decision of the English Court of Appeal in NTN Corporation v. Stellantis concerned an appeal against a successful application to (...)

The Latvian Competition Authority publishes guidance for calculation and recovery of damages arising from violations of competition law
Latvian Competition Council (Riga)
The Competition Council has developed a methodological material for the calculation of damages and recovery of damages for violation of competition law* The Competition Council (the CC) has prepared methodological material for the calculation of losses and recovery of losses for violation of (...)

The Paris Court of Appeal issues a ruling which affirms that clauses excluding the payment of follow-on damages must be drafted in clear and precise terms (IQVIA IMS Health / EURIS Health Digital Solution)
Simmons & Simmons (Paris)
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Simmons & Simmons (Paris)
On 8 December 2021, the Paris Court of Appeal (’the Court’) issued an insightful judgment regarding the issue of follow-on actions damages. The sanction of an anti-competitive practice and the exclusionary clause In its decision dated 8 July 2014, the French Competition Authority (’the FCA’) (...)

The UK Supreme Court dismisses a single claimant’s landmark class action attempt against a Big Tech company for alleged contraventions of data protection law, but lowers the bar for future representative actions (Google / Lloyd)
Covington & Burling (London)
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Covington & Burling (Brussels)
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Covington & Burling (London)
On 10 November 2021, the UK Supreme Court ruled in favour of Google in a landmark judgment against an attempt by a single claimant, Mr Richard Lloyd, to bring a representative action on behalf of a class of 4 million iPhone users relating to Google’s alleged contraventions of data protection (...)

The EU Court of Justice AG Rantos delivers an opinion on the temporal application of the Antitrust Damages Directive, confirming that the nature of the rules implementing the directive is determined by EU law and not national law (RM / Volvo / DAF Trucks)
CDC Cartel Damage Claims (Brussels)
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European Commission - DG COMP (Brussels)
AG Rantos delivers a halfway opinion on the temporal application of the EU Antitrust Damages Directive (C-267/20, AB Volvo, DAF TRUCKS NV / RM)* In his opinion of 28 October 2021 (‘Opinion’), Advocate General (‘AG’) Rantos confirmed that the nature of the rules implementing the EU Damages (...)

The UK Competition Appeal Tribunal approves second and third ever collective proceedings applications for two stand-alone claims of abuse of dominance (Gutmann / South Western Trains) (Le Patourel / BT)
Hausfeld (London)
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Hausfeld (London)
The first Collective Proceedings Order (“CPO”) was made in the United Kingdom in opt-out collective competition proceedings in Merricks v Mastercard Inc. and Others] on 18 August 2021 (a practical inevitability after the Supreme Court’s judgment in that case). Hot on the heels of that decision, (...)

The UK Competition Appeal Tribunal approves a class representative for opt-out collective proceedings on behalf of train travelers in a landmark standalone claim for abuses of dominance by two rail franchises (Gutmann / South Western Trains)
Hausfeld (London)
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Hausfeld (London)
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Ashurst (London)
In great news for train travellers today, the Competition Appeal Tribunal (CAT) has approved our client, Mr Justin Gutmann, as class representative in his landmark standalone claim for abuses of dominance by the South Western and Southeastern rail franchises. The claims aim to put a stop to (...)

The EU Court of Justice establishes in a long-awaited ruling conditions under which the victim of a competition law infringement may seek compensation from a subsidiary of the perpetrator (Sumal / Mercedes Benz Trucks España)
Herbert Smith Freehills (Brussels)
On 6 October 2021, the European Court of Justice (“ECJ”) sitting in Grand Chamber clarified the notion of “undertaking” for the purposes of EU competition law in a long-awaited ruling (Case C-882/19, Sumal). The judgment establishes the possibility for the victim of a competition law infringement (...)

The EU Court of Justice broadens the scope of follow-on damage claims by permitting actions against the subsidiaries of companies which have been found to have infringed competition law (Sumal / Mercedes Benz Trucks España)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Brussels)
On 6 October 2021, the CJEU issued its judgment in Case C-882/19, Sumal, S.L. v Mercedes Benz Trucks España, S.L. (EU:C:1987:418), and confirmed that follow-on damages actions can be brought against subsidiaries of companies found to have infringed EU competition law. The victim of an (...)

The EU Court of Justice issues a preliminary ruling clarifying the single economic unit doctrine in private enforcement providing an analysis that has far-reaching consequences on future damages claims across the EEA (Sumal / Mercedes Benz Trucks España)
CEU San Pablo University (Madrid)
Abstract: The determination of the liability of a subsidiary for the anticompetitive conduct of its parent company ignited, long time ago, a sharp debate between those advocating for the single economic unit doctrine and those supporting the corporate separability doctrine. This paper, after (...)

The EU Court of Justice confirms that follow-on damages actions can be brought against subsidiaries of companies found to have infringed EU competition law (Sumal / Mercedes Benz Trucks España)
Norton Rose Fulbright (Brussels)
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Covington & Burling (Brussels)
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Freshfields Bruckhaus Deringer (Brussels)
On 6 October 2021, a preliminary ruling of the Court of Justice of the European Union (“CJEU”) in Sumal confirmed that follow-on damages actions can be brought against subsidiaries of companies found to have infringed EU competition law. This note briefly analyzes the judgment and the (...)

The EU Court of Justice holds that a victim of anticompetitive conduct is entitled to seek damages from the subsidiary of an infringing parent company (Sumal / Mercedes Benz Trucks España)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
In its judgment of 6 October 2021, following a reference by the Provincial Court of Barcelona, the Court of Justice of the EU (CJEU) held that a victim of anti-competitive conduct is entitled to seek damages from the subsidiary (not referred to in the infringement decision) of an infringing (...)

The UK Competition Appeal Tribunal certifies a well-publicized class action litigation against a financial services company (Merricks / Mastercard)
Shearman & Sterling (London)
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Shearman & Sterling (London)
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Shearman & Sterling (Brussels)
The U.K. Competition Appeal Tribunal (CAT) last week certified the well-publicized Mastercard class action litigation. In our previous article (See Chris Collins, Elvira Aliende Rodriguez, Jonathan Swil, Ozlem Fidanboylu, The UK Supreme Court gives guidance on collective proceedings in (...)

The UK Competition Appeal Tribunal approves the first application for a collective proceedings order under the competition class action regime (Merricks / Mastercard)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
On 18 August 2021 the Competition Appeal Tribunal (CAT) approved the first application for a collective proceedings order (CPO) under the UK’s competition class action regime introduced in 2015, in Walter Hugh Merricks CBE v Mastercard Incorporated and Others. The application was initially (...)

The EU Court of Justice hands down a judgment following a request for a preliminary ruling on the interpretation of Article 7(2) of 1215/2012 on the jurisdiction, recognition, and enforcement of judgments in civil and commercial matters (RH / Volvo)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 15 July 2021, the Court of Justice of the European Union (“ECJ”) handed down a judgment following a request for a preliminary ruling on the interpretation of Article 7(2) of 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels (...)

The German Federal Court of Justice decides that the bundling of claims was admissible through a legal service provider causing the judgment to receive a lot of attention from the competition litigation community (Air Berlin)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
Germany up to this point does not offer claimants a true US- or UK-style class action regime – a situation that is felt especially in the context of seeking compensation for cartel damages. Claimants have therefore found other ways to join forces and bundle their claims. The most notable method (...)

The Milan Court of Appeal rules on the probatory value of the Competition Authority’s findings in follow-on actions for damages (Vodafone)
Van Bael & Bellis (Brussels)
On 18 June 2021, the Court of Appeal of Milan issued a judgment in a damages action initiated against telecommunications provider Vodafone. This case stemmed from an investigation carried out by the Italian competition authority (“ICA”) into an abusive margin squeeze by Vodafone on the market for (...)

The US Court of Appeals for the Ninth Circuit clarifies class certification standards in an antitrust appeal (Olean Wholesale Grocery / Bumble Bee Foods)
Jones Day (San Francisco)
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Jones Day (San Francisco)
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Jones Day (Irvine)
The Ninth Circuit approved use of statistical analysis that relies on averaging but reversed class certification because the district court failed to resolve whether more than a de minimis number of putative class members were injured. On April 6, 2021, in Olean Wholesale Grocery Coop. v. (...)

The UK Court of Appeal confirms that collective proceedings’ funding arrangements are not damages-based agreements (Trucks Cartel)
Ashurst (London)
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Ashurst (London)
On 5 March 2021, the Court of Appeal upheld a decision of the Competition Appeal Tribunal ("CAT") that the funding arrangements in place in two collective proceedings arising from the Trucks cartel are not damages-based agreements ("DBAs"). What you need to know - key takeaways The decision (...)

The UK Court of Appeal dismisses a request for appeal as the Tribunal’s funding judgment does not fall within the ambit of section 49(1A) of the Competition Act (Trucks Cartel)
Hausfeld (London)
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Hausfeld (London)
Following a rolled-up hearing comprising a panel of three judges sitting as both the Court of Appeal and the Divisional Court, a judgment earlier this month has provided helpful clarity on two important aspects relating to the collective proceedings regime: (i) the extent to which litigation (...)

The Amsterdam Court of Appeal accepts jurisdiction regarding a damages claim in a case of abuse of dominance in the Greek beer market (Macedonian Thrace Brewery / Athenian Breweries / Heineken)
KPN (Amsterdam)
On 16 February 2021, the Amsterdam Court of Appeal (Court of Appeal) reversed a judgment of the Amsterdam District Court (District Court) in which the District Court declined jurisdiction in the damage claims brought by the Macedonian Thrace Brewery S.A. (MTB) against Athenian Brewery S.A. (AB) (...)

The Amsterdam Court of Appeal rules that Dutch courts have jurisdiction over damages claim resulting from an abuse of dominance on the Greek beer market (Macedonian Thrace Brewery / Athenian Breweries / Heineken)
European Court of Justice (Luxembourg)
On 16 February 2021, the Amsterdam Court of Appeal overturned the Amsterdam District Court’s ruling declining jurisdiction over the damages claim brought by MacedonianThrace Brewery (“MTB”) against Heineken’s subsidiary Athenian Breweries (“AB”). In 2014, the Hellenic Competition Commission (“HCC”) (...)

The German Federal Court of Justice rules in a private damages claim action concerning the German track cartel that lump-sum cartel damages clauses of 5% and up to 15% are permissible
Ashurst (Frankfurt)
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Ashurst (Munich)
In a decision of 10 February 2021, published at the end of April 2021, the German Federal Court of Justice ("FCJ") ruled in a private damages claim action concerning the German track cartel that lump-sum cartel damages clauses of 5% (as in the case at hand) and, more generally, of up to 15% (...)

The Czech Supreme Court lodges a request for a preliminary ruling regarding evidence disclosure under the EU Damages Directive
Bird & Bird (Prague)
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Bird & Bird (Prague)
The Czech Supreme Court lodged a request for a preliminary ruling (Case C-57/21) on 1 February 2021 regarding evidence disclosure under the EU Damages Directive 2014/104/EU. In the proceedings before Czech courts, a privately-owned transportation company RegioJet a.s. sued the state-owned (...)

The UK Supreme Court remands a £14 billion class-action lawsuit against a credit card company back to the Competition Appeal Tribunal (Merricks / Mastercard)
Government Legal Department (London)
On 11 December 2020, the UK’s Supreme Court sent a planned £ 14 billion class action lawsuit against Mastercard back to the Competition Appeal Tribunal (“CAT”) for review. This is the first collective proceedings case of this kind to reach the Supreme Court and it addresses important questions (...)

The UK Supreme Court receives actions from consumers and small businesses to seek redress for price-fixing and abuses of dominant power in the financial services sector (Merricks / Mastercard)
Hausfeld (London)
In 2015, the legislation introducing a UK collective litigation procedure for competition claims came into force – enabling consumers and small businesses to seek redress for the anti-competitive behaviours of price fixing and abuses of dominant power. Five years later, and such a collective (...)

The UK Supreme Court dismisses the appeal of a financial services company, by upholding the decision of the Court of Appeal which in turn has a significant impact on future national collective proceedings (Merricks / Mastercard)
White & Case (London)
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White & Case (London)
In a landmark judgment (and in unusual circumstances), the UK Supreme Court has held that the ongoing Merricks v Mastercard case should be referred back to the Competition Appeal Tribunal (CAT). Not only is this a step towards Merricks’ claim that interchange fees were "an invisible tax on UK (...)

The UK Supreme Court rules that a prominent collective proceedings case should be referred back to the Competition Appeal Tribunal (Merricks / Mastercard)
White & Case (London)
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White & Case (London)
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White & Case (London)
This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In a landmark judgment (and in unusual circumstances), the UK Supreme Court has held that the ongoing Merricks v Mastercard case should be referred back to the (...)

The UK Supreme Court gives antitrust class actions the green light to proceed to trial (Merricks / Mastercard)
Norton Rose Fulbright (London)
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Norton Rose Fulbright (London)
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Norton Rose Fulbright (London)
This article has been nominated for the 2022 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The recent UK Supreme Court ruling in Merricks v Mastercard has important implications for UK collective actions for competition law infringements. The landmark (...)

The UK Supreme Court hands down a landmark judgment, finding that the Competition Appeal Tribunal incorrectly rejected an application for certification to bring collective proceedings (Merricks / Mastercard)
Bird & Bird (London)
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Bird & Bird (London)
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Bird & Bird (London)
The UK Supreme Court has handed down a landmark judgment, finding that the Competition Appeal Tribunal (CAT) incorrectly rejected an application for certification to bring collective proceedings. This decision sets out important clarifications on the framework to be applied by the CAT when (...)

The UK Supreme Court hands down a significant judgment relating to the certification of a £14bn opt-out competition collective action brought against a credit card company (Merricks / Mastercard)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
On 11 December 2020 the Supreme Court handed down a very significant judgment relating to the certification of a £14bn opt-out competition collective action brought by Walter Merricks against Mastercard, in respect of losses alleged to have resulted from the use of anti-competitive multilateral (...)

The UK Supreme Court dismisses a credit card company’s appeal against the Court of Appeal’s granting of a collective proceedings order (Merricks / Mastercard)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
Earlier today the Supreme Court handed down its hotly-anticipated judgment regarding the certification of an opt-out competition collective action brought by Walter Merricks against Mastercard. The claim is seeking £14bn in damages on behalf of some 46.2 million UK consumers, in respect of (...)

The UK Supreme Court lowers the bar for certification of class actions when giving its judgment against a financial services company (Merricks / Mastercard)
Hogan Lovells (London)
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Hogan Lovells (London)
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Addleshaw Goddard (London)
In a key decision, the UK Supreme Court has given guidance on the threshold for certifying a class action for breach of competition law. The Court’s judgment in Mastercard v Merricks will make it easier to obtain class certification and will likely encourage a significant increase in class (...)

The UK Supreme Court dismisses the appeal of a financial services company in a class action related to an alleged overcharging of interbank fees (Merricks / Mastercard)
Covington & Burling (London)
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Covington & Burling (London)
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Covington & Burling (Brussels)
The UK Supreme Court has today ruled in favour of Walter Merricks, the former head of the UK Financial Ombudsman Service., in a hotly-anticipated judgment in the first opt-out competition class action brought in the UK. Background Mr Merricks is the proposed class representative for 46.2 (...)

The UK Supreme Court clarifies the low bar for class action certification (Merricks / Mastercard)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (London)
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Skadden, Arps, Slate, Meagher & Flom (London)
On 11 December 2020, the U.K. Supreme Court (the Court) handed down its much-awaited ruling in Merricks v Mastercard, dismissing Mastercard’s appeal against the English Court of Appeal’s April 2019 decision in a 3-2 ruling. The main aspects of the decision are explained below: This ruling (...)

The UK Supreme Court issues a judgment which provides guidance on how the CAT may consider the question of certification for collective proceedings (Merricks / Mastercard)
Frontier Economics (London)
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Frontier Economics (London)
This article has been nominated for the 2022 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The Future of collective proceedings in the UK In the Supreme Court’s leading judgment in Merricks, the concept of relative suitability was found to be a key (...)

The UK Supreme Court hands down a judgment regarding a class action for follow-on damages (Merricks / Mastercard)
Bird & Bird (London)
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Bird & Bird (London)
Introduction On the 11th December 2020, the UK Supreme Court (“SC”) handed down its judgment in the case between Walter Hugh Merricks, CBE (“Merricks”) and Mastercard Incorporated (“Mastercard”). The judgment concerns Merricks’ Collective Proceedings Order (“CPO”) application to pursue a class action (...)

The UK Supreme Court gives guidance on collective proceedings in competition appeal tribunal in the financial services sector (Merricks / Mastercard)
Shearman & Sterling (London)
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Shearman & Sterling (Brussels)
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Shearman & Sterling (London)
The Supreme Court has handed down its judgment in the case which concerned the test for the certification of collective proceedings within the context of a follow-on damages claim in the Competition Appeal Tribunal (CAT). The Supreme Court has dismissed Mastercard’s appeal; the case will now go (...)

The UK Supreme Court hands down an important judgment, allowing a £14 billion opt-out collective proceeding (Merricks / Mastercard)
Oxera (Oxford)
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Oxera (London)
The long-awaited UK Supreme Court judgment in Mastercard v Merricks (‘the Judgment’) was handed down last Friday morning. The Judgment allows a £14bn opt-out collective proceeding to proceed. The application for a collective proceeding, launched by Walter Hugh Merricks CBE in 2016, is the second (...)

The UK Supreme Court lowers the bar on certification for collective actions by dismissing a credit card company’s appeal (Merricks / Mastercard)
Ashurst (London)
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Ashurst (London)
In a highly anticipated ruling, the UK Supreme Court has dismissed Mastercard’s appeal against the principles established by the Court of Appeal (on appeal from the UK’s Competition Appeal Tribunal ("CAT")) in relation to the approval of class actions by the CAT. The case will now be remitted to (...)

The EU Court of Justice rules in favor of domestic undertakings, allowing them to sue Big Tech companies (Booking.com)
Hungarian Competition Authority (Budapest)
Amazon, Facebook, Google, Apple, Booking.com – domestic undertakings can also sue foreign ‘giants’ in Hungarian courts* The Court of Justice of the European Union adopted a decision which is significant and favourable for Hungarian undertakings as well: even the largest foreign platforms can be (...)

The UK Court of Appeal clarifies the ability of parties that settle EU Commission antitrust investigations to challenge the Commission’s findings in follow-on damages actions (Trucks Cartel)
Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
The Court of Appeal has handed down an important judgment clarifying the ability of parties that settle European Commission (Commission) antitrust investigations to challenge the Commission’s findings in follow-on damages actions. The judgment concerns an appeal relating to a preliminary issue (...)

The UK Court of Appeal dismisses an appeal relating to the evidential weight to be given to recitals to an EU Commission infringement decision issued under the settlement procedure (Trucks Cartel)
Ashurst (London)
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Ashurst (London)
On 11 November 2020, the Court of Appeal emphatically dismissed an appeal brought by five truck manufacturers against a judgment of the Competition Appeal Tribunal ("CAT") handed down in March 2020 relating to the evidential weight to be given to recitals to a European Commission infringement (...)

The UK Supreme Court hands down a judgment in a competition damages lawsuit and makes key observations on when a judicial decision of the EU courts is binding in other proceedings (Secretary of State for Health / Servier Laboratories)
Shearman & Sterling (Brussels)
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Shearman & Sterling (London)
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Financial Conduct Authority (London)
Holds Findings Made by European Courts Cannot Be Relied on in Different Context in Other Proceedings On November 6, 2020 the U.K. Supreme Court handed down a judgment relating to the Servier U.K. competition damages litigation, in which it made key observations on when a judicial decision of (...)

The Austrian Supreme Court holds that the concept of ‘causal link’ in damages actions brought for a breach of Articles 101/102 TFEU is a mere ‘factual’ one in a judgment concerning the elevator cartel (Otis II)
European Court of Justice (Luxembourg)
1. Factual and legal background By judgment of 21 October 2020 in Case 9 Ob 86/19s, the Austrian Supreme Court acting as appellate court in civil law matters (Oberster Gerichtshof als Rekursgericht in Zivilrechtssachen) ruled, after having resumed proceedings upon referral back of the case by (...)

The German Federal Court of Justice rules on passing-on defense in damages claims proceedings following a sanctioned cartel in the rail market (Rail cartel)
Van Bael & Bellis (Brussels)
In a recently published judgment of 23 September 2020, the German Federal Court of Justice (“FCJ”) ruled once again on the private damages claims of a public transport company following on from the Federal Cartel Office’s rail track cartel decision (see VBB on Competition Law, Volume 2012, No. 7 (...)

The EU Court of Justice AG Saugmandsgaard Øe considers that the special jurisdiction rule for tort disputes under Brussels I Bis applies to civil liability actions based on an infringement of competition law (Wikingerhof / Booking.com)
European Court of Justice (Luxembourg)
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Van Bael & Bellis (Brussels)
On 10 September 2020, Advocate General Saugmandsgaard Øe rendered his non-binding opinion in the context of a preliminary reference request from the German Federal Court of Justice on the interpretation of Article 7(2) of Regulation 1215/2012 (“Brussels I Bis”). This Article provides that in (...)

The Polish Competition Authority clarifies the procedure for individuals injured by competition law infringements to seek damages in court
Polish Competition Authority (Warsaw)
Have you suffered a loss due to anti-competitive practices? You may claim compensation* Individuals injured by anti-competitive practices may seek redress in the courts. President of UOKiK Tomasz Chróstny reminds that it is of no relevance to the case whether the decision on legal infringement (...)

The EU Commission provides helpful guidance to national judges on the disclosure of confidential information in competition law private enforcement cases
Hogan Lovells (Milan)
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Hogan Lovells (Milan)
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Hogan Lovells (Milan)
On 20 July 2020 the European Commission has adopted a non-binding Communication providing guidance to national judges on how to handle the disclosure of confidential information in proceedings for competition law private enforcement. The Communication, which contains a non-binding definition (...)

The EU Commission adopts guidance for national courts when handling disclosure of confidential information in proceedings for the private enforcement of EU competition law
European Commission - DG COMP (Brussels)
Antitrust: Commission adopts guidance for national courts when handling disclosure of confidential information* The European Commission has adopted a Communication on the protection of confidential information by national courts in proceedings for the private enforcement of EU competition law. (...)

The EU Commission adopts Communication on the protection of confidential information in follow-on damages actions
European Court of Justice (Luxembourg)
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Van Bael & Bellis (Brussels)
On 20 July 2020, the European Commission (the “Commission”) adopted a communication on the protection of confidential information by national courts in follow-on damages proceedings (the “Communication”). The Damages Directive provides that national courts should have the ability to order (...)

The EU Commission adopts guidance for national courts when handling disclosure of confidential information
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
The European Commission has adopted a communication on the protection of confidential information by national courts in proceedings for the private enforcement of EU competition law (Communication). The adoption follows a public consultation launched by the Commission last year inviting (...)

The US Congress approves the renewal and permanent extension of the Antitrust Criminal Penalty Enhancement and Reform Act
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On June 25, 2020, Congress approved the renewal and permanent extension of the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA or “the Act”), which limits the civil damages exposure of companies that cooperate with the Department of Justice (DOJ) in selfreporting their own (...)

The Prague Municipal Court terminates private damages proceedings concerning harm caused by an interior design cartel (Hyundai Motor Manufacturing Czech / Wiesner-Hager Project / Artspect / Iridium)
Skils (Prague)
Following a settlement the Municipal Court in Prague, on 26 May 2020, eventually terminated proceedings concerning follow-on cartel damages claim lodged by Hyundai Motor Manufacturing Czech originally against three companies, namely Wiesner-Hager Project, Artspect and Iridium. Background to (...)

The UK High Court issues guidance on the balancing of conflicting interest in a case involving the protection of a Big Tech’s confidential and technical information on its search algorithms (Foundem / Google)
Hausfeld (London)
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Hausfeld (London)
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Hausfeld (London)
Introduction There is an emerging trend in competition damages cases in England for the majority of documents to be disclosed into so-called “confidentiality rings.” These restrictive confidentiality procedures can result, in certain instances, in the parties themselves being precluded from (...)

The Regional Court of Munich dismisses follow-on damages claims totaling €600 million against participants in a truck cartel (Trucks Cartel)
Court of First Instance of Namur (Namur)
On 7 February 2020, the Regional Court of Munich (the “Court”) dismissed a follow-on claim for damages brought by litigation vehicle Financial right, a registered legal services company. The claim followed a 2016 fining decision of the European Commission (the “Commission”) against participants in (...)

The Amsterdam Court of Appeal rules that cartel damages claims filed by a claim vehicle are not time-barred under Spanish, Finnish, and Swedish law in the chemicals market (CDC / Kemira)
KPN (Amsterdam)
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Bird & Bird (The Hague)
On 4 February 2020, the Amsterdam Court of Appeal (“Court of Appeal”) ruled that cartel damage claims that were filed by claim vehicle CDC against Kemira were not time-barred under Spanish, Finnish and Swedish law. The Court of Appeal also dismissed Kemira’s challenge to the way in which the (...)

The German Federal Court of Justice defines in line with EU case law the substantive and procedural requirements for establishing causality in cartel-related damages actions (Rail Cartel)
University of Vienna (Vienna)
By its ruling in Rail Cartel II (Schienenkartell II), delivered on 28 January 2020, the German Federal Court of Justice (Bundesgerichtshof) has clarified the respective prerequisites to establish, on the one hand, causality which gives rise to liability (haftungsbegründende Kausalität), and on (...)

The German Federal Court of Justice overrules a judgement of a Higher Regional Court concerning a follow-on damages claim which established the existence of a bid rigging cartel in the rail track sector and imposed a fine amounting to €98 million on eight companies (Schienenkartell II)
Court of First Instance of Namur (Namur)
On 28 January 2020, the German Federal Court of Justice (“FCJ”) overruled a judgment of the Thuringian Higher Regional Court (see VBB on Competition Law, Volume 2017, No. 6) concerning a follow-on damages claim. The claim followed a 2013 fining decision of the Federal Cartel Office (“FCO”), which (...)

The Court of Milan decides that damages cannot be given to a company’s director based on simul stabunt simul cadent clauses
Portolano Cavallo (Milan)
Simul stabunt simul cadent clauses are clauses generally included in the by-laws of Italian companies whereby the termination of the office of one or more directors triggers termination of all the other directors’ offices. Such clauses are usually aimed at maintaining the same management (...)

The Barcelona Court of Appeal partially upholds the appeal brought by several envelope manufacturers that had been sanctioned by the Competition Authority for their participation in the infamous envelope cartel (Planeta / Misiones Salesianas / Bankoa...)
Cuatrecasas (Barcelona)
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Cuatrecasas (Barcelona)
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Cuatrecasas (Barcelona)
On January 10, 2020, the Barcelona Court of Appeal (Judgment 45/2020; Appeal No 1965/2018) partially upheld the appeal brought by several undertakings that had been sanctioned by the Spanish National Commission of Markets and Competition (hereinafter, “CNMC”) in case S/0316/10 –Sobres de papel, (...)

The EU Court of Justice clarifies the eligibility requirements of claims for indirect damages caused by a violation of Art. 101 TFEU (Otis / Land Oberösterreich)
University of Liège
The parties Otis GmbH, is an Austria based manufacturer and provider of maintenance services for elevators and escalators. Taken over in 1969, they are now a subsidiary of the American Otis Elevator Company Corp. Schindler (Schindler Liegenschaftsverwaltung GmbH and Schindler Aufzüge und (...)

The Ontario Government introduces Bill 161 with amendments to the process for class actions and private enforcement
Fasken Martineau (Toronto)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Since the Supreme Court of Canada’s trilogy of decisions in Pro-Sys, Sun-Rype and Infineon, plaintiffs have had considerable success certifying private (...)

The Spanish Provincial Court of Valencia annuls a lower court’s judgment and argues in favor of the principle of personal liability in a claim for damages in a truck cartel case (Man Truck & Bus Iberia / Trucks Cartel)
Bird & Bird (Madrid)
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Ecija & Asociados (Madrid)
On 5 December 2019, the Provincial Court of Valencia upheld the appeal lodged by MAN Truck & Bus Iberia S.A. (a Spanish subsidiary of the worldwide truck producer MAN) against the Judgment of a lower court admitting the possibility to claim for damages from the Spanish subsidiary where the (...)

The Canadian Supreme Court clarifies several procedural questions relating to class actions, with potential significance to class actions in the UK and EU (Pioneer / Godfrey)
Allen & Overy (Washington)
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Allen & Overy (Brussels)
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Cohen & Gresser (Washington D.C.)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On September 20, 2019, the Supreme Court of Canada (“SCC”) issued a landmark antitrust class action decision in Pioneer Corp. v Godfrey which clarified several (...)

The US Court of Appeals for the DC Circuit affirms the denial of class certification for failing to satisfy the requirement for predominance (In re Rail Freight Fuel Surcharge Antitrust Litigation)
Paul Weiss (New York)
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Paul Weiss (Washington)
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Paul Weiss (Washington)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On August 16, 2019, the United States Court of Appeals for the District of Columbia Circuit affirmed the denial of class certification in In re Rail Freight Fuel (...)

The EU Court of Justice provides guidance on the interpretation of the place of the harmful event under Regulation Brussels I bis for the determination of alternative grounds of jurisdiction in pan-European cartel damages cases (Tibor-Trans / DAF Trucks)
CDC Cartel Damage Claims (Brussels)
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European Commission - DG COMP (Brussels)
With its judgment of 29 July 2019 in Case C-451/18,Tibor-Trans (the ‘Judgment’), the EU Court of Justice (the ‘CJEU’) clarified the competence of national courts to hear damage actions relating to pan-European infringements of Art. 101 TFEU under Regulation 1215/2012 Brussels I bis (in short (...)

The EU Court of Justice rules on jurisdiction in private damages actions for infringement of competition law in absence of a contractual link between parties to the cartel (Tibor-Trans / DAF Trucks)
Court of First Instance of Namur (Namur)
On 29 July 2019, the Court of Justice of the European Union (the “ECJ”) handed down a judgment in which it held that a domestic court in an EU Member State has jurisdiction to rule on a follow-on competition damages claim even when no direct contractual link exists between the participant to a (...)

The EU Commission consults stakeholders on guidance for national courts when handling disclosure information in proceedings for the private enforcement
European Commission - DG COMP (Brussels)
Antitrust: Commission consults stakeholders on guidance for national courts when handling disclosure information* The European Commission is inviting comments on a draft communication to assist national courts in dealing with requests to disclose confidential information in proceedings for the (...)

The EU Commission adopts guidelines on passing-on for national courts
Hausfeld (London)
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Hausfeld (Düsseldorf)
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Hausfeld (Berlin)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 1 July 2019, the European Commission (the “Commission”) adopted guidelines designed to provide national courts with guidance in estimating the share of (...)

The EU Commission issues guidelines for national courts on how to calculate the pass-on of price overcharges related to infringements of EU antitrust rules
Callol, Coca & Asociados (Madrid)
The European Commission has issued guidelines for national courts on how to estimate the passing-on of overcharges to indirect purchasers of goods and services affected by infringements of Articles 101 and 102 TFEU. The guidelines have been issued pursuant to Article 16 of the Antitrust Damages (...)

The US District Court for the Northern District of Texas dismisses the first blockchain antitrust case for alleged abuse of dominance position related to bitcoin (Gallagher / The Bitcoin Foundation)
Stanford University
We often talk about “history books” as if such things still existed, or mattered. Oh well, for what it’s worth, let me discuss the first (U.S.) case of blockchain antitrust. We long thought United American Corp. v. Bitmain was the one (read). In this case (filed in December 2018), United American (...)

The Italian Supreme Court clarifies the evidentiary value of a competition infringement established by the Bank of Italy in follow-on actions (Bosco / Banca Popolare di Bergamo)
Giannino SI (Monserrato)
Introduction By the judgment handed down in Bosco v Banca Popolare di Bergamo, the Italian Court of Cassation has considered the evidentiary value of a decision made by the Bank of Italy concerning an anti-competitive practice in the banking sector. The question addressed by the Court of (...)

The US Supreme Court holds that App store consumers are direct purchasers of the Big Tech company and are thus not precluded from suing for damages under federal antitrust law (Apple / Pepper)
Bona Law (San Diego)
This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. This is part two of an article about the Supreme Court’s 2019 decision in Apple v. Pepper, the classic antitrust cases of Illinois Brick and Hanover Shoe, (...)

The US Supreme Court rejects an attempt to block consumer claims against a Big Tech company under indirect purchaser rule (Apple / Pepper)
Constantine Cannon (New York)
Apple v. Pepper: Supreme Court Rejects Attempt to Block Consumer Claims Under Indirect-Purchaser Rule* The Supreme Court on Monday issued a much-anticipated decision in the Apple v. Pepper case, where iPhone owners are accusing Apple of monopolizing the retail market for iOS applications, or (...)

The US Supreme Court holds that the claims of consumers purchasing apps from a Big Tech app store may proceed as they are direct purchasers of the Big Tech company (Apple / Pepper)
Covington & Burling (Washington)
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Covington & Burling (Washington)
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Covington & Burling (Washington)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Appellate and Supreme Court On May 13, 2019, the Supreme Court (“the Court”) announced its 5-4 decision in Apple, Inc. v. Pepper, permitting iPhone users to (...)

The US Supreme court reaffirms the "direct purchaser" rule for private claims under federal antitrust laws but also allows for monopolization claims against a mobile app store owner (Apple / Pepper)
Clifford Chance (Washington)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On May 13, 2019, the U.S. Supreme Court reaffirmed that private claims under the federal antitrust laws cannot be brought by "indirect purchasers" who did not (...)

The US Supreme Court affirms the right of app purchasers to sue an app company for monopolization under the indirect-purchaser rule of Illinois Brick as a rule of contractual privity rather than a rule of proximate cause (Apple / Pepper)
Willkie Farr & Gallagher (New York)
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Willkie Farr & Gallagher (New York)
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Willkie Farr & Gallagher (New York)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In Apple Inc. v. Pepper, a 5-4 Supreme Court affirmed the right of app purchasers under the indirect-purchaser rule of Illinois Brick Co. v. Illinois to sue (...)

The US Supreme Court rules that purchasers of apps from a Big Tech company’s online store can bring an antitrust suit for overcharges (Apple / Pepper)
Hausfeld (New York)
On May 13th, the U.S. Supreme Court, in a 5-4 decision, affirmed the Ninth Circuit’s decision denying a motion to dismiss a consumer class action claiming that Apple monopolized the after-market in its sales of iPhone software applications (hereinafter “apps”) by charging app developers a 30% fee (...)

The US Supreme Court rejects an attempt to block consumer claims against a Big Tech company under the indirect-purchaser rule (Apple / Pepper)
Jones Day (Washington)
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Jones Day (Houston)
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Jones Day (Los Angeles)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In May 2019, the U.S. Supreme Court issued a 5–4 decision in Apple v. Pepper, one of the Court’s most significant antitrust rulings of the last several years. In a (...)

The US Supreme Court increases the risk that online marketplaces with exclusive rights to third-party products will not have a defense under the “indirect purchaser” doctrine (Apple / Pepper)
Baker Botts (San Francisco)
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Baker Botts (Washington)
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Baker Botts (Washington)
On May 13, 2019, the U.S. Supreme Court issued a major antitrust decision in Apple v. Pepper, which could have far-reaching implications for retailers and platforms accused of monopolistic conduct. For example, the case increases the risk that any online marketplace with exclusive rights to (...)

The Milan Court provides guidance on the application of the Italian Code of Civil Procedure to a private enforcement action following the decision of the EU Commission imposing fines on a truck cartel (Torchiani / Tecnofoodpack / Iveco)
White & Case (Milan)
1.- Introduction After the adoption of the European Commission Decision, on 19 July 2016, imposing fines of over 2.9 billion Euro on the most important truck manufacturers (i.e. the so-called case AT.39824 – Trucks), a copious series of antitrust damages actions have been promoted all over (...)

The UK Court of Appeal overturns a Competition Appeal Tribunal’s decision in landmark collective action (Merricks / Mastercard)
Court of First Instance of Namur (Namur)
On 16 April 2019, the UK Court of Appeal ruled that the Competition Appeal Tribunal (“CAT”) had incorrectly refused to certify a major collective action brought against Mastercard. The collective action seeks approximately GBP 14 billion in damages on behalf of an estimated 46.2 million customers (...)

The UK Court of Appeal grants the appeal by over 46 million consumers against a financial company in relation to alleged overcharging of interbank fees (Merricks / MasterCard)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (London)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. A recent Court of Appeal decision has reignited the prospects of a £14 billion class action against Mastercard. In a much-anticipated ruling, the court has (...)

The UK Court of Appeal confirms that the first claim under the UK’s flagship "opt-out" regime can proceed (Merricks / Mastercard)
Simmons & Simmons (London)
The action is based on the EU Commission’s finding that MasterCard’s EEA multilateral interchange fees (MIFs) breached Article 101(1) TFEU (see here for further details). That finding was upheld by the European Court of Justice (on appeal by MasterCard) on 11 September 2014 (see our further (...)

The UK Court of Appeal clarifies the collective proceeding regime in a private action against a credit card company (Merricks / MasterCard)
Blackstone Chambers (London)
Merricks v MasterCard: Collective Actions Reinvigorated* The Court of Appeal today gave its much-anticipated judgment in the application to bring collective proceedings against MasterCard: see Merricks v MasterCard Incorporated and others [2019] EWCA Civ 674. It is a major victory for the (...)

The UK Court of Appeal overturns a Competition Appeal Tribunal’s decision in favour of consumers in collective proceedings against a credit card company (Merricks / Mastercard)
Allegro Consulting (Brussels)
Walter Merricks v. Mastercard, Paving the Way for Economic Analysis in Class Actions* The England and Wales Court of Appeal has overturned the Decision of the United Kingdom Competition Appeals Tribunal (CAT) in the collective proceedings Walter Merricks v MasterCard, where final consumers are (...)

The UK Court of Appeal overturns a decision refusing a £14 billion class action against a financial services company (Merricks / MasterCard)
Hausfeld (London)
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Hausfeld (London)
On 16 April 2019, the UK Court of Appeal handed down what is undoubtedly the most significant ruling to date for the UK’s young collective actions regime. The Judgment in Merricks v Mastercard overturned the Competition Appeal Tribunal’s prior ruling refusing certification of Walter Merricks’ £14 (...)

The UK Court of Appeal overturns a Competition Appeal Tribunal’s decision refusing a £14 billion class action against a credit card company (Merricks / Mastercard)
Hausfeld (Washington)
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Hausfeld (New York)
Introduction Few would argue with the proposition that antitrust indirect purchaser class actions in the U.S. raise more difficult questions of commonality, impact, and manageability than direct purchaser class actions, even though there may have been harm sustained at both levels. Accordingly, (...)

The EU Court of Justice holds that national rules on limitation of antitrust damages claims may violate the principle of effectiveness (Cogeco / Sport TV Portugal)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
The European Court of Justice in Cogeco rejects a direct effect of the Damages Directive in the pre-implementation phase, but establishes that the principle of effectiveness may itself render national rules on limitation of antitrust damages claims ineffective. The European Court of Justice (...)

The EU Court of Justice holds that national rules on limitation of antitrust damages claims may violate the principle of effectiveness (Cogeco / Sport TV Portugal)
Sérvulo (Lisbon)
The first preliminary ruling on Directive 2014/104/EU: Case 637/17 Cogeco* Introduction With two major decisions, March 2019 was an interesting month with regard to the Court of Justice’s (also ‘ECJ’) case-law on private enforcement of competition law: Skanska (C-724/17) and Cogeco (C-637/17). (...)

The EU Court of Justice rules on the scope of a national limitation period in light of the Damages Directive (Cogeco / Sport TV Portugal)
Court of First Instance of Namur (Namur)
On 28 March 2019, the Court of Justice of the European Union (“ECJ”) ruled on a preliminary reference from a Portuguese court on the scope of the Portuguese limitation period in light of Directive 2014/104 on certain rules governing actions for damages under national law for infringements of the (...)

The Dutch Parliament passes legislation that will enable opt-out damages claims in relation to a broad range of causes of action including antitrust infringements and those based on violations of consumer, environmental, and data protection laws
Hausfeld (London)
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Hausfeld (London)
As part of a larger trend in Europe, the Dutch Parliament has passed legislation that will enable opt-out damages claims in relation to a broad range of causes of action, including antitrust infringements and those based on violations of consumer, environmental, and data protection laws. The (...)

The EU Court of Justice AG Kokott recommends that the EU Damages Directive not apply to proceedings that began in a Member State before the transposition of the Directive (Cogeco / Sport TV Portugal)
European Commission (Brussels)
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Gómez-Acebo & Pombo (Brussels)
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Basic-Fit (Hoofddorp)
Following the decision of the Portuguese Competition Authority finding that Sport TV had engaged in an abuse of dominance between 2006 and 2011, in February 2015, Cogeco, a Canadian cable company, brought an action for damages against Sport TV Portugal . Cogeco claimed that the EU Damages (...)

The EU Court of Justice sets aside General Court judgments granting damages for excessively long judicial proceedings (Gascogne / Kendrion / Plasticos Españoles)
Court of First Instance of Namur (Namur)
On 13 December 2018, the Court of Justice of the European Union (“ECJ”) delivered three judgments on separate appeals brought against judgments of the General Court (“GC”) by Gascogne Sack Deutschland (“Gascogne”), Kendrion and Plasticos Españoles (together with its parent company Armando Álvarez) in (...)

The US Supreme Court hears oral arguments to determine whether iPhone App Store customers are Apple direct purchasers in order to pursue the Big Tech monopoly claims (Apple / Pepper)
Wolters Kluwer (Chicago)
Will High Court allow consumers to pursue Apple Monopoly claims?* The Supreme Court heard oral arguments on November 26 in a suit alleging that the Ninth Circuit erred in holding that iPhone App Store customers were direct purchasers of those apps and had standing to sue Apple for the (...)

The EU Court of Justice holds that claims alleging abuse of dominance could come within the terms of a jurisdiction clause even where the clause did not expressly refer to claims based on competition law (Apple / MJA)
McCann FitzGerald (Dublin)
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McCann FitzGerald (Dublin)
Competition Disputes: Will a Jurisdiction Clause Govern Where They are Brought?* The European Court of Justice (CJEU) held recently in Apple Sales International v MJA acting as liquidator of eBizcuss.com that claims alleging abuse of a dominant position could come within the terms of a (...)

The EU Court of Justice rules that jurisdiction clauses subject to EU law may be enforced by Member States in actions for damages for abuse of dominance (Apple / MJA)
Cleary Gottlieb Steen & Hamilton (Paris)
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Cleary Gottlieb Steen & Hamilton (Paris)
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Cleary Gottlieb Steen & Hamilton (London)
European Court of Justice Issues Important Judgment Related to Jurisdiction Clauses for Antitrust Actions* In a recent judgment providing a preliminary ruling in the case, Apple Sales International et al. v. EBizcuss.com (C-595/17, October 24, 2018), the Court of Justice of the European Union (...)

The EU Court of Justice rules on the applicability of contractual jurisdiction clauses in the context of abuse of a dominant position, ruling that some competition law violations are more contract related than others (Apple / MJA)
Latham & Watkins (Brussels)
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Liège University (Liège)
With its judgment the European Court of Justice (‘ECJ’) confirms its previous case law indicating that the criterium to determine whether a competition law violation is covered by a contractual jurisdiction clause is the existence of a ‘contractual link’, adding that this is the case even when such (...)

The EU Court of Justice holds that a jurisdiction clause is not excluded when it does not expressly refer to disputes relating to liability resulting from an abuse of dominant position (Apple / MJA)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Paris)
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Arnold & Porter Kaye Scholer (Brussels)
Application of Jurisdiction Clauses to Competition Damages Actions Depends on Cause of Action* Summary The European Court of Justice (ECJ) recently ruled that a jurisdiction clause does not need to refer expressly to disputes arising from a breach of competition law where damages are claimed (...)

The EFTA Court renders a judgment on the limitation period for damages claims (Nye Kystlink / Color Group and Color Li)
Court of First Instance of Namur (Namur)
On 17 September 2018, the Court of Justice of the European Free Trade Association States (the “EFTA Court”) handed down its judgment in Nye Kystlink AS v Color Group AS and Color Line, Case E-10/17, answering preliminary questions asked by Norway’s Borgarting Court of Appeal (Borgarting (...)

The EU Commission publishes draft guidelines intended to give national courts guidance in determining the extent to which overcharges based on infringements of Art. 101 and 102 of the TFEU have been passed on to indirect customers, including final consumers
Hausfeld (Düsseldorf)
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Hausfeld (Berlin)
Following the European Directive 2014/104/EU on damages actions for breaches of EU antitrust law (“Damages Directive”), which strengthens the right to compensation for indirect customers of the cartelists, the European Commission (“Commission”) published draft guidelines intended to give national (...)

The EU Court of Justice clarifies jurisdiction in tortious claims and claims relating to acts of branches, which arise from competition infringements (Flylal-Lithuanian Airlines)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Brussels)
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Norton Rose Fulbright (Brussels)
On 5 July 2018, the CJEU handed down a judgment in response to a request for a preliminary ruling from the Lithuanian Court of Appeal in which it provided welcome clarifications of the interpretation of Articles 5(3) and 5(5) of Regulation No 44/2001 (Brussels I Regulation). These articles (...)

The EU Court of Justice clarifies territorial jurisdiction criteria for damages proceedings resulting from competition infringements (FlyLAL)
Court of First Instance of Namur (Namur)
On 5 July 2018, the Court of Justice of the European Union (ECJ) rendered a preliminary ruling on territorial jurisdiction in a long-running dispute brought by Lithuanian Airlines (“flyLAL”) against Air Baltic and Riga Airport. The case was referred to the ECJ by a Lithuanian court in order to (...)

The US Supreme Court accepts a claim as the opportunity to revisit its rules on antitrust claims by indirect purchaser (Apple / Pepper)
Amadeus (Madrid)
On June 18, 2018, the U.S. Supreme Court accepted Apple’s petition for certiorari in Apple Inc. v. Pepper, appealing the Ninth Circuit’s decision that Apple is, by contract, the exclusive distributor of iPhone applications (“apps”) through the online Apple App Store platform, from which consumers (...)

The Canadian Court of Appeal accepts additional defendants in a price-fixing class action against major banks (Mancinelli / Royal Bank of Canada)
Affleck Greene McMurtry (Toronto)
Court Of Appeal Adds Banks To FX Price Fixing Class Action* In overturning a lower court decision, the Ontario Court of Appeal ruled that TD Bank and BMO would be added as defendants in a price fixing class action against major banks. The case was Mancinelli v. Royal Bank of Canada. The (...)

The Canadian Court of Appeal clarifies the application of the discoverability principle and makes it easier for plaintiffs to add defendants (Mancinelli / Royal Bank of Canada)
Steve Szentesi Law Corporation (Vancouver)
Ontario Court of Appeal Makes It Easier For Plaintiffs to Add Defendants Under Competition Act Limitation Provision* The Ontario Court of Appeal recently issued a significant decision in Mancinelli v. Royal Bank of Canada, 2018 ONCA 544 (C.A.), in which the Court clarified the application of (...)

The EFTA Court clarifies the applicable legal regime for private enforcement and margin squeeze (Fjarskipti / Siminn)
Giannino SI (Monserrato)
Following a request for an advised opinion made by an Icelandic judge, the EFTA Court has handed down a judgement in the Fjarskipti v Siminn case touching on some procedural and substantive competition law issues. The EFTA Court clarified which are the rules that in the EFTA legal system apply (...)

The EU Commission proposes a harmonized approach to collective redress such as group or class actions
Skadden, Arps, Slate, Meagher & Flom (London)
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Skadden, Arps, Slate, Meagher & Flom (Frankfurt)
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Skadden, Arps, Slate, Meagher & Flom (London)
Despite 20 years of robust legislative activity in the field of consumer protection and the 2013 European Commission recommendation on collective redress mechanisms, a harmonized approach to collective redress such as group or class actions does not exist throughout the European Union. That may (...)