ARTICLES
« Back to ArticlesPlaintiff Recovery Actions - Competition Law Claims: Uneven Progress, Still
This article will review the latest developments that have taken place in the European Commission’s (Commission) anti-cartel enforcement work. It will then focus on claimant recovery actions in the UK and Europe and assess the channels for legal redress available to the victims of market fixing.
Settlement of DRAM
In May of this year the Commission settled its first cartel case. It imposed a €331 million fine on nine of the 10 cartelist companies which had been found guilty of coordinating prices of computer memory chips (the DRAMs case).[1] The investigation and final settlement of the case were facilitated by the employment of the Leniency Notice[2] and the Settlement Procedure,[3] which have been available since 2002 and 2008 respectively.
Under the terms of the Leniency Notice, Micron received full immunity from the fines because it was the first to inform the Commission of the illegal price collusion. The Settlement Procedure enables parties who are subject to cartel investigations to settle a case by admitting liability for their involvement in the cartel in exchange for a shorter administrative procedure and a reduction in fines.[4] This frees up the Commission’s resources to tackle other cartels. All of the parties to the memory chip cartel used the settlement procedure and were subsequently granted a 10 per cent discount from their fines.
The fines imposed by the Commission send a clear message to companies involved in price fixing: cooperating with the Commission pays off. The new Competition Commissioner (see below) described this first settlement decision as ‘another milestone in the Commission’s anti-cartel enforcement.’[5] He also stated:
The Settlement Procedure has proved to be an instrument that works well and I fully intend to make it as successful in our fight against cartels as the leniency instrument has been. Even though I cannot directly comment on them, I can tell you that there are several more settlements in the pipeline.
New competition commissioner
In February this year Joaquín Almunia, from Spain, was appointed the new EU commissioner for competition policy. In a speech delivered by Almunia at the European Competition Day in May, he addressed the issue of how to provide consumers and businesses with proper redress for damages they have incurred as a result of breaches of the competition rules. He spoke of the importance of developing an effective system of collective redress and accepted the findings of the White Paper of 2008 that too many victims of competition law infringements, both consumers and businesses, do not obtain the compensation they are entitled to under EU law.
With regards to private enforcement Almunia stated:
I am confident that a solution will ultimately be found that can be implemented into the legal cultures of all member states and that will guarantee real access to justice for all European consumers and businesses harmed by anti-competitive conduct.[6]
What remains unclear, however, is the nature and timing of such a solution. The Commission has, partly due to the Leniency Notice and the Settlement Procedure, made significant progress towards an efficient system to investigate and fine cartelist companies. In contrast, Europe wide legislation to improve access to collective redress for businesses and individuals who have been the victims of cartels victim still seems some way off. It should be remembered that none of the money collected from the cartelists in fines goes towards reimbursing the customers of the cartelists.
Private initiative for redress
The Commission and the UK Office of Fair Trading (OFT) see greater private initiative by competition law victims as a necessary compliment to their own public enforcement methods.[7] Facilitating private claims is an important issue because cartel damages actions are expensive and time-consuming. In the US contingency fees are available for lawyers; this, coupled with the opt-out class system, means that there are sufficient incentives in place for a vigorous claimant bar to have developed, which actively pursues claims on behalf of unidentified claimants.
There has been a reluctance, particularly on the part of the Commission, to introduce measures that could import the perceived excesses of the US system. The perceived excesses, one commentator suggests, derive from a suspicion of the prominent role of private entrepreneurial lawyers.[8] In reality, however, this is the driving force behind a well-funded and effective system of collective redress.
In the UK the OFT has proposed the introduction of increased incentives to promote private enforcement, such as the introduction of greater success fees. It is clear that further reforms to European Law and procedure are needed to assist and support greater take-up of private and civil damages claims against cartels. Many of these were discussed in response to OFT discussion papers and the 2008 White Paper, which followed on from the 2005 Green Paper on the subject. The Commission has now developed proposals for policy choices and specific measures that it considers would provide all victims of infringements of European competition law with more effective redress mechanisms than are available at present, in order that they can be fully compensated for the harm that they have suffered.
The Commission’s proposals are based on a model whereby compensation is paid through single damages for the harm suffered (including actual loss and loss of profit). Four specific proposals are:
•collective redress via representative actions and actions which consumers can opt into;
•a form of judge-controlled minimum disclosure of relevant evidence;
•Commission guidance on the calculation of damages; and
•making final infringement decisions of national competition authorities binding on national courts as proof of infringement.
The White Paper also makes suggestions in relation to limitation periods, costs, the standing of indirect purchasers, the fault requirement, damages and the protection of leniency submissions.
Representative actions
The Commission’s position on whether to introduce the opt-out class has been unclear. The outgoing Commissioner for Competition Neelie Kroes said in public that she does not believe that the opt-out procedure is appropriate at a European level. However, her consumer affairs counterpart, Meglena Kuneva, indicated that the idea may be worth considering in the context of consumer protection.
The proposals contained in the White Paper would allow representative actions from trade and consumer associations and state bodies, as well as opt-in collective actions. The former would allow such associations to then act on behalf of identified or, in limited cases, identifiable victims. These entities are either officially designated in advance or certified on an ad hoc basis in a given case by the member states. Under an opt-in system, each individual will have to actively join in the proceedings in order to have its interests represented.
In their analysis of the White Paper[9] Crompton and Fishman comment that these proposals fall far short of the Commission’s suggestions in the Green Paper and that some, such as the consumer group Which?, may see this as a missed opportunity to allow in an effective system of ‘class actions’ in Europe. Shrill critics of the opt-out[10] approach repeatedly warn of the dangers of a ‘litigation culture’. The reality is, however, that aside from being unable to raise insurance and funding, the very significant adverse costs of bringing any unmeritorious action remain a serious deterrent.
Disclosure
The main area where action at the European level would seem appropriate regards access to evidence. While there is general agreement that disclosure by the parties to the claim (and not by the public enforcement bodies) is the best way forward, there is no common view among the legal systems of the member states as to how this can best be achieved. Some member states have very few requirements for disclosure of information in their civil procedures. Claimants are left to rely on what they themselves can gather either internally or from public sources. This will usually not be sufficient to proceed very far with a claim in an area as complex as competition law.
At the other end of the scale, English law recognises an extensive obligation on the parties to litigation to disclose at an early stage – usually by listing the documents – all the information they may have which is relevant to the issues in dispute. This puts the parties on as level a playing field as possible, as far as access to evidence is concerned. The drawback is the cost (in both time and money) of the system.
Not only is the burden on the defendant cartelists greater, the need to review all of the disclosure documentation (often at the early stages of litigation) means that costs are raised for claimants too. Again, this could act as a serious disincentive to bring claims in all but the simplest of cases.
The Commission’s proposal in this area is relatively high-level. It has two main components: firstly, court-supervised disclosure of documents or categories of documents (presumably from both claimants and defendants) and secondly – although not presented as an information-disclosure measure – the proposed presumption that the full amount of the overcharge is passed through to the end user. Clearly this will alleviate the disclosure obligations on end-users, but is likely to increase them for potential claimants further up the distribution chain who would be required to overcome the same presumption.[11] This presumption, we suggest, requires further attention and guidance.
Damages
• A European perspective
In the White Paper, there is no guidance on the scope of damages or how to calculate them. Calculating damages is, in practice, the most difficult task for possible claimants. The paper merely states that victims must receive full compensation of the real value of the loss suffered, ie, the actual loss, the loss of profits and corresponding interest. The precise scope of damages will be codified later in European Community legislation to reflect the current position (as set out in the 2006 ECJ Manfredi[12] judgment).
The Commission also plans to draw up a guidance framework on how to calculate damages: for example, by including approximate methods of calculation or simplified rules on estimating the loss. It acknowledges that the exact calculation of damages is difficult and burdensome and encourages national courts to accept some form of damages estimation in place of a precise calculation of damages.[13]
The EU draft damages directive will be an important early decision for the new Competition Commissioner. He has undertaken to issue non-binding guidance on the qualification of cartel damages in order to assist the national courts. That guidance is due to be published later in 2010.
• A UK perspective
In their article, ‘Cartel Damages Claims’[14] Boylan and Woodgate assess the present law regarding the award of damages in the English courts in respect of cartel claims. They report that while there is yet to be an award made in this area, in 2007 the High Court resolved the outstanding question of whether exemplary damages or restitutionary remedies, including an account of profits are available in cartel damages actions. The High Court held that exemplary damages are not available in follow-on actions from Commission decisions. This is because, as the cartelist companies have already been fined, to impose further sanction in the form of exemplary damages would mean punishing them twice for the same offence.[15]
The article goes on to explain how the Court of Appeal refused to allow restitutionary remedies and an account of profits in cartel damages actions.[16] This was a significant issue because such a remedy would allow the claimant to circumvent the passing on defence and recover the profits made by the defendant.
The UK position therefore is now clear: ‘Only compensatory damages are available in a cartel damages claim. Although the European Court of Justice (ECJ) has confirmed that a claim in compensation includes a claim for loss of profits in the event that a claimant can show that the operation of the cartel had, for example, a dampening effect on demand due to the higher prices being charged, this is likely to be difficult to prove.’[17]
A mutual recognition of judgments
Infringement decisions of the Commission can be relied upon as binding proof in civil proceedings for damages. This has been the case for many years. The White Paper proposes that the decisions of national competition authorities within the European Competition Network based on article 101 or 102 TFEU should be binding on the national courts. Legislative changes which reflect this are yet to be introduced in this area.
Standing
• Indirect purchasers in the US
The issue of indirect purchaser standing is a hot topic in the US at present. The debate focuses around whether third parties (ie, clients of cartel customers) should be allowed to bring claims or whether their claims are always going to be too remote to justify? Under US law indirect purchasers do not have standing in the federal courts. This means that there is a risk that the direct purchaser is enriched by an award of damages despite having passed on the overcharge.
The rationale behind this policy is that by limiting the class of claimants to direct purchasers the deterrence effect of private antitrust actions will be maximised. This is because the direct purchasers will have the greatest incentives to sue and superior resources to invest in litigation.
• Indirect purchasers in Europe
A majority of respondents to the Green Paper were opposed to limiting standing to direct purchasers. It was accepted that any such limitation would be contrary to the underlying principle of full compensation.
The ECJ confirmed in the Manfredi[18] case that ‘any individual can claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 81’. The Commission considers that this principle clearly also applies to harm suffered as a result of breach of article 102 TFEU (formerly article 82 EC Treaty).
The Commission considers that the reference to ‘any individual’ includes indirect purchasers, who may suffer significant harm as a result of competition law infringements. However, the requirement of causality means that national provisions or case law that result in damages actions brought by certain indirect purchasers being barred for reasons of remoteness would be permissible. The Commission does not intend to suggest any limitation on standing of anyone who can show a causal link between his harm and an infringement of article 101 or 102. This means that in cases where direct purchasers of cartelised products have passed on excessive prices, the market participants further down the supply chain have the right to sue for compensation.
Passing-on defence
The Green Paper and the annexed working paper discussed the passing-on defence and indirect purchaser standing as possible obstacles to private damage claims due to competition law infringements. In the White Paper, the Commission opted for allowing the passing-on defence in cases of direct purchasers as claimants and a general but rebuttable assumption of full passing-on in cases of indirect purchaser claims, shifting the burden of proof in both cases on the defendant.
Businesses harmed by a competition law infringement – for example, distributors as direct buyers paying supra-competitive prices due to a price cartel on the manufacturer level – may be able to pass all or part of their additional costs on to indirect buyers, such as the end consumer. Being sued for damages by direct buyers, the defendant may invoke this fact as the ‘passing-on’ defence and thereby reduce the damages to be paid to the plaintiff by the amount of costs passed on to direct consumers.
There is as yet no direct ruling on this point at the European level. But, given the case law of the ECJ giving the right to anyone who has been damaged by a breach of directly effective EC law (including the competition rules) to claim compensation, it is highly unlikely that the ECJ would follow the US Supreme Court and bar indirect purchaser claims. A recent decision of the Californian Supreme Court[19] does offer a ‘third way’ for indirect purchasers in the US. It affirms indirect parties may claim, if they have standing, and costs would not be disproportionate to the claim.
Private enforcement legislation: off the agenda?
The introduction of legislation to harmonise and enhance the private enforcement of EU competition laws has been omitted from the Commission’s work programme for 2010.[20] This is ‘entirely unexpected given the importance attached to the introduction a measure by the outgoing commissioner for competition, Kroes, who vigorously championed the policy.’[21] Furthermore, Almunia had previously stated that:
The availability of effective collective redress is crucial as a means of enforcing the right to compensation for harm by injured parties.[22]
In the same speech Almunia pledged to carry out a joint public consultation on the topic in the autumn. Therefore, despite recognising the need for enhancing private enforcement legislation in the EU, the Commission has done little to act on the existing proposals and now only promises further consultation.
The contradictory messages emanating from the commissioner regarding private enforcement in cartel cases require some explanation. In his article, ‘The Private Enforcement of EU Competition Law’,[23] Rizzuto, suggests numerous reasons as to why the proposals put forward in the White and Green Papers are no longer a priority for the Competition Commission.
First, he points out that Almunia is averse to the introduction of measures that, in his opinion, risk ‘promoting the litigation excesses prevalent in certain jurisdictions.’[24] By this the competition commissioner was clearly referring to the US. Second, before the Treaty of Lisbon came into force on 1 December 2009, many argued that the EU did not have the legal competence to put in place an effective system of EU competition rules necessary for the functioning of the internal market. Since that date, however, while the EU has been legally competent in theory, its ability to introduce new supranational legislation for the private enforcement of European Competition laws has not been tested. In any event, the introduction of any new rules in this area would, in Rizzuto’s opinion, meet with considerable opposition from several member states.
A third possible reason, asserts the author, as to why private enforcement is off the agenda for 2010 is the recent change in Competition Commissioner. ‘It has been suggested that the outgoing Commission was reluctant to adopt a potentially controversial proposal at the very end of its mandate and the matter should instead be considered by the newly installed Commission in early 2010.’[25] This would help explain the bizarre scenario in which a draft proposal for a council directive on damages was leaked in October 2009 and then subsequently withdrawn.
Rizzuto goes so far as to suggest that the complete omission of private enforcement legislation from the work programme for 2010, for the first time in the past three years ‘suggests that even a minimalist European Union measure seeking to harmonise national procedural rules has stalled in the face of continuing opposition and the installation of a new Commissioner for Competition Policy.’[26] With regard to the time frames involved in EU legislation it therefore appears that, even if a legislative measure were to be introduced, and the legal instrument used was a directive as opposed to a regulation, such a measure would not enter into force in member states until 2014 at the earliest.
An increase in private enforcement
Despite the Commission’s failure to implement the proposals put forward in the 2008 White Paper, private enforcement actions have been brought with increasing frequency over the past few years. According to Rizzuto, this is because, partly as a response to case law of the ECJ and ‘a heightening attention paid to the issue by the Commission,’ there has been a rise in awareness of the right to redress. This has encouraged lawyers and judges to subject national procedure rules governing private enforcement actions, particularly regarding the award of damages for infringements of EU Competition Law, to principles of effectiveness and equivalence.
Within Europe England remains one of the most popular jurisdictions in which to bring a claim. This is due to a number of advantages such as the court’s expansive attitude to jurisdiction, which allows Europe-wide claims to be bundled into one action.[27] Litigators also often favour bringing claims in the UK because of the extensive discovery obligations required by English law.
Cooper Tire & Rubber Co v Shell Chemicals UK Ltd
On 6 and 7 July 2010 the appeal of Cooper Tire & Rubber Co v Shell Chemicals UK Ltd[28] was heard in the Court of Appeal. One of the key issues in the case was whether, in the context of a Europe-wide cartel, a subsidiary who is domiciled in the jurisdiction, and who had been involved in an infringement by selling goods that were the subject matter of the decision, could be liable for a breach of statutory duty – despite the fact that that subsidiary had no knowledge of the offending cartel arrangements. At first instance, the trial judge, Teare J of the Commercial Court, held that where a subsidiary is personally involved in the infringement by implementing the offending arrangements, there was no need to prove that the subsidiary had knowledge of the offending arrangements. In support of his conclusion, Teare J stated that this was consistent with the concept of article 101 TFEU being both a prohibition against the making of, and separately the implementation of, infringing arrangements. It was also consistent with the concept of undertaking under European competition law as articulated in AkzoNobel[29] – being a single economic unit engaged in an economic activity.[30]
Counsel for the appellants argued that where one company implements the prices set by a company from the same corporate group they will not infringe EU Competition Law if it had no knowledge that that company was operating a cartel. The appellants also requested the matter be referred to the ECJ. Counsel for the respondents submitted that knowledge of the cartel can be attributed to all companies implementing the cartel prices. There is no English case authority on the issue at present.
If the Court of Appeal uphold the decision of the trial judge relating to the liability of an ‘unknowing subsidiary’ it would represent a step forward toward access to justice for victims of infringements of competition law. This would mean that claims could be brought in the UK against an anchor defendant even if it were not the addressee of an EC decision and was not aware of the price-fixing arrangements it had been implementing.
Third-party funding
In the absence of legislation, the market has stepped in to provide the solution, as the funding gap has been filled in the UK by specialist third-party funders which have established themselves in the last few years. A third party may fund litigation in return for a share of the proceeds of the claim, if successful. If the claim fails, the third party may be liable for the successful defendant’s legal costs. Such arrangements are upheld, provided they are not contrary to public policy.
The arrival of third party funding on the market was assisted by the judgment in Arkin v Borchard[31] which established that a third-party funder’s liability for the other side’s costs should be limited to the amount of funding which the funder has provided to the claim. This has allowed funders to take a stake in the claim and to limit their risk. As a result, insurers and specialist funders have seen the potential opportunities, and are now offering funding assistance in return for a percentage of the eventual recovery. The increase of litigation funding is an important factor in the growing support for the opt-out representative actions.
Emerald Supplies Ltd & Anr v British Airways PLC: a blow to representative actions?
In Emerald Supplies Ltd & Anr v British Airways PLC (Emerald)[32] two flower importers sued in respect of damage suffered as a result of the cartel in air cargo freight. They also, on a representative basis, seek a declaration on behalf of all shippers of air freight as to their right to a remedy in respect of the cartel. In his judgment on BA’s challenge to the representative nature of the action, the Chancellor of the High Court outlined the problems he felt the claim had as a representative action. He also delivered some important dicta regarding what form a successful representative action would take.
As Emerald was a stand-alone case, the liability of the defendants had yet to be established. The claimants would need to prove that the persons Emerald Supplies Ltd sought to represent had in fact incurred the inflated prices complained of and thus suffered a loss.
The Chancellor made it clear in his judgment that, in theory, there is no limit to the number of persons that can be represented in a class. He confirmed that the fact that relevant class is both numerous and geographically widespread is not of itself an objection to a representative action. His judgment is both significant and important for the future of representative actions in the UK. Once the other preconditions of CPR rule 19.6 (Civil Procedure Rules, see below) are fulfilled there is, in theory, no limit to the size of a claimant class.
The Chancellor did assert, however, that the more extensive the class, the more clearly the other preconditions (of CPR Rule 19.6) should be satisfied.[33] The first precondition is that the claimants must have the same interest in the claim. The second is that those persons have the relevant interest at the time the claim is begun. The class action brought in Emerald therefore failed because the criteria for being included in the class depended on the action succeeding. The Lord Chancellor also found that, in any event, the relief sought in the action was not equally beneficial for all members of the class.
As one commentary put it:
The Chancellor’s approach signals the clear intent of the judiciary to leave it to Parliament to reform the law relating to representative action. That said, Emerald Supplies Ltd’s attempt to bring a representative action failed on its own facts and this judgment does not, in itself, give rise to additional curtailment of the right to bring representative action. It remains the case that a claim may be pursued under Rule 19.6 on behalf of a properly identified class of persons with the same interest in a claim, such interest existing at the time the claim is begun.[34]
The claimants were granted permission to appeal this decision, and the appeal was heard by the Court of Appeal in December 2009 and March 2010. At the time of writing, appeals are still being heard.
Established representative action procedures
For the time being it seems that US style class actions are unlikely to catch on in the UK courts. This is mainly due to the manner in which costs are awarded (loser pays) and the very restricted basis on which punitive damages may be awarded. However, the CPR do provide scope for representative and group litigation to be brought and the increasing access to alternative means of litigation funding gives scope for more creative ways in which litigation may be pursued cost effectively for a number of interested parties.
Section 47B of the Competition Act and CPR rule 19.11 both offer alternative routes to pursuing collective redress. The circumstances in which a section 47B representative action may be brought are considerably more limited than they would be under the High Court. This is because this section only allows for a ‘specified body’ as defined under this section to bring a damages action on behalf of a group of named consumers.
CPR rule 19.11 allows a court to manage claims raising ‘common or related issues’ of law or fact under a group litigation order (GLO). GLOs operate on an opt-in basis, whereby the court consolidates claims lodged on an individual basis by named clients. The test for what constitutes a ‘common or related issue’ is substantially broader than the ‘same interest’ test and provides the court with wide discretionary powers with which it can manage grouped claims. The consolidated claims procedure is, by its very nature, a cumbersome way of bringing a claim for a large number of claimants.
* * *
Private enforcement of the EC competition rules via damages claims or applications for injunctive relief has been leading a shadowy existence for a long time in the European Community, as well as in the majority of its member states. Despite the efforts of the EU Commission, the current legal framework for private enforcement of EC competition law is still ineffective. There are major difficulties for victims of breaches of competition law to receive compensation. In practice, victims of competition breaches still only rarely seek reparation of the damages suffered.
As the EU Commission has estimated in its Impact Assessment Report of 2008, the amount of compensation that these victims are forgoing ranges from €5.7 billion (on the most conservative assumptions) to €23.3 billion (on the least conservative assumptions) a year across the whole EU.
These estimations relate to all types of infringements. The Impact Assessment Report estimates that the total annual cost to consumers and other victims in the EU ranges from €25 billion (on the most conservative assumptions) to over €69 billion (on the least conservative).
The detection rate for hard core cartels is generally assumed to be no more than between 10 and 20 per cent. The size of the uncompensated harm, and the problems encountered, are significant. This is mainly linked to a number of particular characteristics of actions for damages for competition infringements. These include the frequent inaccessibility and concealment of crucial evidence in the hands of defendants; the complex factual and economic analysis required; and the often unfavourable risk/reward balance for claimants.
In sum, enhancement of private enforcement system continues albeit at an uneven pace and its encouragement is welcomed. However, there still appear to be fears – most notably within the competition authorities – that private enforcement could weaken or even take over the role of the public enforcement of competition law. These fears, however, are unfounded. Private enforcement of competition law serves other purposes and will never have the same firepower as public enforcement’.[35] Rights to obtain redress must be asserted in order to be constantly improved, or they risk falling into oblivion. Finding ways to bring these cases are an essential driver in preventing future violations.
Notes
1 ‘Commission fines DRAM producers e331 million for price cartel; reaches first settlement in a cartel case’, 19 May 2010, Press release: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/586&format=HTML&aged=0&language=EN&guiLanguage=en.
2 The Lenience Notice: http://ec.europa.eu/competition/cartels/leniency/leniency.html.
3 The settlement procedure: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:171:0003:0005:EN:PDF.
4 ‘Commission introduces settlement procedure for cartels’,
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1056&format=HTML&aged=0&language=EN&guiLanguage=en.
5 ‘First cartel decision under settlement procedure’: introductory remarks, press conference, Joaquín Almunia (vice president of the European Commission responsible for Competition policy), Berlaymont press room Brussels, 19 May 2010 http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/247&format=HTML&aged=0&language=EN&guiLanguage=en.
6 ‘Competition and consumers: the future of EU competition policy’. 12 May 2010 http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/233&format=HTML&aged=0&language=EN&guiLanguage=en.
7 ‘Plaintiff Recovery Actions’, The European Antitrust Review 2010, Michael Hausfeld, Vincent Smith. Hausfeld & Co LLP.
8 ‘Will Aggregate Litigation Come to Europe?’ Samuel Issacharoff and Geoffrey P Miller, NYU Law and Economics Research Paper No. 08-46, 6 November 2008.
9 European Commission publishes White Paper on antitrust damages actions, 8 June 2008, Jonathan Crompton and Todd Fishman:
http://www.allenovery.com/AOWEB/AreasOfExpertise/Editorial.aspx?contentTypeID=1&itemID=44530&prefLangID=410.
10 Under an opt-out system, claimants having the same interest in a claim will automatically be included within a claim unless they elect to opt out of proceedings.
11 ‘Plaintiff Recovery Actions’, The European Antitrust Review 2010. Michael Hausfeld, Vincent Smith. Hausfeld & Co LLP.
12 Manfredi v Lloyd Adriatico Assicurazioni SpA (C-295/04) [2007] Bus. L.R. 188
13 Jonathan Crompton, European Commission publishes White Paper on antitrust damages actions,www.allenovery.com/AOWEB/AreasOfExpertise/PrintEditorial.aspx?contentTypeID=1&itemID=44530&prefLangID=410.
14 Cartel Damages Claims, Patrick Boylan and Tony Woodgate; http://uk.practicallaw.com/0-501-6802?q=cartel+damages+claims&qp=&qo=&qe=.
15 Devenish Nutrition Ltd & Ors v Sanofi-Aventis SA (France) & Ors [2007] EWHC 2394; www.practicallaw.com/2-379-7603.
16 Devenish v Sanofi-Aventis [2008] EWCA Civ 1086; see news brief, ‘Victims of cartels: no loss, no claim’ (www.practicallaw.com/4-383-8278).
17 ‘Cartel Damages Claims’, Patrick Boylan and Tony Woodgate:
http://uk.practicallaw.com/0-501-6802?q=cartel+damages+claims&qp=&qo=&qe=.
18 Manfredi v Lloyd Adriatico Assicurazioni SpA (C-295/04) [2007] Bus. L.R. 188.
19 Clayton v Pfizer Inc .et al, 12/07/10 , Ct. App. 1/2 A116798 Supreme Court of California.
20 Commission Work Programme 2010 COM (201 0) 135 final. http://ec.europa.eu/atwork/programmes/docs/cwp2010_en.pdf.
21 ‘The Private Enforcement of European Union Competition Law: What Next?’, Francesco Rizzuto.
22 'Competition and consumers: the future of EU competition policy’, European Competition Day Madrid, 12 May 2010 http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/233&format=HTML&aged=0&language=EN&guiLanguage=en.
23 ‘The Private Enforcement of European Union Competition Law: What next?’, Francesco Rizzuto.
24 Competition and consumers: the future of EU competition policy. 12 May 2010 http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/233&format=HTML&aged=0&language=EN&guiLanguage=en.
25 ‘The Private Enforcement of European Union Competition Law: What next?’, Francesco Rizzuto.
26 Ibid.
27 Cartel damages claims, Patrick Boylan and Tony Woodgate, Simmons & Simmons. http://uk.practicallaw.com/0-501-6802?q=cartel+damages+claims&qp=&qo=&qe=.
28 Cooper Tire & Rubber Co v Shell Chemicals UK Ltd [2009] EWHC 2609
29 AkzoNobel NV v Commission of the European Communities (C-97/08 P) [2009] 5 CMLR 23.
30 Opinions, Global Competition Litigation Review Volume 3 Issue 1/2010. Anthony Maton and Rhea Dhillon.
31 Arkin v Brochard and others [2005] EWCA Civ 655.
32 Emerald Supplies Ltd v British Airways Plc [2009] EWHC 741 (Ch).
33 Ibid.
34 ‘English Courts reject latest attempt to widen the scope of collective redress’, http://www.dac.co.uk/documents/resources/newsletters/Class_action_English_courts_reject_latest_attempt_to_widen_the_scope_of_collective_redress.
35 ‘The relationship between public and private enforcement in competition law: a comparative analysis of South African, the European Union and Swiss Law’. Moodaliyar, Reardon & Theurkauf; available from the South African Competition Commission website at www.compcom.co.za.
Practice Areas: Antitrust / Competition Litigation
