Abuse
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Collective Actions in the Supreme Court
The big news from today’s UK Supreme Court collective action decision in Mastercard v Merricks [2020] UKSC 51 is not only that Mr Merricks won and defeated the appeal, but that the Supreme Court approached the issues in a far more claimant-friendly way than even the Court of Appeal had done. The headlines are that,… Continue reading
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The Supreme Court’s decision in Unwired Planet – what comes next?
Introduction The UK Supreme Court has handed down its long-awaited judgment in Unwired Planet. Its decision has profound implications for patent owners and implementers alike and is likely to lead to heavily contested jurisdictional disputes going forward. These joined appeals concern Standard Essential Patents, or “SEPs”: a patent which the owner has declared to be essential… Continue reading
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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 Applicant and will reinvigorate the collective proceedings regime, which has seen disappointingly few cases brought since its introduction in 2015. Continue reading
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A warning before bringing an appeal to the CAT? Costs after the BCMR decision
The Court of Appeal’s judgment in the recent BCMR costs case is a stark warning to all those considering challenging a regulatory decision in the Competition Appeal Tribunal: even if you win, you may still face a big costs bill. See British Telecommunications plc v Office of Communications [2018] EWCA Civ 2542. Unlike the position… Continue reading
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Retrospective interpretation: DSG v MasterCard
The latest battle over limitation in Competition damages claims was a victory for the claimants – see DSG Retail Ltd v MasterCard Inc [2019] CAT 5. In some ways it is a surprising decision, because the Competition Appeal Tribunal has decided that when s.47A of the Competition Act was enacted in 2003, certain claims which were time-barred… Continue reading
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Jurisdiction after a no deal Brexit
Time for some more speculation about the future which awaits us after 29 March. The topic this time is jurisdiction. As the readers of this blog will know, the rules of civil jurisdiction across the EU are currently governed by the Brussels Recast regulation. The basic framework is: A defendant domiciled in a Member State… Continue reading
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Subsidiarity liability: Biogaran
I wrote a blog a few months ago on the circumstances in which a subsidiary can be held liable for the infringing conduct of its parent. That is a somewhat special interest subject which might be said to have received more than its fair share of attention among English judges and lawyers. However, I cannot resist… Continue reading
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Anchoring claims to a UK subsidiary
The recent decision of the High Court in Vattenfall AB v Prysmian SpA [2018] EWHC 1694 (Ch) is another example of claimants being allowed to use non-addressee English subsidiaries as anchor defendants for their competition damages claims. It is also another example of the court considering but not actually having to decide the interesting legal… Continue reading
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Applicable law in competition infringements: Deutsche Bahn
The recent judgment of Barling J in Deutsche Bahn AG v MasterCard offers important guidance on determining applicable law in competition actions. Practitioners dealing with competition infringements which stretch back prior to the entry into force of Rome II in 2009 should take note – particularly when dealing with limitation issues, which are governed by… Continue reading
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Market dynamics in the counterfactual: more competitive, not just cheaper
The judgment of Phillips J in Sainsbury’s v Visa [2017] EWHC 3047 (Comm) demonstrates the importance to claimants in competition damages cases of identifying a counterfactual which not only involves lower prices but also involves higher levels of competition. Sainsbury’s case Visa’s payment card scheme required ‘acquirers’ (who process card payments on behalf on merchants)… Continue reading
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Intel Corporation Inc v European Commission
In its recent judgment in Intel, the Grand Chamber shed valuable light on the “qualified effects test” for jurisdiction and on the room for loyalty rebates to be compatible with competition law. Background Intel designed computer processors and sold them to original equipment manufacturers (“OEMs”) to use in central processing units (“CPUs”). One of its… Continue reading
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Collective (in)action? The CAT’s recent judgments on collective proceedings orders
At first glance, two recent judgments from the CAT may give the impression that the new UK class action regime is dead in the water. However, on closer inspection there is much in these judgments that prospective claimants will welcome. The first decision was in the Pride mobility scooters case (see Tom Coates’ blog here).… Continue reading
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Illegal counterfactuals: the Court of Appeal shuts the back door
Suppose a defendant to a competition claim runs a defence that, in the counterfactual world in which no anticompetitive conduct occurred, pricing would have been no different; and that the claimant replies, “maybe so, but only because you were at the same time operating some independent anti-competitive scheme, which must also be purged from the… Continue reading
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The passing-on “defence” after Sainsbury’s
The passing-on defence – ie. whether the damages suffered by a purchaser of a product which has been the subject of a cartel are reduced if he passes on the overcharge to his own customers – had, as Tristan Jones blogged a few years ago, been the subject of much policy discussion but relatively little… Continue reading
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Illegal counterfactuals: bringing in new claims by the backdoor?
It is fairly well-established in competition cases that the hypothetical counterfactual – which, for the purposes of causation, posits what the situation would have been absent any breach of competition law – cannot contain unlawful elements: see e.g. Albion Water Ltd v Dwr Cymru [2013] CAT 6. In a normal case, C will claim damages,… Continue reading
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FIFPro challenge the football transfer system
By Nick De Marco & Dr Alex Mills As the curtains are drawn on the panic-buying of the January transfer window for another year, it is once again difficult not to reflect critically on the football transfer system. In the Premier League alone, more than £1bn has been spent on football transfers during the 2015-16… Continue reading
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Eligibility for sporting competitions caught in the cross-hairs of competition law
In a recent announcement, the European Commission got its skates on and launched an investigation into the rules of the International Skating Union (ISU) which preclude skaters from taking part in events which have not been approved by the ISU. The announcement is only preliminary and does not represent a statement of what may or… Continue reading
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Arcadia v Visa revisited: the Court of Appeal takes a strict approach to limitation
Competition damages claims can be notoriously complex. According to the Court of Appeal, however, that is no reason to free them from the ordinary English rules of limitation – however strict those rules might be. Unlike the large majority of European limitation rules, where time starts running from the date of the victim’s knowledge, the… Continue reading
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Gallaher and Somerfield: will the CMA change its approach to settlement?
The latest episode in the tobacco litigation saga has seen Gallaher and Somerfield’s attempt to benefit from the collapse of the OFT’s case in November 2011 rejected by the High Court in R (Gallaher Group Limited and Ors) v Competition and Markets Authority [2015] EWHC 84 (Admin). Although the CMA will breathe a sigh of… Continue reading
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Applying interest in damages claims
The Competition Bulletin is pleased to welcome the latest in our series of blogs by Oxera Consulting on key economic concepts for competition lawyers. In this blog, Enno Eilts, a Senior Consultant, discusses issues connected with the calculation of interest in damages actions. Continue reading
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“It’s too late baby, now it’s too late”: limitation, competition claims and knowledge
How much knowledge does a potential claimant need before time begins to run against a competition claim against a party alleged to have breached competition law? This was the key question addressed by Mr Justice Simon in the first case in which an English Court has had to consider the effect of s.32 of the… Continue reading
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High Court tests the limits of confidentiality in EC infringement decisions
The European Commission came in for some stern criticism from the High Court this week, in a case which looks set to test the boundaries of confidentiality in EC infringement decisions: see Emerald Supplies v BA [2014] EWHC 3515 (Ch). The background is the 2010 EC decision fining BA and eleven other airlines a total of €800m… Continue reading
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The Cost of Collusion
The Competition Bulletin is pleased to welcome a guest blog from Louise Freeman of King & Wood Mallesons LLP. Louise specialises in (among other things) complex competition litigation. In this blog, she addresses the implications of the recent CJEU decision in Case C‑557/12 Kone AG and others v ÖBB-Infrastruktur AG. Continue reading
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Avoiding the clinch: judicial respect for the rules inherent to sport
In a recent bout in the High Court, the specificity of sporting disputes once again came to the fore. In Bruce Baker v British Boxing Board of Control [2014] EWHC 2074 (QB), 25 June 2014, Sir David Eady was faced with the old chestnut of a request for a court to interfere with a national… Continue reading
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Non-Appealing Cartelists Beware
Tucked away at the back of last week’s Supreme Court decision on time-limits for follow-on claims is a very important development for private competition actions. The context is section 47A of the Competition Act 1998, a provision which has generated an extraordinary amount of litigation in view of the fact that it was intended to… Continue reading
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Sharing Risk in Collective Actions
With legislation to introduce collective actions currently making its way through Parliament (see our previous blog here), we are pleased to welcome a guest blog from Elaine Whiteford of King & Wood Mallesons LLP and Oliver Gayner of Burford Capital (UK) Ltd. They highlight a litigation funding problem which will arise under the proposed new regime, and suggest… Continue reading
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Abuse of dominance: no commercial gain, no abuse?
Is it necessary for there to be some commercial benefit to be gained by a dominant undertaking from its conduct before that conduct can be condemned as abusive? No, says Mrs Justice Rose in Arriva the Shires Ltd v London Luton Airport Operations Ltd [2014] EWHC 64 (Ch). Continue reading
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Murphy and pay-TV: an update
A version of the blog post below was first published on the Blackstone Chambers sports law blog: http://sportslawbulletin.org/. Back in November I blogged on a Financial Times report that the European Commission was about to commence an antitrust investigation into pay-TV services. That investigation was formally announced last Monday, in a statement by Joaquín Almunia,… Continue reading
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Competition round-up: January 2014
It is again time for a round-up of recent competition law developments which have caught our attention. Most attention-grabbing of all was the European Commission’s genius/bizarre/inexplicable decision to publish a comic book which is probably best described as a bureaucrat’s fantasy. A young Commission official (Thomas) starts talking to a beautiful woman (Chloe) in an… Continue reading
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Murphy, round 2: does exclusive territorial licensing of pay-TV breach EU competition law?
According to a report in the Financial Times last weekend, the European Commission is on the verge of commencing a formal investigation into potentially anti-competitive restrictions in pay-TV licensing arrangements. Such an investigation could have significant ramifications for any owners of television rights in sports fixtures (or other content) who seek to maximise their revenues… Continue reading
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This blog is produced by a group of barristers at Blackstone Chambers and is edited by Tristan Jones, Tom Coates and Flora Robertson.
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