COMMERCIAL
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No MIFS or buts
The Tribunal’s recent judgment in the interchange proceedings gives important guidance on the use of counterfactuals in competition infringement claims. The Trial 1 judgment in the Merchant Interchange Fee Umbrella Proceedings [2025] CAT 37 was handed down on 27 June (here). The claims initially comprised over 2000 individual claims brought by merchants against Visa and… 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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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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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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When is an antitrust/competition claim caught by an arbitration clause? The Microsoft Mobile decision
The decision of the High Court in Microsoft Mobile Oy (Ltd) v Sony offers some helpful guidance as to when a competition law tort claim will be caught by an arbitration clause in a sale or supply agreement. Competition law claims frequently complain about prices, on ground of collusion or abuse. Those prices may already… Continue reading
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The Freight-Forwarding Cartels in the General Court: Lessons on Leniency and Discretion
On 29 February 2016, the General Court handed down its judgments in Case T-265/12 Schenker Ltd v European Commission; Case T-267/12 Deutsche Bahn AG and ors v European Commission, upholding the Commission’s decision on the freight forwarding cartels. The judgments provide some useful guidance on the operation of the leniency scheme and highlight the Commission’s… 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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Standalone claims in the CAT: bypassing the transitional rules
We have written before about the problems inherent in the transitional provisions of the new Consumer Rights Act 2015 (see Tom de la Mare QC’s blog here). A recent decision from Mr Justice Barling in the Mastercard litigation places a (small) sticking plaster over some of the difficulties. One problem is that the transitional provisions… Continue reading
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Blown out of the water? Air Cargo and the future of extra-EU/EEA cartel damages claims
If the captain of a trading ship fires cannon on a canoe to prevent the canoeists trading with another boat vying for their trade, that boat’s owners can sue the captain: Tarleton v M’Gawley (1793) Peake 270. An intention to gain where your gain must be another’s loss is an intention to injure the other… Continue reading
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PRIVATE ACTIONS: The CRA 2015 giveth; and the 2015 CAT Rules taketh away
Introduction Today, on the 1st October 2015, when we are supposed to be celebrating the brave new world of the Competition Act 1998 (“CA”) as amended by the Consumer Rights Act 2015 (“CRA”), cartelists and other competition law infringers up and down the land[1] must be rubbing their hands in glee at the transitional provisions… 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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Jurisdiction in competition damages actions: a first word from the CJEU
C-352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide was the CJEU’s first judgment on the application of the Brussels I Regulation (44/2001) to competition damages claims. The case fell to be decided in the context of the EU’s various new measures to encourage private enforcement. The Advocate General was not convinced that this policy focus could… Continue reading
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Settling cartel damages actions: contribution defendants beware
Anyone who has ever tried to settle a cartel damages case will know that the law relating to settlements is fraught with difficulty. The recent judgment of the High Court in IMI Plc v Delta Ltd [2015] EWHC 1676 (Ch) highlights some of the problems. Continue reading
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Recovering penalties from directors and employees: Safeway revisited
Can a company which has been fined for anticompetitive conduct seek to recover the fine from the directors and employees responsible by suing them for damages? The question is moot in light of last week’s Supreme Court judgment in Jetivia SA and another v Bilta Ltd (in liquidation) and others [2015] UKSC 23, which casts… 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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What’s the plot? Conspiracy and 19th Century comic opera (again)
Ever since Johnson v Moreton [1980] AC 37 (61E-G per Lord Hailsham: ‘we should have to adopt the carefree attitude of the Mikado…’), references to Gilbert and Sullivan have been gaining ground in the judgments of our higher Courts. When last year Arden LJ rejected the argument, advanced by the claimant victim of a cartel,… 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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The English law of causation and the passing-on defence
One of the big questions of English competition law is whether there is such a thing as a “passing-on defence” – – i.e. whether the damages suffered by a purchaser of a cartelized product are reduced or mitigated if he “passes on” some of the overcharge to his own customers. Two follow-on damages actions were… Continue reading
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Competition law and covenants restrictive of land use
Covenants restricting use of land to particular commercial purposes are commonplace. Until recently, the potential for competition law to regulate them was limited, because “land agreements” were excluded from the reach of the Chapter I Prohibition under the Competition Act 1998. The exclusion has, however, been revoked by the Competition Act 1998 (Land Agreements Exclusion… 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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“What’s in a Commission Decision?” and other lessons for national courts
In a decision of 13 February 2014, the Court of Justice of the European Union (“CJEU”) added a little gloss to an otherwise well-trodden path in relation to the binding aspects of a Commission Decision. For instance, it is well established that assessments made in recitals to a decision “are not in themselves capable of… Continue reading
