counterfactual
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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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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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MasterCard miffed as CJEU dismisses appeal
Yesterday’s CJEU judgment in the MasterCard case is a major defeat for a company which faces a huge number of private damages actions from retailers. The judgment also examines some interesting legal points, including in particular relating to the use of “counterfactuals” in competition cases. Continue reading
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Albion v Dwr Cymru: Incompetence and counterfactuals
The Competition Appeal Tribunal today delivered that rarest of beasts: a judgment awarding damages in a follow-on claim. After its decade-long fight, Albion Water has been awarded around £2 million for Dŵr Cymru’s abuse of dominant position in relation to the price it was prepared to charge Albion for the use of its water pipes.… Continue reading
