Makan Delrahim ‘Merricks v MasterCard: ‘Passing On’ the US Experience’ (2020) Competition Policy International, May Column

Over the past few years, in addition to cooperating with international counterparts in many cases, the DoJ has made efforts to further common understandings on a variety of substantive and procedural antitrust issues. Developments in competition law, both substantive and procedural, can be driven by courts, particularly in countries that allow for private antitrust enforcement in the form of class actions. The upcoming decision of the UK Supreme Court in Merricks v. MasterCard is of interest to competition enforcers around the world because it involves novel questions on the proper approach to certification of an opt-out collective action — akin to a class action in the United States — brought by indirect purchasers. This essay, available here, aims to share the United States’ experiences confronting similar questions to those faced by the UK Supreme Court in this case – in particular, how the class representative can show “a realistic prospect of establishing loss on a class-wide basis,” and what should…

Michael D. Hausfeld, Irving Scher and Laurence T. Sorkin ‘In Defense of Class Actions: A Response to Makan Delrahim’s Commentary on the UK MasterCard Case’ (2020) Competition Policy International June

This article, available here, was written by lawyers of a US firm that is, in its own words, a ‘global leader on claimant focused competition damages practice’, enabling victims of anticompetitive conduct to obtain damages for harm suffered. This law firm acts for an intervenor, the Consumers’ Association, in the UK MasterCard proceedings that led to the US DoJ sending a letter to the UK’s Supreme Court. This piece is – as the title indicates – a reaction to that letter. The paper begins by framing the issue. The DoJ AAG’s letter to the UK Supreme Court provides an overview of class actions in the US. The authors agree with the general overview of Rule 23 provided by the Division. For example, few would argue with the proposition that, in the antitrust context, indirect purchaser class actions raise more difficult questions of commonality, impact, and manageability than direct purchaser class actions, even though harm may have been sustained at both…

Eugenio Olmedo-Peralta ‘The Evidential Effect of Commitment Decisions in Damages Claims’ (2019) Common Market Law Review 56 979

The European Commission and national competition authorities (NCAs) make extensive use of commitment decisions. Since these decisions do not establish the existence of competition infringements, claimants still have to bear the burden of proof in stand-alone damages actions concerning conduct covered by them. However, some evidential effects should be recognised to commitment decisions, as well as to certain statements made in the context of related public enforcement proceedings. This article, available here, describes such effects as follows. Section II outlines the relationship between commitment decisions and the private enforcement of competition law. According to Regulation 1/2003, commitment decisions are adopted without concluding whether competition law has been infringed. Commitment decisions merely state that there are no longer grounds for action by a competition authority, as the behavioural or structural measures taken by the companies involved in an investigation are sufficient to put an end to the potential restriction of competition. In short, the main features of commitment decisions are that: (i) they…

Miguel Sousa Ferro ‘Antitrust private enforcement and the binding effect of public enforcement decisions’ (2019) Market and Competition Law Review 3(2) 51

This paper, available here, provides an overview of the binding effect of public enforcement decisions in follow-on competition law cases in Europe. It discusses the material, subjective and temporal scope of this binding effect. It also tackles other issues, such as the obligations of national courts vis-a-vis non-infringement decisions and ongoing investigations. Finally, it looks into some arguments put forward by litigants before national courts to avoid or circumvent the binding effect of public enforcement decisions. Sections II and III explain the basis for EU and national competition infringement decisions being binding in subsequent damages claims. It follows from Article 16(1) of Regulation /2003, which mainly codified preceding case law, that European Commission decisions identifying infringements of EU competition law which have become final (res judicata) are binding upon national courts in follow-on private enforcement actions. A national court can only escape this binding effect if it believes that the Commission’s infringement decision is invalid and the CJEU declares it to be…

Christian Ritz, Carolin Marx and Manuel Bogenreuther  ‘Prima Facie Evidence in Cartel Damages Litigation – Landmark Decision by the German Federal Court of Justice in the Rail Cartel Case’ (2019) Journal of European Competition Law & Practice 10(8) 491

This paper, available here, deals with a judgment of 11 December 2018 by Germany’s Federal Court of Justice’s Cartel Panel dealing with the applicability of the principle of prima facie evidence (in German ‘Anscheinsbeweis’) regarding causation of damage. Section II focuses on the law of evidence regarding competition damages in Germany. Under German law, each party bears the burden of proving all elements of any statutory provision on which they rely. For cartel damages cases, this means that a claimant asking for damages needs to prove: (i) an infringement of competition law, (ii) the existence of such damages and (iii) that the damages were caused by the infringing behaviour. This situation changed, as regards follow-on claims, as a result of the implementation of the EU Damages Directive. With the goal of ensuring that neither the burden nor the standard of proof render the exercise of the right to compensation practically impossible or excessively difficult, Article 17(2) of the Damages Directive…