Harry First and Stephen Webber Wallace ‘Pairing Public and Private Antitrust Remedies’ in Albert A. Foer Liber Amicorum, Concurrences (Forthcoming)

Discussions on private competition remedies most often deal with questions of optimal deterrence and effectiveness. Lost in conversation is the basic idea that antitrust violations cause economic harm, and that those victimised by that harm should be entitled to damages from those who have violated the law. This is the underappreciated compensatory function of antitrust. Section 4A of the Clayton Act is a powerful, yet historically underused enforcement tool that empowers the United States to obtain treble damages for anticompetitive conduct when the government is itself the victim. The paper, which can be found here, focuses on whether the US government should not only pursue public enforcement activities, but also engage in private enforcement claims to be compensated for losses as a result of anticompetitive conduct. It examines the limited use of Section 4A, and discusses some possibilities for future cooperation between public and private plaintiffs that could advance the compensatory goal of antitrust. It is structured as follows: Section I looks…

Miriam C. Buitem ‘The Ambivalent Effect of Antitrust Damages on Deterrence’ (2019) CPI Antitrust Chronicle Ju

The possible undermining effect of damages actions on leniency programs has been hotly debated. The concern is that the prospect of damages claims may discourage colluding firms from applying for leniency, since the leniency program only shields them from public fines, not from civil damages. Civil damages may contribute to the goal of preventing cartels by increasing the expected costs of starting a cartel. However, civil damages may not enhance antitrust deterrence if colluding firms believe it to be unlikely that competition authorities will detect their cartel. For leniency programs to put cartel members in a prisoners’ dilemma, confessing must be more attractive than staying quiet. If civil damages are substantial, leniency may not sufficiently improve a colluding firms’ position as compared to their non-reporting co-conspirators, and hence their incentive to apply for leniency will decrease, together with the overall odds of cartel detection. This note, available here, discusses the ambivalent effect of antitrust damages actions on deterrence. It considers how fines…

Nicole Rosenboom and Daan in ’t Veld ‘The Interaction of Public and Private Cartel Enforcement’ (2019) World Competition 42(1) 87

Despite its broad title, this article – available here – investigates mainly the interaction between leniency programmes and civil damages claims.  Most competition authorities have adopted leniency programmes to uncover cartels. To increase the overall deterrent effect of competition law, many jurisdictions have also introduced private competition enforcement, which increases the total potential financial exposure of cartel members. The impact of private competition enforcement – and particularly the concomitant increase in the liability of potential leniency applicants – on leniency programmes has been discussed in the literature, but there is an absence of empirical studies. This article tries to fill this gap by studying the empirical impact of private competition enforcement on leniency. It uses two methods: surveys of Dutch firms and competition lawyers, and econometric conjoint analysis. The authors conclude that firms’ decisions to apply for leniency are affected by the magnitude of the personal penalty to which directors are subject and the amount of fine reduction following a successful leniency application….

Konstantinos Stylianou ‘What can the first blockchain antitrust case teach us about the crypto-economy?’

This note, available here, describes the first ever blockchain antitrust case. In December 2018, UnitedCorp, a diversified technology company, sued Bitmain, the largest Bitcoin mining pool, in the first blockchain dispute with a focus on antitrust (United American Corp. v. Bitmain, Inc. Complaint). The case, pending before the District Court for the Southern District of Florida, is at its core a familiar collusion claim. The facts and allegations are as follows. UnitedCorp offers a number of blockchain solutions. These include BlockNum, which allows the execution of blockchain transactions using regular phone numbers; and BlockchainDome, a cryptocurrency mining system that uses the heat generated from the mining process to heat greenhouses for agricultural purposes. Both technologies rely on a cryptocurrency called Bitcoin Cash, one of the hundreds of publicly available (permissionless) cryptocurrencies. As with other cryptocurrencies, Bitcoin Cash’s whitepaper and protocols set out its rules and governance. In November 2018, protocol developers disagreed on how to update Bitcoin Cash’s protocols. This resulted…

The OECD Report on International Private Enforcement

Officially known as ‘Individual and Collective Private Enforcement of Competition Law: Insights for Mexico in 2018’, this Report was prepared with a view to advise Mexico on how to reform its private enforcement regime. The Report can be found here. Advising Mexico in this regard required the pursuit of a comprehensive overview of international experiences with private competition enforcement – with a focus on Europe and North America, but also looking beyond these regions. This project also required the identification of the various elements that comprise private enforcement regimes around the world, the various forms that each of these elements may take, and how these elements relate to one another. I may of course be mistaken, but I think there is no other work like this in the market. As such, I circulate the Report here because I think it can provide a useful reference for anyone working or interested in private enforcement.

Jurisdictional Clauses and Abuses of a Dominant Position – Case C‑595/17 Apple ECLI:EU:C:2018:854

This review concerns the judgment of 24 October by the CJEU on whether generally worded jurisdiction clauses cover claims of abuse of a dominant position brought by one party to a contract against the other (Case C‑595/17 Apple ECLI:EU:C:2018:854). The interpretation of generally worded jurisdiction clauses, and whether they extend to cartel claims, was the topic of a couple of articles that I reviewed a few weeks ago here and here. Facts The case concerns a distribution contract entered into between Apple and eBizcuss (the ‘authorised reseller’ or ‘distributor’) which contained a jurisdiction clause conferring jurisdiction on the Irish courts. The clause read as follows: ‘This Agreement and the corresponding relationship between the parties shall be governed by and construed in accordance with the laws of the Republic of Ireland and the parties shall submit to the jurisdiction of the courts of the Republic of Ireland.’ In 2012, the authorised reseller brought proceedings before the tribunal de commerce de Paris…

How to Calculate Damages – BritNed Development Limited v ABB AB and ABB Ltd [2018] EWHC 2616 (Ch)

This case, available here, is the first cartel damages claim to reach final judgment in the English courts. Facts This was a follow-on claim from the European Commission’s Power Cables cartel infringement decision (the “cartel”). The cartel operated globally between 1999 and 2009 in the market for (extra) high voltage submarine and underground power cable projects. The Claimant – “BritNed” – is jointly owned by the operators of the UK and Dutch electricity systems, and operates a 1,000-megawatt (“MW”) capacity electricity submarine cable system connecting the Dutch and UK electricity grids, constructed in 2009-2010. The defendant, cartelist ABB, supplied the cable element of the electricity submarine cable system connecting the Dutch and UK electricity grids, and bid for the other significant element of the system, a converter. The claim was for: (i) an overcharge in the cable element of the submarine cable system; (ii) lost profits derived from the overcharge having led BritNed not to buy a higher-capacity cable, which would have…

Francisco Marcos, Barry J. Rodger and Miguel Sousa Ferro ‘The Promotion and Harmonization of Antitrust Damages Claims by Directive EU/2014/104 in ‘The EU Antitrust Damages Directive: Transposition in the Member States (OUP, 2018)

This paper is the second chapter of a book on ‘The EU Antitrust Damages Directive: Transposition in the Member States’, of which the authors are the editors. Oxford University Press will publish the book later this year – in December, I believe. This draft chapter can be found here. The paper assesses critically the features of the EU Damages Directive and the challenges Member States face in its implementation. The authors examine the contents and goals of the Directive, its provisions, and whether the Directive is likely to achieve its purported aim of fostering compensation of victims of antitrust infringements. It is structured as follows: A first section describes the path to the adoption of the Directive. The paper describes the various stages in the progressive promotion of private competition enforcement in Europe. After the CJEU judgment in Courage in 1999, which instituted a right to compensation for competition infringements, the Commission prepared a Green Paper on damages actions for…

Miriam C. Buiten, Peter van Wijck and Jan Kees Winters ‘Does the European Damages Directive Make Consumers Better Off’ (2018) Journal of Competition Law & Economics, 14(1) 91

The paper seeks to uncover what are the implications of private enforcement for deterrence, leniency, and consumer welfare. To address this question, the authors develop a dynamic model that considers two opposing effects on deterrence that arise from allowing partial compensation of victims. First, competition damages may reduce incentives to apply for leniency. Second, liability for damages may lead firms to refrain from engaging in a cartel in the first place by increasing potential participation costs. The authors find that these effects act in opposite directions, so there is a balance to be struck between promoting compensation and leniency applications. The paper is organized as follows. Section II discusses the legal position of competition victims under the EU Damages Directive, and remaining obstacles to obtaining compensation. The Directive aims to remove the main obstacles that victims of competition law infringements face when trying to obtain compensation for their loss. The Directive specifies that “any natural or legal person who has…

Jurgita Malinauskaite and Caroline Cauffman ‘The Transposition of the Antitrust Damages Directive in the Small Member States of the EU – A Comparative Perspective’ (2018) Journal of European Competition Law & Practice 9(8) 496

This paper, which can be found here, focuses on how four small EU Member States (Belgium, Latvia, Lithuania, and Luxembourg) transposed the various provisions of the Damages Directive, and on the challenges these countries faced in their attempt to align the Directive’s provisions with their national legal orders. It looks at the transposition of the Directive as regards the following topics: (i) the right to compensation; (ii) disclosure of evidence; (iii) effect of infringement decisions; (iv) limitation periods; (v) joint and several liability; (vi) passing on defences; (vii) presumption and quantification of harm; and (viii) consensual dispute resolution. The paper is quite detailed and descriptive, so it would be otiose to review how transposition occurred in the sampled countries as regards each of these topics. Suffice to say that the paper provides a good overview of some technical and linguistic obstacles these countries faced when transposing the Directive, as well as of the main challenges in aligning the Directive’s provisions with national…