Eckart Bueren, Kai Hüschelrath, and Tobias Veith ‘Time is Money–How Much Money is Time? Interest and Inflation in Competition Law Actions for Damages’ (2016) Antitrust Law Journal 81(1) 271

One aspect that is often overlooked, but is of enormous practical importance in competition damages cases, is the way a legal system deals with costs associated with the passage of time, as expressed through interest and inflation. Cartel damages generally are spread over a cartel’s lifespan, which can be long; furthermore, a considerable amount of time often elapses between the incidence of loss and the award of damages. This paper – which can be found here – seeks to address a gap in the literature by describing how major legal systems deal with interest and inflation in the context of antitrust damage claims, what the consequences are of adopting certain approaches to interest and inflation for recoverable damage amounts, and whether these approaches are economically sound. The paper is structured as follows: The first section describes the main economic approaches to address the passage of time on damages awards and for selecting an appropriate interest rate. Four main measures are identified: the…

Jens-Uwe Franck and Martin Peitz ‘Toward a coherent policy on cartel damages’ (2018) University of Manheim Discussion Paper No. 007

In short, the argument of this paper – which can be found here – is that there is an undue focus on overcharges when talking about cartel damages. The authors argue that significant losses can be suffered as a result of volume effects as well, i.e. from reduced sales / purchases as a result of the higher price that results from a competition infringement. This has implications in terms of standing, since victims of volume effects may not be allowed to bring claims for damages. This is mistaken, and standing should be granted to victims of volume effects. The argument is developed as follows: Part II outlines the law on antitrust standing in the U.S. and the E.U., as well as the basic economics of cartel damages and optimal deterrence. In the US, only direct purchasers or sellers have standing to claim antitrust damages, alongside some victims of ‘umbrella pricing’ (i.e. when non-cartelists raise their prices as a consequence of a competition infringement)….

Urszula Jaremba and Laura Lalikova  ‘Effectiveness of Private Enforcement of European Competition Law in Case of Passing-on of Overcharges: Implementation of Antitrust Damages Directive in Germany, France, and Ireland’ (sic) (2018) Journal of European Competition Law & Practice 9(4) 226

The  EU Damages Directive sets out that the goal of private enforcement is compensation – claimants should be neither over- nor under-compensated, which means that the passing on of overcharges can be invoked both as a shield (for the defendant in the proceedings) and as a sword (by indirect purchasers). The authors seeks to determine whether the Directive has been correctly transposed by Member States, and assess how the Directive’s rules on passing on have affected the relative position of the parties and the role of national courts in competition damages claims in the EU. The paper, which can be found here, is structured as follows: First, the paper describes how passing on has been treated under EU law over time. In doing so, the article reviews the CJEU’s case law (mainly Courage and Manfredi) and the Commission’s work leading to the adoption of the Damages Directive. Section 2 briefly deals with the contents EU Damages Directive as regards passing on,…

Joshua P. Davis and Robert H. Lande on ‘Restoring the Legitimacy of Private Antitrust Enforcement’ in A Report to the 45th President of the United States (American Antitrust Institute’s Transition Report on Competition Policy), Chapter 6, page 219

This report, which can be found here, argues against the increasingly prevalent view that class actions are little more than legalised blackmail, and that class action lawyers are ambulance chasers rather than private attorneys general. The paper submits that there is no systematic empirical support for the view that frivolous antitrust litigation is a serious problem, and present a defence of the benefits of private antitrust enforcement. The paper is structured as follows: A first section argues that private antitrust cases are a critical component of effective antitrust enforcement. Government cannot be expected to do all or even most of the necessary competition enforcement. In addition to budgetary constraints, there are a number of reasons for this – including “undue fear of losing cases; lack of awareness of industry conditions; overly suspicious views about complaints by ‘losers’ that they were in fact victims of anticompetitive behavior; higher turnover among government attorneys; and the unfortunate, but undeniable, reality that government enforcement (or…

Sebastian Peyer ‘Private antitrust enforcement in England and Wales after the EU Damages Directives: Where are we heading?’ in Pier Luigi Parcu, Giorgio Monti & Marco Botta (eds.) Private Enforcement of EU Competition Law: the Impact of the Damages Directive (2018, Elgar)

This paper, which can be found here, provides an overview of recent developments, and offers an insight into the functioning of private enforcement of competition law in England and Wales. It is structured as follows: The first section provides an overview of the legal framework for competition damages actions in the UK. Compensation claims for the infringement of UK or EU competition law are normally based on a breach of statutory duty. Claimants have sought to establish other causes of action in competition law, but their attempts to rely on unjust enrichment (restitution) or economic (intentional) torts have been unsuccessful so far. Economic torts, such as intentionally interfering with business by unlawful means and conspiracy to injure using unlawful means, require proof of intention to injure the claimant. Courts have found that this element is absent in competition infringements, at least in follow-on claims, since the intention to make an (illegal) profit through a cartel is not the same as…

Matthijs Kuijpers, Tommi Palumbo, Elaine Whiteford and Thomas B Paul on ‘Actions for Damages in the Netherlands, the United Kingdom and Germany’ (2018) Journal of European Competition Law & Practice 9(1) 55

This article – which can be found here –  provides an overview of private competition enforcement developments during the past year in the three EU jurisdictions where most such actions are brought. The paper is quite straightforward. Section 2 discusses the legislative developments in each of these jurisdictions, with a focus on the implementation of the EU Damages Directive and on collective redress (i.e. class actions). This section also discusses other recurring topics in follow-on damages litigation, such as the passing-on defence, access to evidence, standard of proof and limitation periods. Section 3 discusses stand-alone damages claims. It concludes that stand-alone claims are rarely successful – with the potential exception of ‘quasi-follow’ on claims, i.e. claims that reflect infringement decisions but which are not addressed to the infringing parties sanctioned by competition authorities, such as in the various instances of credit card litigation I described in previous emails. It further finds that abuse actions (i.e. complaints against powerful companies) are more common…

Ariel Ezrachi on ‘EU Competition Law Goals and The Digital Economy’ (2018) Report for BEUC – The European Consumer Organisation

This paper – which can be found here – remarks that questions regarding whether certain conducts pose competition problems have become increasingly common in the face of new business strategies, new forms of interaction with consumers, the accumulation of data and the use of big analytics. It argues that answers can only be provided by taking into account the goals and legal framework of specific competition regimes. The author focuses on the EU. The paper thus outlines the goals and values of European Competition law, and looks at how they apply to digital markets. The report is structured as follows: The paper begins with an introduction to the constitutional foundations of European Competition law. Competition policy is one of several instruments used to advance the goals of the European Treaties. In this context, competition rules must be interpreted in the light of the wider normative values of the EU. These are not limited to economic goals such as promoting consumer welfare, but…

Maurice Stucke and Marshall Steinbaum ‘The Effective Competition Standard – A New Standard for Antitrust’ (2018) Report for the Roosevelt Institute

This is a report published for the Roosevelt Institute, and can be found here. It builds on the Neo-Brandeisian canon and tries to develop an applicable antitrust standard out of it. According to the authors, the consumer welfare standard is to blame for the role that competition has played in a number of social ills, including increased market concentration. To redress this, the authors advance an alternative standard: the effective competition standard. This framework would restore the primary aim of antitrust, namely to protect competition wherever it has been compromised. This new standard would: 1) protect individuals, purchasers, consumers, and producers; 2) preserve opportunities for competitors; 3) promote individual autonomy and well-being; and 4) disperse and de-concentrate private power. In particular, the effective competition standard would allow enforcement against vertical integration and the adoption of bright-line indicators for anticompetitive behaviour. The paper is structured as follows: It begins with an introduction that describes a number of economic trends, and explains that…

Ioannis Liannos ‘The Poverty of Antitrust’ CLES Research Paper Series 2/2018 [UPDATED]

This working paper, which can be found here, starts from the author’s (openly acknowledged) view that competition law should have a role in tackling economic inequality and poverty, and seeks to provide a coherent theoretical framework for competition law’s role in this regard. [ADDENDUM] Since this was a working paper, I sent the author some comments which were more detailed than the overview below. Following this, the author and I had a conversation about the paper. We concluded that I had misunderstood the paper, and he was kind enough to prepare a clarification. I would like to thank him for this. You can find the clarification below in the comments. [End of addendum] The paper is structured as follows: Part I explores the various roles of competition law and its evolution over time. In the US, antitrust was originally a tool of social regulation, which sought to ensure that smaller firms had a fair chance to participate in the economic expansion generated by…

Makam Delrahim (Assistant Attorney General, Antitrust Division, U.S. DoJ) ‘Antitrust Enforcement in the Digital Era’

In these remarks, hich can be found here, AAG Delrahim defends the ‘broad antitrust consensus that still reigns today’ and considers how it might apply to the digital sphere. He begins by outlining the two key components of the current antitrust consensus. The first is the consumer welfare standard, which requires that some business practices should be condemned as unlawful only where they harm competition in such a way that consumers suffer. The second component is “evidence-based enforcement”. Outside the realm of naked horizontal restraints such as price fixing, bid rigging, and market allocation, antitrust demands evidence of harm or likely harm to competition, often weighed against efficiencies or procompetitive justifications. Evidence-based enforcement also requires a readiness to adapt our existing antitrust framework and tools to new or emerging threats to competition. One such threat comes from digital platforms and the increased market concentration they give rise to. AGG Delrahim considers that the antitrust consensus approach is flexible to new business…