Antitrust Follow on Litigation: Europe Plays Catch-up ACC International Legal Affairs Committee Quick Hit: June 14, 2012 Presented by: Catriona Munro Maclay Murray & Spens LLP

Antitrust Follow-on Litigation Regulatory fines: historically, the principal concern Europe plays catch-up Litigation is now a real concern Tensions emerging between successfully leniency programme and damages actions

Antitrust Follow-on Litigation: The basics If there is an EU or national competition authority, it stands as proof Can sue addressees of decision “follow-on” basis Need to show causation and loss Passing on defence generally allowed Interest generally recoverable

Antitrust Follow-on Litigation In recent years, various reports, proposals at all levels to facilitate litigation – but no action taken to date Some member states have taken some steps, but still a long way to go, e.g. the Netherlands, Germany, UK Litigation has multiplied dramatically – against the odds – in UK and Germany principally ATE insurance and conditional fee arrangements (and other funding models) have made this type of litigation attractive to claimants

Antitrust Follow-on Litigation: The big issues Where can claimant sue? Brussels Regulation determines this; either domicile of defendant or place of damage. Looks straightforward, but issues remain Italian torpedo: does this oust litigation elsewhere? Applicable law: now governed by an EU regulation, but not retrospective so a mishmash of national rules determine this Passing on: in principle, passing on defence is admissible in most national systems, but how do you calculate loss? Uncertainty re time bars: if foreign law applies, so too might foreign time bar Are umbrella claims allowed?

Antitrust Follow-on Litigation: The future UK is looking to improve environment for antitrust litigation – including ‘opt-out’ consumer claims and contingent fees; possible protection form joint and several liability for leniency applicants EU: various proposals, but no action to date Germany also quite attractive to claimants In short, now a major risk for cartelists.

Antitrust: Follow-on Litigation Questions?

Contact Information Catriona Munro Tel: 0131 228 7121 catriona.munro@mms.co.uk