1. 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

2. 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

3. 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

4. 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

5. 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?

6. 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.

7. Antitrust: Follow-on Litigation
Questions?

8. Contact Information
Catriona Munro Tel: