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Lessons from recent follow-on damages cases:
the Dow and National Grid litigation Daniel Jowell QC, Brick Court Chambers Daniel Beard QC, Monckton Chambers Dr Cristina Caffarra, Charles River Associates 23 September 2014, Herbert Smith Freehills LLP
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National grid v abb & ors
Daniel beard q.c.
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Cooper tire v dow Daniel jowell q.c.
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Cristina Caffarra, 23 September 2014
The drunken woman and her dog, the blindfolded man walking across a bar, and the man looking for his keys under the lamppost… A tale of cartel overcharges Cristina Caffarra, 23 September 2014
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Issues Complexity Link between quantitative analysis and factual evidence Prior beliefs
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Synthetic rubber
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GIS: Choice of index makes overcharge find more likely
Indices with steep s-shape make finding overcharge more likely Deflating by wrong index can lead to finding overcharge when none exists
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Relevant factual evidence on overcharge
Nature of the cartel: were the terms clear and specific? Transparency: could adherence to the cartel be monitored? Buyer power/buyer resistance Substitute products outside cartel (e.g. natural rubber) Existence of producers within the region outside the cartel (Kaucuk/TS) Import of the products from outside the region Non compliance/cheating; absence of enforcement
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The Deutsche Bahn issue
Original Commission decision: Kaucuk and Trade Stomil cartelists Original pleading: Kaucuk and Trade Stomil defendants Case T-44-45/07, T-53/07 General Court: Kaucuk and Trade Stomil not cartelists Amended pleading: claim against Kaucuk and Trade Stomil withdrawn, but umbrella claim in respect of their sales against other Ds Case C-557/12 Kone Deutsche Bahn [2014] UKSC 24 esp. paras Re-Amended pleading: Dow jointly and severally liable for K and TS sales Cooper Tire v Dow Deutschland [2014] EWHC 1578 (Comm) – amendment allowed, no reference yet as “no doubts” as to Supreme Court’s approach
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Pass on issues in national grid
Daniel beard q.c.
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Indirect purchasers/passing on
BIG plc Bad plc Ugly plc x + £1 x + £1 Passin’ Thru LTD Low Margin Co. y + £1 y y Kind Ltd Sweet Ltd Innocent Ltd
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Indirect purchasers/passing on
Beautiful plc Bountiful plc Unjustified criticism plc x + £1 x + £1 Buyer power inc Mega dist co.Y Optimist Fleecer Chancer
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Indirect purchasers/passing on
Beautiful plc Bountiful plc Unjustified criticism plc x + £1 Buyer power inc Regulatory controls Pretty much everyone
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a ladder
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Settlement tactics
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Questions?
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