1. 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

2. National grid v abb & ors
Daniel beard q.c.

3. Cooper tire v dow
Daniel jowell q.c.

4. 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

5. Issues
Complexity
Link between quantitative analysis and factual evidence
Prior beliefs

6. Synthetic rubber

7. 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

8. 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

9. 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Amended pleading: claim against Kaucuk and Trade Stomil withdrawn, but umbrella claim in respect of their sales against other Ds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

10. Pass on issues in national grid
Daniel beard q.c.

11. 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

12. 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

13. Indirect purchasers/passing on
Beautiful plc
Bountiful plc
Unjustified criticism plc
x + £1
Buyer power inc
Regulatory controls
Pretty much everyone

14. a ladder

15. Settlement tactics

16. Questions?