The International Comparative Legal Guide to:
Competition Litigation 2015
7th Edition
A practical cross-border insight into competition litigation work
Published by Global Legal Group, in association with CDR, with contributions from:
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Proskauer
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The International Comparative Legal Guide to: Competition Litigation 2015
General Chapters:
1
Impact of the EU Directive on Antitrust Damages Actions - Euan Burrows &
Ruth Sander, Ashurst LLP
2
Light at the End of the Tunnel: Litigating Access to Cartel Leniency Documents in
the EU - Frédéric Louis, Wilmer Cutler Pickering Hale and Dorr LLP
10
Contributing Editors
Euan Burrows & Mark
Clarke, Ashurst LLP
3
Dancing a Judicial Jig on the Tricolore or Playing by the Rules?: The Common Law
Response to “Blocking Statutes” - Jonathan Tickner & Jason Woodland, Peters & Peters
Solicitors LLP
18
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Dror Levy
4
Tyres, Umbrella Claims and Limitation Periods – Lessons from the English Courts in
the Last 12 Months - Sarah Turnbull & Elaine Whiteford, King & Wood Mallesons LLP
23
5
Lessons in the Application and Importance of Economic Evidence in Standalone Private
Actions in the UK Courts from 2010 to 2014 - Mat Hughes & Cherryl Ng, AlixPartners
28
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9
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35 USA
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Chapter 35
USA
Colin Kass
Proskauer
1 General
1.1
Please identify the scope of claims that may be brought in
the U.S. for breach of competition law.
The Sherman Antitrust Act is the principal competition law in the
United States. Section 1 focuses on multi-firm conduct and outlaws
“every contract, combination, or conspiracy” that unreasonably
restrains trade. Classic examples of agreements deemed to violate
Section 1 include price fixing, bid rigging, and market allocation
schemes. Other conduct, such as exclusive dealing, non-compete
provisions in joint ventures, resale price maintenance, and other
vertical or horizontal restraints, may also be challenged under
Section 1.
Section 2 of the Act applies to single-firm conduct and forbids any
“monopolization, attempted monopolization, or conspiracy or
combination to monopolize”. Mere monopoly status does not
violate Section 2; rather a firm may violate Section 2 if it controls
the market for a product or service, and has obtained, or
subsequently exercises that power, in an anticompetitive manner.
Some of the conduct deemed to have violated Section 2 includes
tying, bundling, and exclusive dealing.
A separate statute, the Clayton Act, addresses certain conduct that
may otherwise fall outside of the Sherman Act. Section 7 of the
Clayton Act prohibits mergers and acquisitions where the effect
“may be substantially to lessen competition, or to tend to create a
monopoly”. Section 2(a), also known as the Robinson-Patman Act,
prohibits certain forms of price discrimination by a manufacturer
among its dealers or resellers. The Clayton Act also grants parties
who have been injured by an antitrust violation with a private right
of action. They may seek automatic treble damages, reasonable
attorneys’ fees, and an injunction to prevent future anticompetitive
practices.
Individual states also have competition laws of their own, which
may be invoked by plaintiffs if the challenged conduct occurred, in
part, in that state.
1.2
What is the legal basis for bringing an action for breach of
competition law?
See the answer to question 1.1.
1.3
Is the legal basis for competition law claims derived from
international, national or regional law?
Competition claims may be filed under both federal and state law.
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Scott M. Abeles
Except for indirect purchaser claims, most private claims are
brought under federal law. International law is not invoked for
substantive antitrust claims, but may play a role in certain
procedural issues, such as service of process.
1.4
Are there specialist courts in the U.S. to which
competition law cases are assigned?
No, there are not.
1.5
Who has standing to bring an action for breach of
competition law and what are the available mechanisms for
multiple claimants? For instance, is there a possibility of
collective claims, class actions, actions by representative
bodies or any other form of public interest litigation?
While the Clayton Act broadly affords “any person” who is “injured
in his business or property by reason of anything forbidden in the
antitrust laws” a right to sue, the antitrust standing doctrine limits
the Clayton Act’s scope. The Supreme Court has interpreted the
Clayton Act this way on the basis that, while “[a]n antitrust
violation may be expected to cause ripples of harm to flow through
the Nation’s economy”, there is “a point beyond which the
wrongdoer should not be held liable”. The Clayton Act’s framers,
it has held, “did not intend to allow every person tangentially
affected by an antitrust violation to maintain an action to recover
threefold damages for the injury to his business or property”. Blue
Shield of Virginia v. McCready, 457 U.S. 465, 476-477 (1982).
Accordingly, with rare exceptions, only direct purchasers and
competitors injured directly by the competition-reducing aspects of
the challenged conduct (e.g., a reduction in output, or a raising of
the rival’s costs of doing business attributable to exclusionary
conduct) have standing under federal antitrust law.
The obligation that the plaintiff shows that it was injured by the
competition-reducing aspects of the conduct is known as the
“antitrust injury” requirement. By requiring plaintiffs to prove that
an injury “flows from that which makes defendants’ acts unlawful”,
and “reflect[s] the anticompetitive effect … of the violation”, courts
are less likely to provide relief for conduct – like low prices to
consumers in a predation scheme, or increased competition
following a merger – that did not actually injure competition or
consumers. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S.
477, 489 (1977). Notably, governmental entities do not have to
satisfy standing requirements.
Representative, or named plaintiffs may bring antitrust claims on
behalf of a class if the representatives themselves have standing and
purport to sue on behalf of similarly situated entities (e.g., a direct
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There are different types of class actions, but the most common
requires the plaintiff to establish, by a preponderance of the
evidence, that: (i) the members of the proposed class are so
numerous that it is not practical to join them all in the same action
(“numerosity”); (ii) the claims of the members of the proposed class
present common questions of law and fact (“commonality”); (iii)
the claims of the members of the proposed class are typical of each
other (“typicality”); (iv) the representatives of the proposed class
can and will adequately represent the interests of the members of
the proposed class (“adequate representation”); and (v) common
questions of law and fact with respect to the class members’ claims
predominate over any individual questions presented by those
claims (“predominance”). Fed.R.Civ.P. 23(b)(3).
1.6
What jurisdictional factors will determine whether a court
is entitled to take on a competition law claim?
Before they may adjudicate antitrust claims, courts must be
satisfied that they have jurisdiction to do so. The inquiry is twopronged: courts need jurisdiction over the “subject matter” of the
suit, and over each defendant.
Subject Matter Jurisdiction: Federal district courts have exclusive
jurisdiction over federal antitrust suits. Once subject matter
jurisdiction is established, a plaintiff may add state law claims
arising from the same nucleus of operative facts (known as
“pendant jurisdiction”). State courts may only hear state antitrust
claims. In practice, however, defendants often have the ability to
“remove” state antitrust suits to federal court from a state court.
Controversy over subject matter jurisdiction may arise when a claim
concerns conduct alleged to have taken place outside of the United
States. U.S. courts have split over whether the Foreign Trade Antitrust
Improvements Act (the FTAIA) – which governs the reach of the
Sherman Act to foreign conduct – imposes a jurisdictional requirement
on plaintiffs, or provides a defence to defendants. Depending on the
court in which a claim is brought, when the alleged unlawful conduct
took place overseas (and does not directly involve “import commerce”,
which is covered by the Sherman Act), either the plaintiff or the
defendant will have to establish that the foreign conduct imposed (or
did not impose) a “direct, substantial, and reasonably foreseeable
effect” that caused the plaintiff’s alleged injury.
Personal Jurisdiction: Under the Clayton Act, a plaintiff may sue
an individual in any district “in which the defendant resides or is
found or has an agent”. 15 U.S.C. § 15. Jurisdiction over
corporations is broader; they may be sued “in the judicial district
whereof it is an inhabitant”, and “in any district wherein it may be
found or transacts business”. 15 U.S.C. § 22. Another statute, 28
U.S.C. § 1391(d), provides all federal district courts with personal
jurisdiction over “alien” (non-U.S.) defendants.
1.7
Does the U.S. have a reputation for attracting claimants
or, on the contrary, defendant applications to seize
jurisdiction and if so, why?
Antitrust litigation in the U.S. is initiated by private plaintiffs or a
governmental entity. While it is theoretically possible for a
defendant to initiate suit under the Declaratory Judgment Act, in
practice this rarely occurs.
1.8
Is the judicial process adversarial or inquisitorial?
It is adversarial.
2 Interim Remedies
2.1
Are interim remedies available in competition law cases?
Yes, interim remedies are available. In the merger context, the
federal government often seeks to obtain interim relief, which takes
the form of a “hold separate” order. Under a hold separate order,
the acquirer must keep the assets to be acquired separate and
distinct from its other assets until the case has been decided or a
suitable buyer can be found. Under Section 16 of the Clayton Act,
a private plaintiff may seek an injunction “against threatened loss or
damage by a violation of the anti-trust laws”. However, with the
exception of merger disputes, interim remedies are rarely sought in
U.S. antitrust cases. Such relief is inherently difficult to obtain in
any case, and is especially so in antitrust cases, since the alleged
harm, if proven, can generally be remedied through money damages
and a permanent injunction at the case’s conclusion.
2.2
USA
purchaser who sues on behalf of all direct purchasers). In addition
to the standing requirement, class actions are governed by Rule 23
of the Rules of Federal Procedure. While a named plaintiff may
move to certify a class at any time, it is more common to do so after
significant fact and expert discovery – on class issues, and on the
merits – has been conducted.
USA
What interim remedies are available and under what
conditions will a court grant them?
When sought, a showing of actual injury is not required; a threat of
“irreparable” – not merely monetary – harm is enough. A plaintiff
must also show: (i) a likelihood of success on the merits; (ii) that the
threatened injury outweighs the harm that the injunction may create
for the defendant; and (iii) that an injunction is in the public interest.
The factors are typically weighed on a “sliding scale”, i.e., a high
likelihood of success may excuse a weaker showing of irreparable
harm. Interim relief is most important in merger challenges. If the
plaintiff (usually the federal government) successfully obtains an
injunction against consummation of the merger, the deal will almost
invariably be abandoned by the merging parties.
3 Final Remedies
3.1
Please identify the final remedies which may be available
and describe in each case the tests which a court will
apply in deciding whether to grant such a remedy.
A plaintiff may obtain monetary and/or injunctive relief following a
successful verdict. Monetary relief is based, in the case of
consumers, on the magnitude of the overcharge caused by the
defendant’s violation. For competitor plaintiffs, lost profits and/or
the loss of value to its business as a going concern is the measure.
Damage awards are invariably the subject of expert opinion and
testimony, though the final determination is left to the jury (or
judge, in a bench trial). Damage assessments are subject to a more
lenient standard than liability determinations. The plaintiff
typically need not demonstrate its damages with exactitude, and
need not show that the antitrust violation was the sole cause of its
injuries. Rather, the plaintiff’s estimate must be reasonable and it
must show that the violation was a significant cause of its damages.
U.S. law regarding damages contains several interesting wrinkles.
Perhaps most importantly, treble (triple) damages are automatic for
any judgment under the U.S. antitrust laws – a plaintiff need not
show an egregious violation, but just a violation. Some state laws
contain automatic trebling as well. Moreover, each violator is held
“jointly and severally” liable for all damages, meaning that any one
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233
Proskauer
USA
defendant can be made to pay the entire judgment. Together, these
factors impose significant settlement pressure on defendants – even
a slim probability of a loss, once multiplied by the company’s
exposure, may counsel in favour of eliminating the risk via
settlement.
Defendants found liable, with one important exception, do not
receive a deduction from private judgments because they may have
paid a fine as part of a litigation, including a settlement, with the
federal government. The exception derives from the Antitrust
Criminal Penalty Enhancement and Reform Act, which limits an
award against a firm that has obtained “amnesty” from the federal
government, and then cooperated suitably with plaintiffs, to single
damages (and eliminates joint and several liability). A company
may receive amnesty if it is the first member of a cartel to disclose
the cartel’s existence to the Department of Justice.
In addition, just as defendants may not raise a “pass on” defence for
purposes of deflecting liability, judgments are not reduced by the
amount of an overcharge the direct purchaser may have passed on
to its customers, if any. In indirect purchaser, state law cases, the
purchaser does need to demonstrate that it has absorbed some of the
overcharge directly imposed on the direct purchaser, for the
purposes of liability and damages.
Injunctive relief can take many forms. In most cases, the court
orders the defendant to cease the anticompetitive conduct.
However, a court’s equitable powers are quite broad, and may
include both structural and behavioural remedies.
3.2
If damages are an available remedy, on what bases can a
court determine the amount of the award? Are exemplary
damages available?
See the answer to question 3.1.
3.3
Are fines imposed by competition authorities taken into
account by the court when calculating the award?
See the answer to question 3.1.
4 Evidence
4.1
What is the standard of proof?
In civil antitrust cases, the standard of proof is “preponderance of
the evidence”. That is, the plaintiff must prove that it is more likely
than not that the defendant violated the antitrust laws in the manner
alleged. There may be discrete issues for which the defendant bears
some burden of proof. For example, some courts have suggested
that the defendant must prove the procompetitive justifications for
its conduct, while plaintiffs must prove anticompetitive effects.
USA
relevant evidence containing an indicia of reliability is admissible,
with the judge or jury charged with weighing its persuasiveness in
their discretion.
Expert testimony is invariably offered by both sides in antitrust
cases on liability and, as necessary, damages. Expert opinion is also
critical to class certification, a turning point in blockbuster antitrust
cases. The admissibility of such evidence is subject to a “Daubert
challenge”, so named for the seminal U.S. Supreme Court case on
the issue. To withstand a Daubert challenge, it must be shown that
the expert is qualified to offer the subject opinions, the data offered
supports the opinions, the methods used were reliable, and the
proposed testimony will be helpful. Daubert directs judges to be
“gatekeepers” and to prevent the court from becoming a forum for
“junk science”.
Even if admitted, however, the fact-finder may weigh the
persuasiveness of expert testimony the same way it weighs any
other evidence, with broad discretion.
4.4
Discovery is famously broad under the Federal Rules of Civil
Procedure (and in most, if not all states, which employ similar
rules). A party “may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defence”.
Fed.R.Civ.P. 26(b)(1). The rules do provide that, in addition to
relevance and privilege, discovery may be limited on grounds of
excess burden. In practice, however, discovery is wide-ranging,
lengthy, and expensive, with costs in the multi-millions of dollars.
Except in competitor cases featuring a plaintiff and defendant of
similar size, the discovery burden falls most heavily on corporate
defendants, who must supply most of the documents, written
responses, and witnesses demanded by the plaintiffs.
Third party discovery is an important element of antitrust litigation.
For example, litigants frequently seek discovery of a defendant’s
competitors, customers, former employees, and others with
potentially helpful information. Though not as broad as party
discovery, the Federal Rules do provide litigants with access to third
party discovery via the court’s subpoena power, which parties may
invoke. See Fed.R.Civ.P. 45. Litigants are required to limit the
burden on third parties as possible, and may be ordered to reimburse
third parties for a portion of their expenses.
Discovery begins after a case is filed (and sometimes after motion
to dismiss briefing is adjudicated), not before. That said, potential
parties may, if they wish, exchange information with one another
informally – usually a defendant will participate in such an
exchange if it believes doing so can head off litigation.
4.5
4.2
Who bears the evidential burden of proof?
The plaintiff bears the burden.
4.3
Are there limitations on the forms of evidence which may
be put forward by either side? Is expert evidence
accepted by the courts?
The admissibility of evidence in federal trial proceedings is
governed by the Federal Rules of Evidence. The general rule is that
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What are the rules on disclosure? What, if any,
documents can be obtained: (i) before proceedings have
begun; (ii) during proceedings from the other party; and
(iii) from third parties (including competition authorities)?
Can witnesses be forced to appear? To what extent, if
any, is cross-examination of witnesses possible?
A witness may be ordered to appear at trial if: (a) the trial court is
within 100 miles of where the person resides, is employed, or
regularly transacts business in person; or (b) if the issuing court is
in the same state where the witness resides, is employed, or
regularly transacts business in person, if the person: (i) is a party or
a party’s officer; or (ii) is commanded to attend a trial and would not
incur substantial expense. See Fed.R.Civ.P. 45(c).
Any witness may be cross-examined by the other party.
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Does an infringement decision by a national or
international competition authority, or an authority from
another country, have probative value as to liability and
enable claimants to pursue follow-on claims for damages
in the courts?
A final judgment of guilt (following trial, or a plea) in a criminal
antitrust matter constitutes “prima facie evidence against such
defendant” in follow-on civil actions based on the same set of facts
and applicable law. 15 U.S.C. § 16(a). The law distinguishes
between judgments of guilt on one side and “consent judgments or
decrees” and pleas of nolo contendere (no contest, but no
admission) on the other. Id. The latter are not given preclusive
effect if entered “before any testimony has been taken”. Id. While
the Department of Justice enters into consent decrees for less
serious offences, defendants must petition the court to enter pleas of
nolo contendere, and the court must solicit the government’s views
on whether to accept it. DOJ’s policy is to oppose such requests.
See United States Attorney Manual 9-16.010 (U.S. Attorneys
should refuse to consent to nolo contendere pleas in all but “the
most unusual circumstances”).
4.8
Is there provision for the national competition authority in
the U.S. (and/or the European Commission, in EU
Member States) to express its views or analysis in
relation to the case? If so, how common is it for the
competition authority (or European Commission) to do
so?
A governmental entity may seek to offer its views as to a private
case in one of two ways: (i) by filing an amicus curiae (“friend of
the court”) brief setting forth its interests in the case, and its views;
or (ii) by moving to intervene in the case, in whole or in part, as a
party. In practice, the government sometimes moves to intervene
for the limited purpose of protecting an ongoing investigation from
civil discovery, by seeking a stay. When antitrust cases come before
the Supreme Court, the Court frequently requests the “views of the
Solicitor General” (the executive officer who represents the federal
government before the Court), by way of an amicus brief.
5 Justification / Defences
Courts may also go further and bar the defendant from litigating its
liability whatsoever under the doctrine of collateral estoppel. Id.
(“[n]othing contained in this section shall be construed to impose
any limitation on the application of collateral estoppel”). The
application of collateral estoppel is discretionary with the court.
When the prior judgment is a criminal conviction, it may be applied
under these circumstances: “(1) the prior conviction must have been
for a serious offense so that the defendant was motivated to fully
litigate the charges; (2) there must have been a full and fair
[criminal proceeding] to prevent convictions of doubtful validity
from being used; (3) the issue on which the prior conviction is
offered must of necessity have been decided [by an adjudication of
guilt]; and (4) the party against whom the collateral estoppel is
asserted was a party or in privity with a party to the prior [criminal
proceeding]”. United States v. Real Property Located at Section 18,
976 F.2d 515, 518 (9th Cir. 1992).
5.1
In practice, the collateral estoppel battleground centers on the third
factor, concerning whether the issues in the criminal trial (or, facts
as pled to) are identical to those in the civil follow-on proceeding.
Courts carefully scrutinise the available record – facts stated in the
plea, during an allocution (colloquy with the sentencing judge to
ensure a factual basis for the plea), or the trial transcripts, if
applicable. Accordingly, defendants pleading to offences often
engage in strenuous negotiations with the authorities to limit the
scope of the plea to the degree possible.
Indirect purchasers do not have standing to sue under federal
antitrust law, and there is no passing on defence. Accordingly, the
first non-defendant purchaser in the chain of distribution may
recover the full amount of any overcharge. While indirect
purchaser lack standing under federal antitrust law, certain states do
confer a private right of action on indirect purchasers. These states
generally do recognise a passing on defence so that each indirect
purchaser may recover only for that portion of the overcharge that
it received and was unable to pass on to its own customers.
Even if the prior adjudication is not granted preclusive effect,
plaintiffs use the existence of the prior adjudication in myriad ways:
to establish personal jurisdiction; to bolster complaints; to protect
against a motion to dismiss; to shape discovery; to fend off
summary judgment; and to help make a case at trial. In sum, prior
findings of guilt in related matters tend to permeate a case from start
to finish.
4.7
How would courts deal with issues of commercial
confidentiality that may arise in competition proceedings?
Courts enter protective orders to protect sensitive information
disclosed in discovery from publication. Broadly speaking, these
orders, which are often the subject of detailed negotiations among
the parties, set forth the manner in which the parties designate
information as confidential or otherwise, who may receive such
information, and how it may be used.
USA
4.6
USA
Is a defence of justification/public interest available?
While there is no “public interest” defence available in U.S.
antitrust litigation, Congress and the courts have established a
number of immunities for conduct that might otherwise violate the
law. For example, courts apply the Noerr-Pennington doctrine to
allegations that legislative or judicial activity – like lobbying the
government, or filing a lawsuit – harmed competition, so long as the
conduct was not a “sham”. Various interest groups, such as labour
unions, certain farming co-ops, certain sports leagues, and others
have been given legislative or judicial immunity from the antitrust
laws for discreet conduct.
5.2
Is the “passing on defence” available and do indirect
purchasers have legal standing to sue?
6 Timing
6.1
Is there a limitation period for bringing a claim for breach
of competition law, and if so how long is it and when does
it start to run?
The Clayton Act provides a claimant with up to four years from the
accrual of the cause of action to file suit. The accrual period begins,
in theory, when the plaintiff suffers injury to its business or
property. That said, many antitrust suits challenge conduct that
took place more (sometimes much more) than four years before the
suit was filed. That is because the running of that limitation period
may be deferred or “tolled” on various grounds.
The most frequent tolling battleground involves allegations that the
defendants “fraudulently concealed” their conduct (common, of
course, to conspiracy claims) so that even the most diligent injured
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plaintiff could not have discovered its injury and filed suit within
the limitations period. If shown, fraudulent concealment will toll
the statute of limitations, which will then begin to run when the
plaintiff knew or should have known of the conduct giving rise to
the claim. Tolling will also apply to claims belonging to unnamed
members of class in a class action until the claimant “opts out” of
the class or class certification is denied in a final decision. The
limitations period will also toll as to conduct that is the subject of
“any civil or criminal proceeding … instituted by the United
States”, during such a suit’s pendency and one year thereafter.
6.2
Broadly speaking, how long does a typical breach of
competition law claim take to bring to trial and final
judgment? Is it possible to expedite proceedings?
Antitrust cases are notoriously lengthy. The time from filing to
final judgment will vary based on the venue, and even the judge, but
relatively simple antirust cases still tend to take at least two years to
try. More complex cases, like class actions, take as many as five
years (or more) to complete discovery, class briefing, summary
judgment, and trial.
7 Settlement
7.1
Do parties require the permission of the court to
discontinue breach of competition law claims (for example
if a settlement is reached)?
In certain circumstances, parties require court approval before a
case will be dismissed. In cases in which the government is a party,
the court is required to review and approve the settlement terms
under the Tunney Act. In class actions, the court must hold a
“fairness hearing” that provides objectors to a settlement an
opportunity to be heard, and approve any such settlement. That
said, courts reject a proposed settlement on very rare occasions. In
other cases, court approval of the terms of settlement is not
required.
8 Costs
8.1
Can the claimant/defendant recover its legal costs from
the unsuccessful party?
A prevailing plaintiff – but not a prevailing defendant – may
recover its legal fees and costs.
8.2
Are lawyers permitted to act on a contingency fee basis?
Yes, they may.
8.3
Is third party funding of competition law claims permitted?
If so, has this option been used in many cases to date?
Private civil cases in the U.S. are often brought by attorneys
working on a contingency fee basis, roughly 20-35 per cent of the
award, if any. Because of this, and certain state legal ethics rules, it
is not clear whether there are significant amounts of third party
funding or alternative funding beyond pursuing the case on
contingency.
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9 Appeal
9.1
Can decisions of the court be appealed?
Final judgments in civil litigation, including competition litigation,
are subject to appeal as a matter of right. Certain non-final
judgments – as relevant here, a decision to certify, or not, a class
action – are subject to discretionary appeal (the court of appeals
may elect not to hear the appeal before final judgment in the case).
10
Leniency
10.1 Is leniency offered by a national competition authority in
the U.S.? If so, is (a) a successful and (b) an
unsuccessful applicant for leniency given immunity from
civil claims?
The Department of Justice considers its leniency programme its
“most important investigative tool for detecting cartel activity”.
Corporations and individuals who report their cartel activity and
cooperate in the Division’s investigation of the cartel reported can
avoid criminal conviction, fines, and prison sentences if they meet
the programme’s criteria. Only the first qualifying corporation may
obtain leniency (though firms that are not first, but cooperate early,
can receive discounted sentences). If the leniency application is
approved, the firm’s cooperating employees will also be immune
from criminal prosecution. A separate but related leniency
programme is available for individuals who are the first to report
criminal antitrust activity.
A leniency application is a major corporate act. It requires the firm
to report “the wrongdoing with candor and completeness”, to
provide “full, continuing and complete cooperation to the Division
throughout the investigation”, to ensure its “confession of
wrongdoing is truly a corporate act, as opposed to isolated
confessions of individual executives or officials”, and it will usually
be required to provide “documents, information, and materials
wherever located” and use “its best efforts to secure the cooperation
of its current directors, officers, and employees” and pay
“restitution to victims”.
Successful leniency applicants do not receive immunity from civil
claims. However, the Antitrust Criminal Penalty Enhancement and
Reform Act limits damages claims against such firms to single
damages if the applicant cooperates with the civil plaintiffs.
10.2 Is (a) a successful and (b) an unsuccessful applicant for
leniency permitted to withhold evidence disclosed by it
when obtaining leniency in any subsequent court
proceedings?
No, he is not.
11
Anticipated Reforms
11.1 Highlight the anticipated impact of the EU Directive on
Antitrust Damages Actions at the national level and any
amendments to national procedure that may be required.
This is not applicable.
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Most changes to U.S. competition litigation take place through the
pronouncements of the Supreme Court when a given issue is
presented, and accepted, for review. In recent years, the Supreme
Court has interpreted, or reinterpreted, the antitrust laws in
significant ways affecting price discrimination, resale price
maintenance, tying, predatory bidding, “reverse payments” among
pharmaceutical companies, and other areas. The Supreme Court
has also had an impact on competition litigation with broader (nonantitrust-specific) holdings on pleading standards and class action
requirements. Because Supreme Court review is discretionary, it is
difficult to determine when the next substantive or procedural
change in the law will come about.
Further change in antitrust practice takes place at the agency –
Department of Justice and Federal Trade Commission – level.
Because the leaders of the antitrust sections of each section are
political appointees (or are chosen by political appointees), change
tends to follow Presidential elections. Presently, there do not
appear to be any significant changes underway regarding antitrust.
Finally, reforms may be made by Congress. However, these
reforms take place quite rarely and, again, there appear to be no
significant competition law reforms under serious consideration by
Congress.
Colin Kass
Scott M. Abeles
Proskauer
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Proskauer
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Colin Kass is a Washington, DC-based antitrust Partner in the
Litigation Department of Proskauer, where he serves as ViceChair of the Antitrust Group. An experienced antitrust and
commercial litigation lawyer, Colin has litigated cases before
federal and state courts throughout the United States and before
administrative agencies. His practice spans a wide range of
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and unfair competition-related cases.
Please visit Colin’s full professional profile at:
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11.2 Are there any other proposed reforms in the U.S. relating
to competition litigation?
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Scott Abeles is a Washington, DC-based antitrust Associate in
the Litigation Department of Proskauer. An experienced trial
lawyer and appellate advocate, Scott’s practice focuses
particularly on high-stakes antitrust, regulatory and constitutional
matters. He is the author of a subchapter of the ABA’s Antitrust
Law Development’s 6th and 7th, and has published in Global
Legal Insights (Global Legal Group), Legal Times, The New
Jersey Law Journal and The Antitrust Litigator.
Please visit Scott’s full professional profile at:
http://www.proskauer.com/professionals/scott-abeles/.
Proskauer’s preeminent Antitrust Group has extensive experience litigating cases and representing clients throughout the world
on a wide variety of complex mergers, cartel, and other anti-competitive practices investigations. Our lawyers’ frontline experience
before the agencies and the courts empowers us to provide clients with invaluable insight into the business, the strategy and the
economics of the situation. This is especially valuable as U.S. and international competition enforcement authorities become
increasingly aggressive.
We advise clients on multibillion-dollar, industry-transforming transactions and guide them through the complex U.S., European,
and other international antitrust regulatory regimes. Our powerhouse litigation team has a strong track record of successfully
litigating numerous groundbreaking antitrust cases before juries and in bench trials, and has handled both transactional and major
anti-competitive practices investigations as well as monopolisation cases across a range of diverse industries including healthcare,
pharmaceutical, high tech and sports, among many others.
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