The certifications of the first two opt-out collective actions – Gibson v. Pride Mobility Scooter and Merricks v MasterCard – were dismissed by the Competition Appeal Tribunal (CAT) under the new UK competition law ‘class action’ regime. Here a critical assessment of the CAT’s two judgments is undertaken focusing on common issues, pass-on, distribution of damages, costs and funding of the emerging UK collective certification process.
Credit Cards, Counterfactuals and Antitrust Damages
Journal of European Law & Practice, 2018
The English courts in Sainsbury’s v. MasterCard and Morrisons v. MasterCard came to opposite conclusions on the illegality of MasterCard’s multilateral interchange fees (MIFs). While both courts posited bilateral counterfactuals, the Competition Appeal Tribunal (CAT) in Sainsbury’s held that this was a realistic counterfactual and that MasterCard had infringed Article 101(1); while the High Court in Morrisons found that the bilateral counterfactual was not realistic because MasterCard would not survive if faced with competition from Visa’s higher interchange fees. The courts also used very different methods to calculate the counterfactual interchange fee. Here a critical assessment of the reasoning underpinning the two judgments is undertaken. The central thesis is that the counterfactual approach is flawed because of the constrained nature of and procedural constraints arising in litigation.
The Law and Economics of Pass-on in Price Fixing Cases
European Competition Law Review, 2017
Sainsbury’s v. MasterCard establishes the pass-on “defence” in English/UK law. The Competition Appeal Tribunal set out a two-part test which it erroneously distinguished from the economists’ notion of pass-on. It then went on the develop key elements of legal test for pass-on in price fixing cases. This article critically assesses the Tribunal’s judgment within a law and economics framework. It provides a rounded interpretation of pass-on as both a defence and offence, the different evidentiary standards and principles used, and the potential for inconsistency which could see defendants liable to claims more than the overcharges.
A Statistical Analysis of UK Antitrust Enforcement
Journal of Competition Law & Economics, 2014
The UK Office of Fair Trading (OFT) was a highly rated competition law enforcer. Yet its antitrust performance fell far short of this image. Here a critical and empirically based assessment of the OFT’s antitrust enforcement activities is undertaken and the claim that they had a “significant deterrent effect”. It concludes that this evidence is flawed and not credible.
Market Power and Counterfactuals in New Zealand Competition Law
Journal of Competition Law & Economics, 2013
This article reviews recent decisions and controversies surrounding the counterfactual test under section 36 of the New Zealand Commerce Act 1986. In 2010, the Supreme Court in 0867 affirmed the counterfactual as the test to determine whether there has been a “use” of market power for a proscribed purpose. The discussion traces the development of the section 36 counterfactual, and concludes that it is flawed and underinclusive. It also compares it to the use of the counterfactual under the identical section 46 of the Australian Competition and Consumer Act 2010, which is used more flexibly.
Margin Squeeze – An overview of EU and national case law
Competition Case Law Digest, 2013
This article reviews the law and economics of an anti-competitive margin squeeze as been developed by the European Commission and national competition authorities together with a critical assessment of the European Court of Justice’s Telia/Sonera judgment in early 2012.
Based on interviews of all UK based third party litigation funders the article provides empirical evidence on the nature, extent and type of third party funding of litigation. It also examines the emergence of new group of third party funders in Europe focused on follow-on cartel damage claims. The discussion considers policy questions such as the justification for third party funding and its impact.
The standard of proof in merger cases has become controversial and confusing after the Federal Court’s decision in Metcash. This article reviews the use of counterfactuals and the inconsistencies inherent in the ‘real chance’ standard of proof. It also critically examines the different approaches in Metcash, and the more formal approach by the New Zealand High Court in the Warehouse decision. These are assessed using probability theory. The discussion also examines the use of counterfactuals in market power and anticompetitive practices cases in Australian and New Zealand competition laws.
Based on an empirical analysis of cartel prosecutions from 2007, this article determines how the European Commission fines cartels. The fines are compared with those imposed by the European Commission during 1999 to 2006. The main findings are that, while fines have increased significantly, this has been due mainly to less generous reductions under the Commission’s leniency program; and that in some areas the Commission has not followed its own guidelines. Estimated fine-to-sales ratios together with new research on overcharges and detection rates suggest that fines may be closer to those for optimal deterrence than previously thought.
This article looks review the growing use of counterfactuals in European and UK competition laws based on a review of UK and EC competition guidelines, decisions, and several leading UK cases. It offers a critical assessment of the concept, the way it has been applied in the case law, and the pitfalls.
Cartel Fines in Europe – Law, practice and deterrence
World Competition, 2007
This article examines the law, practice and evidence on fines for price-fixing under European competition law. It is the first comprehensive quantitative analysis of European cartel fines based on 30 fully reported cartel decisions and appeals. It also examines the impact of the amended 2006 penalty guidelines.
This chapter sets out the basic economics of cartel formation and stability, the methods of estimating overcharges and but for prices, and concludes with a brief discussion of multiple damage claims for price-fixing. It draws on recent cartel prosecutions decisions of the European Commission.
Price Squeezes, Foreclosure, and Competition Law – Principles and guidelines
Journal of Competition & Regulation in Network Industries, 2003
This article looks at the definition, conditions and evidence necessary to establish that a price squeeze is an exclusionary abuse under European competition law. It shows that the necessary conditions are demanding, and that the empirical test for a price squeeze must be carried out carefully. It offers practical guidelines for indentifying an exclusionary price squeeze and on the appropriate calculation of downstream margins (the “imputation test”).