Casenote - Third Party Litigation Funding

Our December CasenoteThird Party Litigation Funding - The facts and estimates for the UK (doubleclick to download) is based on interviews during the latter part of 2011 with all UK-based funders .  It provides the first empirical  overview of this emerging sector.  Among the findings are that there were 10 active dedicated TPLF investors in the UK, most had been established in the last several years, and others were poised to enter the sector.  The 10 UK based investors had raised over £160 million with an additional £300 million raised on AIM to fund litgation mainly in the USA. The UK based TPLF investors had the financial capacity to fund an estimated 46 large commercial claims annually. The TPLF investors had rigorous selection criteria which saw them only fund 1 in 12 claims reviewed.  The financial returns to date have been high but so too have been the risks.  The Casenote is based on a larger study by Dr Veljanovski commissioned by the Searle Institute of Civil Justice at George Mason University entitled Third Party Litigation Funding in Europe (doubleclick to download most recent draft) to be published in the Journal of Law, Economics and Public Policy

Casenote - FOXTEL/Austar Pay TV Merger

Out August 2011 Casenote FOXTEL/Austar merger examines the issues raised by the proposed acquisition of regional pay TV operator Austar by FOXTEL. The Australian Competition and Consumer Commission (ACCC) has published an Issues Paper raising concerns over the proposed acquisition.  It sees this as creating a "near monopoly of pay TV".  But the ACCC's counterfactual required to asses the competitive effects of a merger under s 50 Competition and Consumer Act 2010 is based on the development of the state-sponsored and funded National Broadband Network (NBN) enhancing competition between FOXTEL and Austar.  Yet the NBN is deeply anti-competitive. This Casenote critically examines the ACCC's use of this benchmark to evaluate the proposed acquisition. 

Use of Market Power and Counterfactuals in New Zealand and Australian Competition Laws

These two papers (double click to download) look at recent decisions and controversies surrounding the counterfactual test under s 36 of the New Zealand Commerce Act 1986, and s46 of the Australian Competition and Consumer Act 2010 respectively.  In 2010 the New Zealand Supreme Court in 0867 affirmed the counterfactual as the test to determine whether there has been a ‘use’ of market power (the equivalent of monopolisation under the Sherman Act, or abuse of dominance under Article 102TFEU) for a proscribed purpose. Veljanovski’s paper traces through the development of the s36 counterfactual, and concludes that it is flawed and potentially underinclusive. Featherston examines the development of and problems associated with the Australian equivalent s46 counterfactual and its relevance to New Zealand.  Both papers were delivered at the 25^th Competition Policy and Law Institute of New Zealand (CPLINZ) conference held in Wellington in August 2011.

Casenote - Counterfactual in Competition Cases
Our January 2011Casenote Counterfactual in Competition Cases - Its emergence in European and UK competition law looks at the growing use of the counterfactual.  The term counterfactual has not been a feature of European competition law, with the exception of merger control, to date.  However, with the move to an effects-based approach, counterfactuals are being used occasionally, hesitantly and with mixed results. This Casenote examines the use of counterfactuals in 'behavioural' competition law investigations based on a review of UK and EC competition guidelines, decisions, and several leading UK cases.  The Casenote is based on a more detailed analysis in an article entitled 'Counterfactual Tests in Competition Law' Competition Law Journal, 2010, Vol. 9.

New Study of European Cartel Fines under the 2006 Penalty Guidelines
A new report undertakes a statistical analysis of cartel fines imposed in prosecutions initiated by the European Commission from late June 2006 to 2010.  European Cartel Fines under the 2006 Penalty Guidelines - A statistical analysis reviews the outcome of 21 cartel decisions imposing fines on 22 cartels and 168 firms. It looks closely at how the Commission built-up its fines based on the 2006 Penalty Guidelines. Among the main findings are - that fines are considerably less than provided for under the guidelines, that the average fine per firm has declined significantly since 2007, that repeat offenders are let off lightly, and that the Commission's published decisions redacted key information on the fining procedure.  This report is a companion piece to our updated analysis of fines imposed by the Commission between 1998 to 2006 under the earlier 1998 Penalty Guidelines.

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