Private Antitrust Litigation 2017 Private Antitrust Litigation 2017
Total Page：16
File Type：pdf, Size：1020Kb
GETTING THROUGH THE DEAL Private Antitrust Litigation Private Antitrust Litigation Antitrust Private Consulting editor Samantha Mobley 2017 2017 © Law Business Research 2016 Private Antitrust Litigation 2017 Consulting editor Samantha Mobley Baker & McKenzie LLP Publisher Law The information provided in this publication is Gideon Roberton general and may not apply in a specific situation. [email protected] Business Legal advice should always be sought before taking Research any legal action based on the information provided. Subscriptions This information is not intended to create, nor does Sophie Pallier Published by receipt of it constitute, a lawyer–client relationship. [email protected] Law Business Research Ltd The publishers and authors accept no responsibility 87 Lancaster Road for any acts or omissions contained herein. The Senior business development managers London, W11 1QQ, UK information provided was verified between July and Alan Lee Tel: +44 20 3708 4199 August 2016. Be advised that this is a developing [email protected] Fax: +44 20 7229 6910 area. Adam Sargent © Law Business Research Ltd 2016 [email protected] No photocopying without a CLA licence. Printed and distributed by First published 2003 Encompass Print Solutions Dan White Fourteenth edition Tel: 0844 2480 112 [email protected] ISSN 1742-2280 © Law Business Research 2016 CONTENTS Plaintiff overview 5 Italy 82 Robert Kaplan and Elana Katcher Mario Siragusa, Marco D’Ostuni and Cesare Rizza Kaplan Fox & Kilsheimer LLP Cleary Gottlieb Steen & Hamilton LLP The EU Damages Directive’s framework on passing on Japan 90 of overcharges – does it work? 8 Hideto Ishida and Takeshi Suzuki Geert Goeteyn Anderson Mōri & Tomotsune Shearman & Sterling LLP Lithuania 95 Australia 11 Ramūnas Audzevičius and Vytautas Saladis Ross Zaurrini and Elizabeth Sarofim Motieka & Audzevičius Ashurst Australia Netherlands 100 Austria 17 Ruben Elkerbout, Gerben Smit and Jan Erik Janssen Heinrich Kühnert and Michal Stofko Stek Dorda Brugger Jordis Scotland 106 Canada 22 Catriona Munro and Jennifer Marshall David Kent, Éric Vallières, Joan Young and Lisa Parliament Maclay Murray & Spens LLP McMillan LLP South Africa 113 China 27 Mark Garden and Lufuno Shinwana Ding Liang ENSafrica Beijing DeHeng Law Offices Sweden 121 Denmark 33 Tommy Pettersson, Stefan Perván Lindeborg, Sarah Hoskins Henrik Peytz, Thomas Mygind and Mia Anne Gantzhorn and Mårten Andersson Nielsen Nørager Law Firm LLP Mannheimer Swartling England & Wales 38 Switzerland 126 Elizabeth Morony and Ben Jasper Daniel Emch, Anna-Antonina Gottret and Stefanie Schuler Clifford Chance LLP Kellerhals Carrard France 59 Turkey 131 Jacques Buhart, Lionel Lesur and Louise-Astrid Aberg M Fevzi Toksoy, Bahadır Balkı and Sera Erzene Yıldız McDermott Will & Emery ACTECON Competition & Regulation Consultancy Germany 66 Ukraine 137 Alexander Rinne Igor Svechkar, Alexey Pustovit and Oleksandr Voznyuk Milbank, Tweed, Hadley & McCloy LLP Asters Hong Kong 72 United States 141 Clara Ingen-Housz, Gavin Lewis and Anna Mitchell James A Keyte, Karen Hoffman Lent, Paul M Eckles, Linklaters Tiffany Rider and Anjali B Patel Skadden, Arps, Slate, Meagher & Flom LLP Israel 76 David E Tadmor and Shai Bakal Tadmor & Co Yuval Levy & Co 2 Getting the Deal Through – Private Antitrust Litigation 2017 © Law Business Research 2016 PREFACE Preface Private Antitrust Litigation 2017 Fourteenth edition Getting the Deal Through is delighted to publish the fourteenth edition of Private Antitrust Litigation, which is available in print, as an e-book and online at www.gettingthedealthrough.com. Getting the Deal Through provides international expert analysis in key areas of law, practice and regulation for corporate counsel, cross-border legal practitioners, and company directors and officers. Throughout this edition, and following the unique Getting the Deal Through format, the same key questions are answered by leading practitioners in each of the jurisdictions featured. Our coverage this year includes Israel and Ukraine. Getting the Deal Through titles are published annually in print. Please ensure you are referring to the latest edition or to the online version at www.gettingthedealthrough.com. Every effort has been made to cover all matters of concern to readers. However, specific legal advice should always be sought from experienced local advisers. Getting the Deal Through gratefully acknowledges the efforts of all the contributors to this volume, who were chosen for their recognised expertise. We also extend special thanks to the consulting editor, Samantha Mobley of Baker & McKenzie LLP, for her continued assistance with this volume. London August 2016 www.gettingthedealthrough.com 3 © Law Business Research 2016 Kaplan Fox & Kilsheimer LLP PLAINTIFF OVERVIEW Plaintiff overview Robert Kaplan and Elana Katcher Kaplan Fox & Kilsheimer LLP Introduction and instead concluded that the phrase could only be interpreted to refer The February death of Justice Antonin Scalia, who had served with relish to currently valid laws. Having thus delved into a field of interpretation for 30 years as the Supreme Court’s most influential conservative voice, led acknowledged to be reserved for the states, the majority then found to a sea change in the legal world. By the end of that month, Dow Chemical that California’s interpretation could only be explained by animus to Company announced that it had entered into a US$835 million settlement arbitration, violating the principle that arbitration contracts must be agreement to resolve a price-fixing class action rather than pursue its placed on ‘equal footing with all other contracts’ (136 S Ct at 471). The planned Supreme Court challenge to class certification. The company court held California’s own interpretation to be pre-empted by the Federal openly attributed its capitulation to the loss of Justice Scalia, who had Arbitration Act. written two decisions that were key to its appeal. In its announcement, Dow Justice Ginsburg, joined by Justice Sotomayor, dissented. While stated that ‘[g]rowing political uncertainties due to recent events within the majority insisted that their conclusion went no further than ‘well- the Supreme Court and increased likelihood for unfavorable outcomes for established law’, Justice Ginsburg saw that the decision went beyond the business involved in class action suits have changed Dow’s risk assessment court’s prior precedents upholding unambiguous class-arbitration bans of the situation’ (press release, Dow Chemical Co, ‘Dow Announces in contracts of adhesion. After DIRECTV, consumers will ‘lack even the Settlement in Urethanes Class Action Litigation’ (26 February 2016). benefit of the doubt when anomalous terms in such contracts reasonably The long-term impact of Justice Scalia’s absence from the class action could be construed to protect their rights’ (136 S Ct 476). stage will not be measurable until his vacancy is filled. In the interim, the Justice Ginsburg noted that, because no rational consumer would court’s post-Scalia decisions have taken a cautious, compromising turn that fund an individual arbitration to redress a claim worth a few dollars, reflects increased leverage for the liberal wing of the bench, who can now the Supreme Court’s arbitration precedents have ‘predictably resulted force 4-4 ties that will uphold whatever decision is on appeal. This trend of in the deprivation of consumers’ rights to seek redress for losses, and… narrow, tightly drawn decisions will surely continue until the new balance have insulated powerful economic interests from liability for violations of the court is altered after the next presidential inauguration in 2017. of consumer-protection laws’ (136 S Ct at 477). She found nothing in The four opinions discussed here illustrate the impact of the court’s the actual text or history of the FAA to justify this recent approach. The current numerical balance on cases affecting the class-action world. FAA was passed in 1925 as a means of encouraging the enforcement of ‘commercial arbitration agreements between merchants with relatively Class arbitration bans equal bargaining power’(Id). It was not intended to serve, as it does DIRECTV Inc v Imburgia, 136 S Ct 463 (2015) today, as an absolute shield for liability for unlawful corporate wrongs Two months prior to Justice Scalia’s death, the Supreme Court struck yet against consumers. another blow against consumers seeking court redress against alleged The majority opinion was written by Justice Breyer and joined by Justice corporate wrongs. In 2005, the California Supreme Court declared that Kagan, both of whom had dissented in Concepcion, and Justice Kagan had class-arbitration waivers in consumer contracts are unconscionable, and recently written a fiery dissent of her own in another notorious Supreme therefore unenforceable under California law. In 2011, the Supreme Court Court arbitration case, American Express Co v Italian Colors Restaurant, had held California’s rule to be pre-empted by the Federal Arbitration 133 S Ct 2304 (2013). Their position in DIRECTV is a discouraging sign for Act (AT&T Mobility LLC v Concepcion, 131 S Ct 1740 (2011)). In 2007, plaintiffs and consumer advocates looking for a reversal of course in a post- while the rule was still in force, DIRECTV entered into a form consumer Scalia Supreme Court. contract of its own drafting with California customers that included an arbitration clause with a class