On 6 October 2021, a preliminary ruling of the Court of Justice of the European Union (“CJEU”) in Sumal confirmed that follow-on damages actions can be brought against subsidiaries of companies found to have infringed EU competition law. This note briefly analyzes the judgment and the implications thereof.

Continue Reading The CJEU’s Sumal Judgment: Parental Liability is “Going Down”

Introduction

The wide understanding of the notion of “undertaking” affords the European Commission (“Commission”) broad discretion when identifying the entities liable for competition law infringements, enabling it to attribute liability to all companies that constitute a single economic unit, such that a parent company can be liable for the wrongdoings of its subsidiary. The Commission also relies on the principle of economic continuity to establish liability when corporate groups are reconstructed.

With the increase of private competition law enforcement, the question arises whether individuals may rely on these concepts when establishing liability in private lawsuits. The recent Sumal and Skanska cases confirm that EU Courts are in favour of extending the doctrine of “undertaking” to private damages claims. In his opinion of 15 April 2021 in Sumal, Advocate General (“AG”) Pitruzzella  proposes that a national court can order a subsidiary to pay compensation for the harm caused by anticompetitive conduct of its parent company. In March, the CJEU decided, in Skanska, that the principle of economic continuity applies in the context of follow-on damages claims.
Continue Reading EU Courts extend the doctrine of “undertaking” to private claims for damages

Covington’s four-part video series offers snapshot briefings on key emerging trends in UK Competition Law. In part two, James Marshall and Sophie Albrighton focus on current trends in enforcement and litigation. They are joined by guest speaker Louise Freeman, co-chair of Covington’s Commercial Litigation and European Dispute Resolution Practice Groups, who has extensive experience

The UK Competition Appeal Tribunal (“CAT”) has made it more difficult for defendants in follow-on competition damages claims to plead that a claimant has mitigated any overcharge by reducing the costs paid to other suppliers in a recent judgment (“Royal Mail/BT v DAF”).
Continue Reading UK Competition Appeal Tribunal adds a hurdle to reliance on the pass-on defence

The UK Supreme Court has today ruled in favour of Walter Merricks, the former head of the UK Financial Ombudsman Service., in a hotly-anticipated judgment in the first opt-out competition class action brought in the UK.

Background

Mr Merricks is the proposed class representative for 46.2 million people who, between 22 May 1992 and 21 June 2008, purchased goods and/or services from businesses in the UK that accepted MasterCard cards.  Mr Merricks has valued that claim at in excess of £14 billion (and this sum will likely now be even greater, with interest having continued to run since the claim was filed in September 2016).  Our commentary on the earlier Court of Appeal decision in the case, with which the Supreme Court largely agreed, can be found here.
Continue Reading UK Supreme Court lowers the bar for collective actions

The Covington US and EU Competition/Antitrust teams will be updating you regularly, through the Covington Competition blog, on the competition/antitrust law implications – both procedural and substantive – of the COVID-19 crisis in the US and the EU.  This is our update for Friday 29 May 2020. Today’s new updates as compared to the previous update are highlighted – these are the headlines:

  • Today’s US update:
    • The FTC’s Director of the Bureau of Competition published a blog post on the failing firm defense. Skip to relevant section.
  • Today’s EU updates:


Continue Reading COVID 19 – US and EU Competition Law Implications (29 May 2020)

The Covington US and EU Competition/Antitrust teams will be updating you regularly, through the Covington Competition blog, on the competition/antitrust law implications – both procedural and substantive – of the COVID-19 crisis in the US and the EU.  This is our update for Tuesday 12 May 2020. Today’s new updates as compared to the previous update are highlighted – these are the headlines:


Continue Reading COVID 19 – US and EU Competition Law Implications (12 May 2020)

The Covington US and EU Competition/Antitrust teams will be updating you regularly, through the Covington Competition blog, on the competition/antitrust law implications – both procedural and substantive – of the COVID-19 crisis in the US and the EU.  This is our update for Wednesday 6 May 2020. Today’s new updates as compared to the previous update are highlighted – these are the headlines:

  • Today’s EU updates:


Continue Reading COVID 19 – US and EU Competition Law Implications (6 May 2020)

The Covington US and EU Competition/Antitrust teams will be updating you regularly, through the Covington Competition blog, on the competition/antitrust law implications – both procedural and substantive – of the COVID-19 crisis in the US and the EU.  This is our update for Thursday 30 April 2020. Today’s new updates as compared to the previous update are highlighted – these are the headlines:

  • Today’s EU updates:
    • The Court has announced that it intends to resume hearings on 25 May 2020.
    • The Commission has cleared a further number of State aid requests by Member States.  Skip to relevant section.


Continue Reading COVID 19 – US and EU Competition Law Implications (30 April 2020)

The Covington US and EU Competition/Antitrust teams will be updating you regularly, through the Covington Competition blog, on the competition/antitrust law implications – both procedural and substantive – of the COVID-19 crisis in the US and the EU.  This is our update for Friday 24 April. Today’s new updates as compared to the previous update are highlighted – these are the headlines:

  • Today’s EU updates:
    • The German government intends to prolong merger procedure time periods, extending phase I investigations to two months and in-depth phase II investigations to six months. The new law will apply to all mergers notified between 1 March 2020 and 31 May 2020. The underlying reason is the significant impact of COVID-19 on the Federal Cartel Office’s daily operations. Due to contact bans and the temporary closure of businesses, merger control investigations may not be concluded within the usual time periods, which might result in a clearance of concentrations which may significantly impede effective competition. The proposed changes aim to allow the authority to further investigate the markets concerned. Skip to relevant section.
    • The Commission has cleared a further number of State aid requests by Member States.  Skip to relevant section.


Continue Reading COVID 19 – US and EU Competition Law Implications (24 April 2020)