: SNITCH.scansPRECLUSION:RJ/RJ.DEFENCESclass.FOCSoecd.focs  DERIV.FOCS  FOC GROUNDS:  PI/GREY/CL    

FOC GROUNDS AND WHERE TO FOC

 FOCS.types   (by type of claimant)

[ex COCOO COAS [CASH REQUESTS TO CROWDJUSTICE]: (TO ISSUE OR DEFEND)]

1-CLASS FOCS*: THE CLASS GRANTS STANDI ON COCOO…..must identify victims [OTHER THAN THE RJ PARTIES], AND COCOO CAN USE THE SAME RJCOA [no need to prove it again].

CAT to soon approve ‘opt-out‘ class actions….The requirement of commonality (of issues between all of the claims) is a major stumbling block in [CPO=CLASS ACTION] applications A lack of such commonality was why CAT rejected the CPO applications in Gibson v. Pride and in Merricks v. Mastercard…..Is the loss suffered a ‘common issue’? if so, the CPO applicant must be able to give a fair approximation of the total loss. this could require economic experts to propose a methodology for calculating loss, and this becomes more complex where an overcharge has been ‘passed on’ to the claimants….eg. if the alleged losses are too diverse (and, perhaps also not on the same exact facts as the  underlying foc’d Decision) , the CAT will hold insufficient commonality (of issues between each of the individual claims) and will refuse a collective claim

2- foc =[final = binding=no longer appealable] decision of the CMA.ec, or a sectoral regulator (eg ofcom), or of the CAT.ecj on appeal from a decision of the CMA.ec, can be used by other victims , to foc in the CAT.ecj or in the ordinary courts, as these courts are bound by the decision….victims need to prove only that the breach caused him to suffer loss, and the loss quantum. no need to prove the infringment….thus, is not possible to originate new allegations of infringement….however, if the CMA.ec decision does not relate to exactly the same facts, it will not have the same binding effect, but may be relevant – for example if it concerns the same market but different parties – and it may still be admitted as evidence.

3- TO INTERVENE [LOW STANDI NEEDED, to raise concerns/arguments, that are wider or different to the ones raised by the parties. cocoo’s concerns/arguments can be based on either:

• • constitutional or treaty violation
  • violation of human rights act
  • wpiua

4- PRIVATE position paper/ADVISE [COCOO NEEDS NO STANDI]. seek victims (parties or non parties)

5- Dispute resolution: [ without going to court] : mediation, adjudication, arbitration, Private settlements. often result in the best outcome for both parties and reduce both parties’ costs…..most antitrust cases settle after discovery is complete or nearly complete, so the parties had a good idea about the strength or weakness of their case

FOC TYPES (by coa)

cocoo will identify (amongst cmas…historical.DOCAS),patterns of internal consistencies with ongoing cases(=best tech2identify.pot.cocons) committed by todays plcs.docas,  that show same behaviour and same situation (or very similar) >> cocoo foc v plcs+cma…

eg. in a subsequent foc before a national court, a claimant can rely on ec’s infringement decision in relation to the same behaviour

A/-FOC on same coa, between same parties, is only allowed in the DOCTRINE OF COA ESTOPPEL:    Zurich v Hayward : the RJ judgment was obtained fraudulently…..no time limit if the fraud included CONCEALMENT…  <> Gelmato …FOC to set aside the judgment and also to seek liability against (Directors, lawyers, witnesses, auditors, accountants etc) on grounds like assisting crime/fraud; co-conspiracy; complicity; liability for contempt of court (knowingly giving dishonest evidence/statements to the court eg intentionally destroying evidence (eg from mobile phone))

B/– FOC between totally different parties….eg:-identify co that can FOC ftc/cta…maybe they did not know it (due to concealment? if so, no time limit)

C/-FOC by cocoo as a stranger….COCOO as a STRANGER (on the same or on a different coa) v a RJ party, on BOTH the binding (RJ) and non-binding PLFs…FOC on the binding PLFs need no evidence of anticompetition: I only need to prove that the behaviour caused loss to the public purse, or to someone else, and the quantum……Alternatively, I CAN set up ltd co with the sole purpose (spv) to limit liability if losing….[padi’s trustees are personally liable]….Casehub Ltd v. Wolf Cola Ltd are claims assigned to a third party were permitted to proceed . The Casehub judgment is particularly interesting, in that their business model was described by the court as ‘a company which builds consumer group actions online’ – appears similar to the practice seen in other jurisdictions of SPVs ‘bundling’ assigned damages claims.

exs of cocoo focs as a stranger:

c.1/  cocoo will find rj decisions on crime/fraud:   eg tax evasion, money laundering, etc…[[why? : LPP does not cover communications that enable crime or fraud, even if the lawyer was not aware of the wrongdoing]].cocoo foc, after seeking :

-FOIA s.3:  foia applies to [professionals who work for] public bodies, or for uk publicly owned companies, or under tendered contract

-SRA Publication Scheme;  Accountants reg.body publication scheme, etc… i can ask for disclosure of communications by private professionals

c.2/ cocoo’s JR : (3m TL) v RJ decisions of FTC/CTA/CMA (decision flaws?; hard to comply court orders? )

c.3/ cocoo FOC v (anchor defendants = subsidiaries of a company held (RJ) anticompetitive via restructuring)…..skanska judgment: if a company tries to avoid its obligations through restructuring, the subsidiaries or group of companies can be anchor defendants (as privies to the parent, in other jurisdictions)

c.4/ cocoo FOC v a settlement decision ( by CMA/CTA/etc ) . Settlement has flaws?; the content of the settlement helps me identify whether which other company has right to FOC?

c.5/ cocoo FOC v the concealing company (that litigated v the Gelmatos in the RJ)….OR, advise Gelmatos (cos that do not fully know they still* have a FOC because of concealment – of the fact they can FOC-) …..COCOO looks into RJ JUDGMENTS (BY EC/CFI(GC)/ECJ…..CAT/CMA) : published judgements;  or still unpublished judgments (if still unpublished, this helped the now defendants conceal the Gelmato’s possiblity of FOC)….FOC HAS NO TL…BECAUSE THE LIMITATION CLOCK HAS NOT STARTED TICKING THANKS TO CONCEALMENT: section 2 of the Limitation Act: tort claims are time-barred six years from the date of coa….EXCEPTION: where there is “deliberate concealment” of facts relevant to the coa, the limitation clock only starts to tick from the time a claimant discovered, or could with reasonable diligence have discovered, the relevant facts

there is no empirical evidence that damage awards, even in combination with public fines, has ever yet reached a level where they would be considered an optimal deterrent.….we need to ask for more!… Without multipliers [when damage awards are limited to actual losses], firms would feel an incentive to engage in unlawful conduct so long as they can expect that they will not always get caught….private action + public action [cma.ec], should jointly contribute to an adequate multiplier>>Thus, the fact that public fines already have been imposed on defendants cannot eliminate the need for private actions for damages, to ensure optimal levels of deterrence.

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Confidential communications between a client and his legal adviser are not privileged if made for the purpose of committing a fraud or crime. For these purposes, it is irrelevant whether the fraud is that of the client, the adviser or a third party acting through an innocent client. A good NDA restricts the use of the ideas and information to a specific permitted purpose. This could be the evaluation of your idea or the discussion of a joint venture. Specify that purpose in the NDA as precisely as you can. You can always widen the permitted purpose later. You won’t be able to narrow the restriction on the use of your ideas or information later

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DERIVATIVE.foc….I NEED TO ESTABLISH DIRECT DIALOGUE WITH SHs

cocoos goal is ADR or private settlement (eg for the Gelmatos, or for PADI) + my legal fees + PADI Donation + Restitution for the costs padi incurred in the report etc.]….Pre-CPO certification settlement requires CAT’s approval.  Thus, is best to settle at ‘case management conference’ stage, once the relative strengths of legal arguments on both sides have been assessed. Competition economists should be engaged as soon as possible (to do such assessment asap)

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SETTLEMENT OFFER OR EXTORTION

LITIGATION STRATS.clp

1-DELAYS:

All around the world competition lawyers prevent cl functioning as it should do.

lawyers have a duty to act in the best interest of their clients…. BUT…….the enforcement of cl, is not business-to-business litigation between firms asserting private law rights and obligations. Competition law enforcement is about achieving the ‘right’ result in a particular case in terms of welfare as a public interest.

lawyers urge on competition enforcers and adjudicators the requirement for administrative fairness only as an opportunity to seize strategic advantage in litigation.

Ansac, the American Natural Soda Ash Corporation, which the Competition Commission referred to the Tribunal in 1999’: ‘Ansac’s legal team managed to drag an incontrovertible cartel case through every court in the land for ten years, whereupon Ansac conceded precisely what it had been accused of in the first place’.

The costs of lawyers, although high, is negligible in comparison with the benefits a company gets from dragging along a competition case. In some competition law cases, the economic stakes are incredibly high. A large company will be willing to pay huge sums of money, for example to lawyers, economists, public relations agencies and lobbyists, to protect a practice or to promote a merger that is privately profitable. In such circumstances, it is inevitably difficult for a lawyer to consider the wider public interest purpose of competition law.

A separate point is that there appears to be something in the nature of lawyers that suggests that winning an argument is more important than reaching the right result in the broader good. I recall the occasion on which the UK CAT ruled, in Bettercare (2002), that the North & West Belfast Health Trust was an undertaking, and therefore subject to the Competition Act 1998; the cma had earlier decided that it was not. There were lawyers at the cma who wanted to appeal….. It was not easy to persuade them that the CAT judgment was actually helpful to the cma, in that it expanded the jurisdictional reach of the legislation.

competition authorities worldwide receive endless complaints about their procedures; these of course require careful attention because of the fear of judicial review. In the UK, recently I heard a reference to ‘Friday’ letters: letters sent by practitioners on a Friday afternoon to the CMA raising a procedural complaint, which will hamstring the authority when work recommences on Monday.

Surely such delay tactics, like JR applications, would never be made if the CMA imposed interim measures (eg capping the price of the drug in question) pending the outcome of its investigation.  The incentive, then, would be for the case to be completed as quickly as possible. The use of interim measures is even more justified where it is not possible for a complainant to start a standalone action in court, but rather is entirely dependent for a remedy on the competition authority.

One obvious way of delaying enforcement action is to raise constitutional objections, or to argue that the competition authority lacks jurisdiction because a particular sector is within the jurisdiction of a bespoke regulator.

most claims are foc = ‘follow-on’: the final court has already adopted a decision establishing that there was a cartel, and the claimant is entitled to rely on this as proof of the infringement. However, a defendant can seek to delay the litigation in numerous ways, like arguing that the court lacks jurisdiction.

There was criticism, especially from Ofcom, that companies had become adept at using appeals to the CAT, to postpone much needed regulatory decisions (e.g. those aimed at promoting the roll-out of 4G mobile telecoms technology) with consequential damage to the UK economy. Consequently, the 2016 Digital Economy Act included:  that future appeals against Ofcom’s decisions will be determined ‘by the same principles applied on an application for judicial review‘ – that way, if the application is granted, there will no longer be a rehearing of the merits of the decision.

CAT’s response: anti-trust cases take longer (many years)  than other civil litigation;  CAT appeals last an average time of just 8 months. In particular merger cases are dealt with very speedily. For example: the contested merger of HBOS and Lloyds Bank – took only 10 days (from receipt of the appeal in the CAT’s Registry to judgment). CAT appeals are the fastest in the EU.   But this doesn’t alter the fact that appeals take a very long time, and ‘justice delayed is justice denied’.  the CAT argues that it is the regulators who usually ask for a lot more time to put in further evidence, for they hate the thought that they might be overruled.  both side’s lawyers get paid much more for lengthy preparation and long trials.  competition lawyers helping their clients ‘play the system’, including using excessive delaying tactics….. otherwise, why a decision that has been already hard fought between company and regulator should not get a rapid review by the CAT?

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2-HUMAN RIGHTS:

multinational corporations, with access to the finest and most expensive competition lawyers in the world, have invoked their ‘human rights’ (ECHR) when, for example, asked by a competition authority to answer a question that might be self-incriminating.

In Volkswagen v Commission (2002): human rights that have evolved to protect individuals from an overweening state, must be different from the rights of undertakings subject to competition law. “To accord such offenders the same procedural safeguards as those accorded to the most needy individuals, apart from being a mockery, would entail, essentially, a lower degree of protection, in this case economic protection, for the individual as the main victim of anticompetitive conduct’.

SA-Capital Oy v Finland (2019), :  recognised the need for a distinction to be made as to the protection to be afforded to natural persons in an obvious criminal case, and the protection afforded to undertakings under investigation by a competition authority.

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3-APPEALS

in the EU, the rule that an appellant cannot claim the benefit of a point he has not raised in its appeal – ‘ne ultra petita’ – encourages too many, even pointless, points of appeal

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4-3PINT (ex interveners)

3ps usually challenge mergers for their own private gain, rather than as guardians of competitive markets. courts must deal with these interveners as a result of competition lawyers threatening to appeal if their intervener’s rights are not observed. examples:

-the challenge by IMPALA against the clearance in 2004 of Sony/Bertlelsman: it took four years for the ECJ to decide that the clearance was legitimate

-KPN successfully challenged the EC’s conditional clearance of Liberty Global/Ziggo , after 4 years

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= rule 58 of the CATRules 2015

The FTP was introduced as part of the new regime for private actions under the Consumer Rights Act 2015. the FTP is designed to enable the CAT to deal with less complex cases more quickly and cheaply, increasing the ability of small and medium sized enterprises (“SMEs”) to challenge behaviour that is restricting their ability to grow

The Consumer Rights Act 2015 expanded the powers of the (‘CAT’). The Tribunal can now even do ftp. the CAT’s (FTP):

Parties seeking an FTP must apply to the CAT under rule 58 of the CAT Rules 2015. If it is approved, the recoverable costs are capped and the hearing must take place within six months of approval. Claims or part of claims are deemed suitable for the inclusion in the fast-track when one or more parties are SMEs and the estimated time for the hearing is 3 days or less.  the ftp also allows the award of an interim injunction and remedies.   damages claims requiring a complex assessments of losses are not suitable for ftp

To allow the claim to move forward in the fast-track the CAT only dealt with the question of ADP liability…. the CAT decided the injunctive claim first, to provide the parties with a starting point for their damages negotiations

Only one ftp decision so far does not look like a great success for the FTP but one must bear in mind that litigated cases are only the tip of the iceberg. Lowering the costs for potential injunctions claims via FTP , adds certainty for litigants as to the expected costs of a dispute.  This increases the potential threat from litigation, thus encouraging parties to settle

damages alone, rather than for an injunction, can be sought via CAT FTP. Cost cap orders can be sought.

FTP allowed only if the case can be dealt with at a trial of three days or less (not complex), claimants are SMEs.

 

CAT FTP CASE: Socrates Training v The Law Society

https://www.catribunal.org.uk/judgments/12495716-socrates-training-limited-v-law-society-england-and-wales-judgment-liability

The CAT set a costs cap in the FTP for the first time in the Socrates proceedings. Mr Justice Roth capped the legal expenses that the Claimant and Defendant could recover at £200,000 and £350,000 respectively.

The Defendant’s budgeted costs of £640,000 were deemed to be disproportionate in the circumstances of the case. In particular, the CAT considered the trial estimate, the “unreasonable” amount of work conducted to date and the time estimates for working on witness statements and expert reports. In setting the cap of £350,000 for the Defendant, the CAT also considered the fact that the Claimant was willing to spend £200,000 on its own costs, the importance of the issues for the Defendant and the need to strike a fair balance between enabling access to justice and providing a measure of protection for the Defendant.

Mr Justice Roth emphasised that the caps only applied to recoverable costs; they did not set a maximum spend for each party. Further, the caps did not mean that one side “will, in fact, recover that sum” because costs will be considered, as usual, only after a winner is established in the trial.

The Conveyancing Quality Scheme (“CQS”) is a scheme operated by the Law Society which provides a form of accreditation for firms of solicitors engaged in residential conveyancing. For several years, the CQS has incorporated an element of mandatory training, including training in mortgage fraud and anti-money laundering (“AML”). Socrates is a provider of training courses, including training in AML for lawyers. By its claim, Socrates contended that the requirement under the terms of the CQS that members of the scheme must obtain certain training courses exclusively from the Law Society is an adp contrary to the Chapter II prohibition in the CA 98 and/or an anti-competitive agreement contrary to the Chapter I prohibition in the CA 98.

For the reasons given in the Judgment, the Tribunal held that the Law Society has breached the Chapter I and Chapter II prohibitions from the end of April 2015 but not before.

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  PRIMA FACIE (STRIKE OUT)

A prima facie case is a cause of action or defense with enough evidence (of fact) to win, (provided is not rebutted by the other party), it allows for summary judgment. If the plaintiff establishes a prima facie case, the burden of proof shifts to the defendant.

A trial or judgment is said to be prima facie eligible when the pre-trial evidence has been determined (by the judge) to warrant the trial.

For example, a case with evidence that the buildings got fire by sparks from a train, it is prima facie evidence of negligence on the part of the train company.

Prima facie can happen in contract and in tort:

-A prima facie contract is an agreement that is sufficient to raise a presumption or establish a fact, unless rebutted

-Prima facie in tort law aims to provide relief for malicious intent, but which was not unlawful. Alternatively, for negligence.  In either case, the plaintiff must prove: duty, breach, damages, and causation:

1. 1. The defendant had a duty (civil obligation) to not harm them,
   2. That the plaintiff breached that duty by harming them with malicious intention.
   3. There were damages.
   4. The defendant’s breach caused those damages.

eg. consider a prima facie tort case where a landlord wants to get rid of a dental practice in his building…so he decides to harm the dentist reputation and his patients stop coming. The dentist goes out of business and leaves the office space. In this example, all the components of a prima facie case can be established (malice and damages seem obvious).

eg. an employee injures her foot but her job requires her to stand for the whole day. She asks her boss for a chair, but there are no chairs. Here, the boss doesn’t have a desire to hurt (malice) , so a claim for prima facie tort would likely be dismissed

Prima Facie in Criminal Law:

eg. in a case of burglary, the prosecution must present evidence that the defendant entered the premises without authorization and with the intention of committing burglary, and that the defendant stole items. In a prima facie case,the prosecution must prove each element beyond a reasonable doubt

Prima Facie and Employment Discrimination:

Title VII of the Civil Rights Act prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion. To establish a prima facie case of employment discrimination a plaintiff must prove: 1) They were a member of a protected class; 2) They suffered an adverse employment action; 3) They met their employer’s legitimate expectations, and 4) They were treated differently from similarly situated employees outside their protected class.

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(CONTEMPT OF COURT)

is very difficult to bring successful contempt proceedings (eg v solicitor, accountant, witnesss, etc) arising out of evidence/statement given at trial.  It is much easier to put a previous judge’s findings of fact before a subsequent court and asking for contempt findings on that basis.

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[contempt of court = interfering with the administration of justice,]

for giving dishonest evidence to the court,  or knowingly making a false statement in a court document. eg intentionally interfering with the administration of justice by intentionally causing the destruction of documentary material stored on an electronic device.

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Coc4dishonest.evidence

Frain v Reeves [2023] EWHC 73 (Ch) demonstrates some of the dangers of trying to rely on shortcuts in committal proceedings against lawyers, the challenge of having to prove dishonesty and the impact of the public interest filter.

The case had its origins in a dispute between family members over a 2014 will.  The contempt application was made against both the purported beneficiary under that will (“Louise”) and her solicitor in regard to the case put forward at trial. The solicitor respondent had prepared the 2014 will and he gave evidence supporting Louise’s case at trial. The court found that Louise could not prove on the balance of probabilities that the deceased knew and approved the contents of the 2014 will. The judge did not make direct findings of fraud or collusion against Louise and the solicitor, though he did not accept their evidence and referred to a “strong implication of fraud” by Louise.

In the contempt proceedings, the applicants alleged that the solicitor had knowingly or recklessly made false statements in his evidence.  The solicitor opposed the application for permission to bring the proceedings against him. He succeeded on three core grounds:

First, the application relied on inferences that the solicitor was dishonest. The court held that where it was apparent at the permission stage that more than one inference could reasonably be drawn, the applicant could not establish a strong prima facie case to the criminal standard at trial, and permission should not be granted;

Second, the judge held that the judgment in the underlying proceedings was not admissible against the solicitor because he was a witness rather than a party in those proceedings. As he had been unrepresented at trial, he had not been able to shape the issues, make submissions about his truthfulness or, cross examine anyone else;

Third, the court found that it is not in the public interest for every case in which it appears that a statement of truth may not have been true to result in an application to commit  

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:   OBTAINING DISCLOSURE <> lseg

public Final decisions of CmAs closing investigations declaring that a plc infringed clp >>> victims request discl. >>> FOC (cat)
….However, the publication may be delayed, and the published version may be severely censured to protect confidential information

discl., from the claimants’ perspective, implies further cost and delays for their claims to proceed in court. From the defendants’ perspective, it also entails additional costs, but the typical asymmetry of power and resources of the parties in these proceedings makes them better prepared to handle it, benefiting from economies of scale, and gaining more from dragging out procedures. The mechanics of the ‘disclosure scheme’ can easily be steered by defendants as a ‘sword’ or as a ‘shield’ against unpracticed claimants…..strategic behavior in court, mainly by defendants, to quash and delay any potential damages claims through all possible means (including delaying/opposing discl). ex: If the defendant is allowed access, without sufficient limitations, to sources of evidence in the possession of the injured party, there is a risk that the asymmetries and imbalances that have occurred in the market as a result of the infringer’s actions may be transferred to the judicial proceedings, causing these proceedings to end up being particularly complex, lasting longer than is reasonable or subjecting the injured party to a series of procedural obligations that make it very difficult to effectively protect his rights 

Three poss ways to obtain discl.of cocon EVIDENCE

The Directive’s ‘disclosure scheme’ does not prevent claimants from seeking to obtain the necessary evidence by other means provided by the law. Independently from the adversarial process, concerning evidence that may be in possession of public institutions, several rules recognize the right to access to such information. Given that CmAs may collect and record evidence on potential antitrust infringements, direct requests to them without court involvement may constitute a way for claimants to obtain evidence…. CmAs have a duty to respect professional secrecy of the information they obtained in their investigations. This applies both to the European Commission187 and to NCAs.188 Of course, the professional duty of confidentiality of the CmAs does not mean that they should not give access in those circumstances set by the law:

1. Transparency and the Right to Public Access to Information

The principle of transparency governs the actions of public institutions both at EU and national level. however, However, the right to access is not absolute and there are exceptions. Among those are the protection of commercial interest of natural and legal persons, court proceedings and legal advice as well as protecting the purposes of inspections, investigations and audits (Article 4.2 of Regulation 1049/2001), and the institution’s decision-making process (Article 4.3 of Regulation 1049/2001). Still, these exceptions can be overridden if there is public interest in disclosure.EU Courts have considered that applications for disclosure by victims of antitrust infringements to obtain information needed to seek compensation for the harm suffered do not carry an overriding public interest…..However, EC would need to explain how access would undermine, actually and specifically, the interests protected by Articles 4.2 and 4.3 of Regulation 1049/2021

2. Access to the File of the CAs in Public Enforcement Proceedings

The right to consult the file in an antitrust investigation, based on due process and the rights of defense, must be distinguished from the right of access to public information. EC: the r.access to public info cannot have a larger scope or extent, than the right of the parties in an antitrust investigation to consult the file. In addition, evidence obtained in exercise of the right to public information enters the public domain, while access to the CA file in public enforcement proceedings will generally be limited and occur only in certain conditions.

It is possible for potential damages claimants to be parties in the investigations before CAs (or in the appeals of their decisions) if they show a legitimate interest. This could provide them with the right to consult the investigation file. However, rules governing public enforcement proceedings (and judicial review) will normally limit the potential uses of the information accessed to its use in public enforcement proceedings or in judicial review, without being able to use it for a private claim in court. In practice, this entails that, although parties in the investigations before the ec may look at the documents in the file and acquire knowledge of facts that could be relevant for a potential claim for damages, they may not be able to transfer such evidence in the foregoing civil action in court.However, national courts can always request the Ec.cmas for info in their possession regarding the identification of antitrust infringements, if they deem access to such materials is necessary to assess the parties’ pleas. They will decide under what conditions they may release to the parties all or some of the information received from the cmas

3. the discl.scheme

The Damages Directive introduces a ‘disclosure scheme’, empowering courts to adopt disclosure orders upon request by claimants or defendants. This form of evidence production. the ‘disclosure scheme’ is available both for stand-alone and follow-on claims, and for claims regarding harm caused by cartels or by any other antitrust infringements. Although the Damages Directive is geared towards follow-on claims and harm caused by cartels, that does not mean that claims for harm caused by unlawful vertical restraints or abuse of dominance, and stand-alone claimants – which may have more need to access to evidence – cannot avail themselves of it. Indeed, the discl.scheme is a powerful tool to find evidence beyond public enforcement files

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DISCL.SCHEME.PPLES

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1/ The necessity pple

the claimant (disclosure requester) needs to show some merit, by the need to connect the discl.request.to indicia of a pot.cocon. this pple is easier to satisfy (by a foc claimant, than by a sac clamaint)

2/ The proport.pple

guides the amount of evidence to be disclosed and the forms of access. It sets the scope of the disclosure order, considering the costs of disclosure, and the legitimate interests of all parties and third parties concerned. The disclosure order should not go beyond what is necessary to protect the interests of the persons concerned. However, ‘the interest of undertakings to avoid damages actions following an infringement of the competition rules does not constitute an interest that warrants protection’. This implies that the defendant will be forced to share information that runs against its interests. Likewise, the claimant will have to disclose – if requested – evidence about the potential passing-on, that will diminish the amount of its claim. This is an explicit rejection of the principle of ‘nemo contra se edere tenetur’. To meet the requirements of the principles of necessity and proportionality, motions for disclosure must be based ‘on a reasoned justification containing reasonably available facts and evidence sufficient to support the plausibility of its claims for damages’. They must identify the items of evidence or relevant ‘categories of evidence’ to be disclosed as precisely and narrowly as possible. The petitioner should identify the evidential items requested and the inferences that the applicant expects to extract from them. Therefore, unsupported, or unspecified requests for information will not be admitted.

Penalties:
The Directive introduces a regime of penalties to ensure the effectiveness of the ‘disclosurescheme’. National courts should be empowered to impose dissuasive and proportionate penalties on anyone who fails to comply with a disclosure order; who destroys relevant evidence; who fails to comply with the obligations imposed by the national court to protect confidential information; or who breaches the limits for the use of evidence.49In order to avoid ‘strategic refusals’ to disclose by either party (e.g., if the requested party preferred to pay a fine to preclude access to relevant evidence), Member States were instructed by the Directive to include the possibility of drawing adverse inferences from the behavior of a party to the damages proceedings (omnia praesumuntur contra spoliatorem): ‘such as presuming the relevant issue to be proven or dismissing claims and defenses in whole or in part, and the possibility to order the payment of costs’.

Access to cma files:
Given their expertise and advantages in the enforcement of antitrust rules, CmAs collect and gather a great amount of evidence of antitrust infringements. For that reason, potential victims of infringements tend to have an interest in filing disclosure motions in court for the CmA to give access to relevant items of evidence, or motions for the defendants to give access to such items included in a CmA file. This will occur mainly in follow-on or hybrid claims, but also in stand-alone claims, as the files of CmAs may contain evidence of businesses and market behavior that did not lead, or was unconnected to, a declaration of infringement (e.g., merger filings and merger proceedings, state aid cases)

the dams.dir rules on access to evidence included in the file of a CmA in Articles 6 and 7 are aimed at exhaustive harmonization. As an extension and additional safeguard of the well-known principle of consistency in the enforcement of Articles 101 and 102 TFEU, the dam.Dir pursues a ‘common approach across the Union on the disclosure of evidence that is included in the file of a cma.

As information regarding the infringement will already be present in the decision of the CA, the applicant should explain what items of the file are requested and for what purpose. The evidencesought needs to be ‘relevant’ for some probative purpose that the applicant should identify in its request (i.e., how it supports, contradicts or weakens the contentions of fact in question).Secondly, the request cannot be too broad or disproportionate. The specific items of evidence sought should be identified as much as possible. It would not be proportionate to request access to the whole file or to make a general request of unspecified items of evidence (ex. all the documents submitted by the defendant in the investigation proceedings)

3/- Subsidiarity pple

Disclosure orders should only be addressed to CMAs if the requested evidence cannot be obtained from other sources. Requests concerning evidence included in a CMA file, must reasonably justify their necessity and proportionality (Article 6.4.a). As evidence in the file of the CMAs has been mainly provided by the parties in their investigations, or the parties have had access to them in the exercise of their rights of defense, they can be obtained directly from them, without imposing a burden on CmAs..however, if the request is found to be necessary and proportional, an outright rejection of access to the file in those circumstances would unreasonably delay the victim’s right to compensation, making it less effective

4/- court o.2. BA (to decide to order cma files discl, or not)

a/ the cma recomms/opinion (ex that their files should not be disclosed)
b/ the pple. effectiveness of clp public enforcement

The court should allow discl, unless:

1. could have a negative fut. impact on the way in which undertakings cooperate with the CmAs
2. interfere with ongoing cma infring. investigs

5/. the admisibility pple

the Directive deems inadmissible the evidence included in the ‘black list’ and ‘gray list’ (in dams procs before national courts) :

The Directive classifies the evidence in a CmA file in three categories, with different rules for disclosure of each of them. Access is precluded to evidence in which undertakings voluntarily acknowledge the participation in the infringement (a ‘black list’, which will never be disclosed) and is delayed for other information prepared or presented for the investigation proceedings of the CmA (a ‘gray list’, which will be disclosed only after the proceedings are closed). In addition, disclosure should never be granted to internal CmA documents or correspondence among CmAs

A ‘black list’: absolute protectionLeniency statements and settlement submissions are included in a ‘black list’ of evidence to which access is absolutely forbidden. This blanket prohibition of disclosure contradicts the earlier Court of Justice of the EU (CJEU) case law on this matter, which left the courts the power to order disclosure of those documents after weighing the relevant interests involved, on the basis of a case-by-case assessment. Before the Directive was adopted, access to the leniency statements and settlement had been possible in some Member States when the courts had broad powers to order disclosure of evidence without exception in the domestic rules of civil procedure. The question arises whether the Directive’s absolute ban is valid under EU law. If the CJEU interpreted EU primary law as precluding absolute bans, can EU secondary law impose an absolute ban without contradicting primary law and being invalid? What if, say, a CMA decision defines the precise scope of the infringement by referring to a leniency statement? Wouldn’t the absolute ban deprive injured parties of the right to understand what the infringement was and whether they had a right to damages?The blanket/absolute prohibition of disclosure does not cover pre-existing information, which existed irrespective of the investigation proceedings before the competition authority. In my opinion, the relevance of access to leniency statements and settlement submissions in the context of damages claims should not be overestimated, as it is unlikely that those statements or submissions include information on the effects of the infringement (i.e., any potential harm) or its causality.

They generally will include little information valuable in constructing the damages claim.Part of such overestimating comes from the Directive itself (e.g., Recital 26 [<>EN.uk….recitals and ENs contain the scope and goal of the 2leg] refers to ‘self-incrimination’ but, unless the statement by the applicant referred also to the effects of the infringing conduct, it is unlikely that it could add any additional value for the damages claim). The discussion could be different if a CA decision were to define the scope of the infringement itself by referring to black listed documents.To be sure that the ‘black list’ does not extend further than to the items mentioned, restricting access to evidence that may be needed by the claimant to prepare his action, upon his reasoned request, the national court is empowered to scrutinize the requested evidence in camera, to assess whether the items are indeed ‘leniency statements’ or ‘settlement submissions’. If the court deems this is not the case, it may order their disclosure at any time (Article 6.9), or (if they are gray-listed documents) after the CmA has closed its proceedings (Article 6.5).

A ‘gray list’: temporary protectionThe Directive introduces a ‘gray list’ of items of evidence that may only be disclosed after the CmA has closed its proceedings. It includes information prepared by parties specifically for the proceedings before the CmA, information drawn up by the CmA and sent to the parties during its proceedings (ex: the (SOO) Statement of Objections/SO, the Letter of Facts), and withdrawn settlement submissions. Arguably, it also includes proposals concerning the closing of the investigation through a commitment decision following Article 9 of Regulation 1/2003. The disparity on the classification of ‘settlement submissions’ and ‘settlement submissions that have been withdrawn’ for purposes of disclosure (the first in the ‘black list’ and the second in the ‘gray list’) posed a challenge to ec. It risked discouraging undertakings from offering settlements (for fear that claimants would have access to withdrawn submissions). ec has addressed this in a subsequent soft-law document (an amendment to the ec Notice on the conduct of settlement procedures), attempting to ensure that, in practice, all settlement offers are absolutely protected, but this arguably deprives the ‘gray list’ provision of its effet utileAccess to some of this information may be relevant for potential claimants. For example, information contained in the SO and addressee’s replies to the SO could contain valuable evidence regarding the infringement and its effects (harm), and the participation of different infringers

A ‘white list’: non-specific protection: Evidence in a CmA file that does not fall within the two previous categories falls within a ‘white list’, which can be disclosed at any time. It includes any pre-existing evidence (e.g., contracts, minutes of meetings, correspondence, electronic messages, and recordings connected to the anticompetitive conduct) which ‘exists independently of the proceedings of a competition authority’. Courts may still refuse to grant access if ‘the interest of effective public enforcement of competition law’ so requires (Recital 22). In my opinion, this possibility should be interpreted restrictively. It should be used only if disclosure will seriously undermine the CMA strategy or the integrity of its investigation and if the CMA has provided a sound and plausible justification for non-disclosure (e.g., if too early in the investigation the evidence is disclosed, and this undermining ongoing enquiries by the CMA, including unannounced inspections and unraveling of the infringements committed)

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