Charlie Rooke: What would you say are the main themes and trends you are seeing globally in the competition antitrust litigation space? I know that in Europe, the trucks cartel claims have been clogging up the courts in Germany and Spain for a number of years. But I'd be interested in your experience on what's keeping the courts busy elsewhere.
David Wingfield: The biggest development in competition law over the past 15 years has been the rise in claims, mainly standalone claims involving technology platforms. I think the extent to which competition law issues in these platforms have been brought forward has inspired more and more claim-side lawyers to find additional types of competition law claims. So in addition to having platform cases, we have other cases that feed off platform cases or otherwise feed off changes to the law that have developed around platform cases or because of those cases.
CR: As your experience is largely in the US and Canadian context, I'd be interested to get your thoughts on those two regimes in particular. I'm just thinking about how much more well established they are and arguably more sophisticated than the English Competition Appeals Tribunal, which is all still relatively embryonic. As you say, they're still trying to grapple with the same issues, but I think there's not the same framework that exists in the US and Canada. What lessons do you think there were to be learned from how these cases are being approached in the US and Canada?
DW: I practice mainly in Canada and the UK and divide my practice equally between both countries. While I am involved with US litigation, but not directly the way I am in Canada and the UK. The biggest difference isn't the sophistication of the court systems. They're all sophisticated and I think the CAT is probably the most sophisticated of all the courts that regularly deal with competition law disputes, because that's all they do. The differences arise in a variety of different contexts. The most important one of those contexts is how damages are dealt with. You have two types of competition cases. You've got follow-on cases and standalone cases. Standalone cases require the claimant to prove the primary antitrust liability and the follow on cases, as the name implies, follow on from an agency finding of misconduct or an admission of misconduct. So we're dealing with the primary antitrust liability.
The substantive laws of the EU and the UK are different from those in the United States, mainly the Sherman Act, and in Canada. They differ because the European and now UK laws have far more flexibility in the types of conduct that can be brought within the ambit of competition law enforcement. That makes a more attractive jurisdiction to commence standalone cases for follow-on damage cases. The differences arise because the US federally, not in terms of state law, but federally limits damage claims. All market participants who have suffered loss or damage from anti-competitive conduct have a right of damages, but the defendants have the right to claim that the direct purchaser has passed on the overcharge to others, thereby reducing or minimizing the liability of the price fix case of a price fixing case.
In Canada it's been different because our law permits price fixing cases to be brought as private claims, but not dominance cases, for instance. And Canadian law like UK law permits indirect purchaser actions, but it also prohibits passing on to be used as a defense the way it is in the United States for direct purchaser claims. So in Canada you have a narrower compass of types of cases that can be brought privately, but a far more flexible damages framework than you have in the UK or the United States. The UK and the EU has a far more flexible primary liability framework, but a very challenging damages methodology that has to be used. The United States has a bit of both. The Sherman Act is often very difficult to apply, and the damage claims under federal law are limited to direct purchasers, which forces procedurally parties to bring cases also under state law in those states which permit indirect purchaser actions.
This video was recorded in June 2023.
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