The Private Competition Enforcement Review - Edition 10

Ilene Knable Gotts
  • Editor:
  • Ilene Knable Gotts
  • Wachtell, Lipton, Rosen & Katz

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Private competition litigation can be an important complement to public enforcement in the achievement of compliance with the competition laws. For example, antitrust litigation has been a key component of the antitrust regime for decades in the United States. The US litigation system is highly developed – using extensive discovery, pleadings and motions, use of experts, and, in a small number of matters, trials, to resolve the rights of the parties. The process imposes high litigation costs (both in terms of time and money) on all participants, but promises great rewards for prevailing plaintiffs. The usual rule that each party bears its own attorneys’ fees is amended for private antitrust cases such that a prevailing plaintiff is entitled to its fees as well as treble damages. The costs and potential rewards to plaintiffs create an environment in which a large percentage of cases settle on the eve of trial. Arbitration and mediation are still rare, but not unheard of, in antitrust disputes. Congress and the US Supreme Court have attempted to curtail some of the more frivolous litigation and class actions by adopting tougher standards and ensuring that follow-on litigation exposure does not discourage wrongdoers from seeking amnesty. Although these initiatives may, on the margin, decrease the volume of private antitrust litigation in the United States, the environment remains ripe for high levels of litigation activity, particularly involving intellectual property rights and cartels.

Private antitrust litigation is largely a work in progress in many parts of the world. Change occurs slowly in some jurisdictions, but clearly the direction is favourable to the recognition that private antitrust enforcement has a role to play. Many of the issues raised in this book, such as the pass-on defence and the standing of indirect purchasers, remain unresolved by the courts in many countries and our authors have provided their views regarding how these issues are likely to be clarified. Also unresolved in some jurisdictions is the availability of information obtained by the competition authorities during a cartel investigation, both from a leniency recipient and a party convicted of the offence. Other issues, such as privilege, are subject to change both through proposed legislative changes as well as court determinations. The one constant across almost all jurisdictions is the upward trend in cartel enforcement activity, which is likely to be a continuous source for private litigation in the future.

About the Editor

Ilene Knable Gotts is a partner in the New York City law firm of Wachtell, Lipton, Rosen & Katz, where she focuses on antitrust matters. Mrs Gotts is regularly recognised as one of the world’s top antitrust lawyers, including being recognised for over the past decade in The International Who’s Who of Business Lawyers as one of the top 15 global competition lawyers, in the first-tier ranking of Chambers USA, and in the ‘leading individuals’ ranking of PLC Which Lawyer? Yearbook, being named an ‘All Star’ by BTI Consulting Group due to her level of dedication and commitment to exceptional client service, and having been selected as the ‘Antitrust Lawyer of the Year’ for 2016 by the Wall Street Journal’s ‘Best Lawyer’ survey. Mrs Gotts is a member of the American Bar Association’s Board of Governors, having previously served as chair of the ABA’s Section of Antitrust Law as well as a variety of leadership positions in the Section for over two decades, including as the International Officer. From 2006 to 2007, Mrs Gotts was chair of the New York State Bar Association’s Antitrust Section. She is currently a member of the American Law Institute. Mrs Gotts is a frequent guest speaker, has had over 200 articles published on antitrust-related topics, and has been the editor of the ABA’s Merger Review Process handbook editions published over the last 20 years. She is a member of the editorial board of the Antitrust Counselor and Competition Law International publications and the advisory board of BNA’s Antitrust & Trade Regulation Report. Mrs Gotts is a member of Lincoln Center Counsel’s Council.

Acknowledgements

The publisher acknowledges and thanks the following for their learned assistance throughout the preparation of this book:

Editor's Preface

  • Ilene Knable Gotts
  • Wachtell, Lipton, Rosen & Katz

EU Overview

  • Stephen Wisking, Kim Dietzel and Molly Herron
  • Herbert Smith Freehills LLP

Estimating Cartel Damages in the European Union

  • Enrique Andreu, Jorge Padilla, Nadine Watson and Elena Zoido
  • Compass Lexecon

Argentina

  • Miguel del Pino and Santiago del Rio
  • Marval, O'Farrell & Mairal

Australia

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Austria

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Brazil

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Canada

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China

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England and Wales

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France

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Germany

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Romania

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South Africa

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Spain

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Sweden

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Turkey

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  • Erdem & Erdem Law Office

USA

  • Chul Pak and Daniel P Weick
  • Wilson Sonsini Goodrich & Rosati

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