Companies that suffered damage as a result of a cartel are increasingly aware of their right to claim compensation. The Antitrust Damages Directive, in particular, has created the sense of awareness that cartel damages can be claimed throughout the EU.
The main obstacles for claimants to enforce antitrust claims include:
- The need to prove damages; quantification of harm, including causality aspects, typically requires detailed data and information covering the affected market;
- Dispersed losses as cartel members are often active in multiple jurisdictions and victims have therefore suffered damages across Europe;
- Potential strains on ongoing commercial relationships associated with individual exposure to multiple defendants;
- High costs for lawyers and economic experts, though the outcome of the process is uncertain.
Many of these difficulties can be alleviated by collective approaches. From a structural perspective, collective approaches have significant advantages and increase the chances for an effective enforcement of claims for damages resulting from the infringement of competition law. Collective approaches :
- allow for the collection of data from a multitude of damaged persons and companies, thus enhancing the chances to prove harm caused by the infringement;
- create synergies for the enforcement of claims in court and through out-of-court settlements (e.g., a stronger negotiation position);
- enhance the claimants’ cost-risk ratio through overall economies of scale; and
- result in a significant concentration of court procedures, which is advantageous for claimants, defendants and the courts.
Bundling of claims through a specialised company or entity, often referred to as a claims vehicle, is a particularly effective solution. Bundling is a de facto collective claims enforcement, without being a form of collective redress. The model typically has the following features:
- a number of companies (typically 10-100) damaged by an infringement assign their claims via a claims purchase or assignment agreement to a specialised company (special purpose vehicle, or SPV);
- the SPV enforces the overall claim in its own name, at its own cost and at its own risk in and out of court;
- the SPV enforces the overall claim at its own cost; it arranges for the overall funding of the case, typically through Third Party Funding ; and
- the SPV ensures the collection and analyses of relevant data and documents, which significantly increases the chances of proving individual damages.
This approach results in a full outsourcing of the complex, time and cost-intensive process of both proving cartel damages and enforcing claims. Since under the aggregation or bundling approach the entity acquiring the damages claims is not acting for or on behalf of the original claims’ holders, but in its own name and account, commercial relationships do not suffer as much and can often be preserved.
Some of the largest antitrust damages actions, both in the past and currently pending before national courts in the European Union, in particular the Netherlands, Germany and Austria, have been brought on the basis of the claims aggregation or bundling model.
The Netherlands has traditionally been seen as a particularly attractive jurisdiction for bringing damages claims in competition cases. In recent years, several judgments have been rendered in private cartel damages cases in the Netherlands. These rulings concerned issues such as jurisdiction, claimants’ duty to substantiate their claims, applicable law, and the use of the ‘passing-on defence’.
Dutch courts generally accept the standing of claim vehicles if they find that the assignments and mandates are legally valid. The fact that a claim vehicle is funded by litigation funders and works on a ‘no win, no fee’ basis, which is not allowed for Dutch lawyers, does not make the assignment agreement null and void.
The enforcement of damages claims resulting from competition law infringements by way of collective actions or claims aggregation is closely linked to the question of litigation funding. In general, any representative entity, lead plaintiff or claims aggregator operating in the field of competition law damages claims must be in a position to cope with the high costs and cost risks of complex litigation.
In practice, this results in a situation where collective actions as well as actions enforcing aggregated antitrust claims are often funded in cooperation with third-party litigation funders. For third-party litigation funders, the funding of such cases is attractive for several reasons:
- they typically arise in a ‘follow-on’ situation where an infringement has been established by a competition authority;
- the bundling of claims combined with an optimisation of the economic analysis does not only increase chances to successfully enforce claims, but also achieves the critical mass required to merit funding, as litigation funders typically require a minimum claims value of several million euros;
- specialised claims aggregators with a proven track record will be able to obtain more advantageous funding terms, which is beneficial for all companies that entrust their claims to the entity;
- collective claims and claims aggregation allow for access to justice in relation to damages claims that otherwise would be foregone.