Antitrust Law Blog

The Ninth Circuit recently affirmed the dismissal of the claims of an antitrust plaintiff on the ground that he lacked the injury-in-fact required for Article III standing.  Gerlinger v. Amazon.com Inc. and Borders Group, Inc., 526 F.3d 1253 (9^th Cir. 2008).  Plaintiff failed to create an issue of fact in response to defendants’ showing on summary judgment that plaintiff had not paid more for books as he claimed in his complaint.

On June 30, the European Commission ("EC") introduced a settlement procedure for cartels which will allow the EC to settle cartel cases through a simplified procedure.  Under this procedure, alleged cartels participant having seen the evidence in the EC's file can "choose to acknowledge their alleged involvement in the cartel and their liability for it".  In return for this acknowledgement, the EC can reduce the fine imposed on the parties by 10%.  The EC's stated aim is to simplify its administrative proceeding stages and reduce litigation before the European Courts in cartel cases which will free up the EC's resources to pursue other cases.  The EC analyzed 51 contributions received during the public consultation launched on October 27, 2007, and revised the package in consultation with the Member States' competition authorities.  The legislative package consists of a Commission Regulation together with a Commission Notice  explaining the new system in detail.  EC Competition Commissioner, Neelie Kroes, commented, "This new settlements procedure will reinforce deterrence by helping the Commission deal more quickly with cartel cases, freeing up resources to open new investigations. Companies which are convinced that the Commission can prove their involvement in a cartel, will also benefit from quicker decisions and a fine reduction.”  Under the new settlement procedure, the EC neither negotiates nor bargains the use of evidence or the appropriate sanction but can reward the parties’ cooperation to attain "procedural economies".  This cooperation is different from the voluntary production of evidence to trigger or advance the EC's investigation which is already covered by the EC's Leniency Notice.  Where both the settlement reduction and the leniency reduction are applicable, they are applied cumulatively.  It will remain to be seen whether the 10% reduction now decided upon by the EC will be sufficient to encourage companies to participate in this settlement procedure particularly where there is a high risk of follow-on private litigation.