We’re looking at a pretty basic question in this issue—Has the definition of a cartel expanded so that a wider variety of antitrust violations are being brought as cartel violations? Our guest editor, Rein Wesseling, introduces the discussion with an indication that the answer may be an uncomfortable “yes.” Our contributors carry the argument forward with four intriguing case studies, three that seem to affirm the answer—and one that may not.
And we follow with a note on a highly significant Canadian Supreme Court decision holding that indirect purchasers are entitled to assert claims for damages and restitution in class actions relying upon alleged competition law offenses—an opinion that every authority wrestling with this issue, or company operating in (or selling to) Canada, needs to take a look at.
The Ballooning Definition of Cartels
Arguably, however, the factors preventing the cartel concept from widening and becoming more blurred are no longer as pre-eminent as the concept has moved away from the U.S. criminal law framework. Rein Wesseling (Stibbe)
Antitrust enforcement agencies by their very own nature do, and indeed need to, push the boundaries of the law where appropriate and necessary. However… Cecil Saehoon Chung, Sung Bom Park, Seung Hyuck Han (Yulchon LLC)
Foreign competition officials do not always understand the difference between a naked cartel and a restraint that is ancillary to an efficiency-enhancing integration. M. Howard Morse (Cooley)
Problems can emerge when competition authorities make broad interpretations of cartel behavior that include activities that are not horizontal and, technically speaking, fall outside the definition of cartels. Omar Guerrero Rodriguez & Alan Ramirez Casazza (Barrera, Siqueiros y Torres Landa, S.C.)
One thing is clear: Judge Buchwald’s decision will be considered by many as a significant part of how those issues should be resolved. Richard S. Taffet & Michael L. Whitlock (Bingham McCutchen)
Followup: Class Actions & Damages
There is now an increased prospect for Canadian courts to certify class actions that may not be permitted to proceed in the United States. Mark Katz & Chantelle Spagnola (Davies Ward)