Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Saturday, April 13, 2013

Claims for Damages in Competition Law and Intellectual Property - Course

Posted by D. Daniel Sokol

Claims for Damages in Competition Law and Intellectual Property - Course

A 10 hour CPD course taught over 4 weeks 
Taught by Vincent Smith (Sheppard and Smith) and Peter Davis (CompassLexecon)
May / June 2013

on Wednesday 15 & 22 May & Monday 3 & 10 June 2013  
from 5 - 7.30pm each week

Download the course brochure

Course Background: 

The course will examine the legal framework for claims for damages in EU and UK competition law as well as in intellectual property law and the economic principles for the evaluation of damages in these contexts. The topic is of particular importance in view of the increasing numbers of competition law claims for damages in the UK, the harmonization initiatives at the EU level, the recent reforms envisaged in UK competition law promoting private enforcement and the importance of damages claims for infringement of IP rights, in view of the issues raised by other forms of protection of IP rights, such as injunctions. It will present a succinct but well focused analysis of the main practical issues involved, such as, the nature and objective of private competition law enforcement, issues of standing and passing-on, causation, characterization of damages, legal issues on the quantification of harm, the binding effect of infringement decisions, collective claims (class actions), access to evidence in a damages case, the interaction between private actions and the leniency programme, including the issue of the discovery of corporate statements. The course will then delve into the economic principles relating to the quantification of damages. We will examine the following issues: cartel overcharges, output effects and deadweight losses, damages to producers of complements, imperfect substitutes and umbrella effects, passing on defences, an introduction to empirical analysis in cartel and abuse of dominance cases (including methods for estimating but-for prices, damages with two part tariffs, damages to rival firms versus consumers), evaluation of damages in IP cases.

At the end of this course the participants will be able to:

  • understand the legal framework for damages cases in the competition law mainly but also IP law context; 
  • understand the economic principles for the evaluation of damages in competition and IP law cases; 
  • assess the application of these principles in practice, by looking to case studies.  


Summary of the course content:

Wednesday 15 May - Anatomy of a competition case

  • As a claim 
    • damages for breach of duty
    • injunction to prevent ongoing breach
      • Negative / Prohibition
      • Positive (supply obligations)
  • As a defence
    • ‘euro-defence’ to contract claims
  • How to spot a competition case
    • ‘blacklisted’ conduct - RPM, boycotts, bid rigging etc.
    • high market shares
    • claims involving regulating sectors
    • competition law and intellectual property
  • Where a competition authority has already investigated 
    • primary of EU competition law
      • EU Commission as amicus curiae
      • references to CJCE
    • ongoing investigations
      • duty not to impede (Masterfoods stay)
      • access to information

Wednesday 22 May - Multi-party and multi-jurisdiction competition cases

  • Which was to the forum?
    • for EU cases: ‘Brussels’ regulation
      • domicile of defendant
      • effects jurisdiction
    • for non EU cases: private inernational law of court seised
  • Whose law applies?
    • law of contract
    • law of place of effect? law of forum?
    • overriding effect of EU competition law: ordre publique
  • England as your forum
    • choice of High Court or Competition Appeal Tribunal
      • follow-on vs. stand alone actions
      • proposals for reform of CAT juridiction
  • Multiple claimants
    • collective, group and class actions discussed
    • competition class actions for the UK: government reform proposals
      • aims of proposals: helping small business and consumers
      • only for competition claims in CAT ....
  • Multiple defendants (cartels)
    • join and several liability: ‘anchor’ defendants and contribution claims
    • effect in Englands of non-EU (US) findings
  • Conclusion / Summary
    • competition litigation developments elsewhere

Monday 3 June - Cartel damages

  • Basic theory
    • Cartel overcharges. Output effects and deadweight losses. Damages to producers of complements. Imperfect substitutes and umbrella effects
    • Passing on defenses
  • Estimation and the Risk of the black box: What happends in damages cases when economics is done very bady
  • Introduction to empirical analysis in cartel cases
    • Methods for estimating but-for prices. Overview of Nera Report for DG Competition. 
  • Beyond the basics
    • Damages with two part tariffs
    • Imperfect cartelization
    • Damage estimation in practice
    • Discipline on reasonable interpretations of evidence – when economics is applied well

Monday 10 June - Damages in abuse of dominance and IP cases

  • Damages to rival firms versus consumers 
  • Framework for analysis
  • Introduction to damages in IP cases

About the course tutor
Vincent Smith is a partner at Sheppard & Smith and was, until mid 2010, a founding partner at Hausfeld & Co LLP in London focussing on UK and European claimant and complainant competition matters. He is also currently a Visiting Fellow at the British Institute of International and Comparative Law.

While at Hausfeld, Vincent led the team in the high profile ‘air cargo’ representative claim (Emerald v British Airways plc) and in a Competition Appeal Tribunal case in the chemicals sector for cartel claimants (Moy Park and ors v Degussa AG). He also worked on the claims against the marine hose cartel and the paraffin wax cartel for a wide spectrum of corporate claimants. In addition Vincent took a leading role in structuring insurance and funding for the firms collective damages claims.

He joined from the Office of Fair Trading, the UK’s main public competition enforcement body, where he was Senior Director for Competition and Director of its Competition Enforcement division from 2003 – 2007. He led the OFT’s 180-strong competition function, having overall responsibility for the OFT’s work in combatting cartels and other anti-competitive practices, and also for the OFT’s ‘first phase’ merger control duties, as well as oversight of its developing enforcement policy – for example on case prioritisation. From 2002-2003 he was the OFT’s Director of Competition Policy Co-ordination and deputy Director of the division.

At the OFT Vincent was responsible for many high profile decisions and policies. In particular, he led the settlement negotiations in Independent Schools and was heavily engaged in the ground breaking Mastercard interchange fees decision. Cartel enforcement, particularly in the construction sector, formed a large part of his responsibilities, and he was involved in all of the OFT’s major cartel investigations during his tenure. In particular he initiated the first steps in the UK to ‘fast track’ groups of cartel cases for public enforcement purposes. He also oversaw the OFT’s input to the later stages of negotiating and then implementing the ‘devolved’ European competition enforcement regime under EC Regulation 1/2003 in the UK and latterly took the initiative in shaping the OFT’s ongoing work on encouraging a greater degree of private enforcement of competition law through damages actions in the UK.

Before joining the OFT, Vincent was Legal Director for competition issues at OFTEL, then the UK telecommunications regulator, for two years, where he advised on a wide range of regulatory issues, including the first use in the UK by a public enforcement body of its formal powers under the Competition Act 1998 in March 2000.

Vincent qualified as a Solicitor (England and Wales) in 1990 after training with Simmons & Simmons and spent ten years in private practice in London and Brussels with the firm, specialising in EU and competition law.

Peter Davis, Executive Vice President at Compass Lexecon, and has substantial experience in competition policy and regulatory investigations. His current case-load includes advising on an ongoing Competition Commission’s (CC) market investigation; work on a large pan-European follow-on cartel damages case; and he has also worked on various high profile EU merger cases including EMI/Sony, NYSE Euronext/Deutsche Börse and Glencore/Xstrata.

Prior to joining Compass Lexecon he served on the Compeition Commissions panel of expert academic economists (2004-2006) and subsequently as Deputy Chairman of the CC (2006-2011), acting as Chairman of a range of inquiry groups investigating mergers and also hearing appeals against regulatory price control decisions in telecoms and water sectors. He also chaired the CC’s Payment Protection Insurance (PPI) market investigation.

He was President of the Association of Competition Economics (2009-2011).

Prior to joining the CC, he provided advice to clients and submitted written and/or oral testimony in a variety of Competition Act cases including Bacardi and BHB Rules and Orders in front of the OFT and in At the Races at the High Court under CPR Part 35.

He has a PhD in economics (Yale, 1999) and served on the faculties of MIT (1998-2002) and LSE (2002-2006). His academic work includes contributions to a number of leading academic journals. He is co-author of the leading textbook, Quantitative Analysis for Competition and Antitrust Investigations, which was published by Princeton University Press in 2010. He is currently Visiting Professor at University College London’s Faculty of Laws and has been listed in Who’s Who since 2010


Cancellation terms: 
If you wish to cancel your order for the course your cancellation must be received in writing no later than 14 days before the start of the course. If we receive your cancellation no later than 14 days before the start of the course we will refund any amount you have paid to us for the course less an administration charge of 20%. No refunds will be made for cancellations made by you within 14 days of the conference date.

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