Friday, May 3, 2013
Posted by D. Daniel Sokol
Omar Guerrero Rodriguez & Alan Ramirez Casazza (Barrera, Siqueiros y Torres Landa, S.C) analyze Private Competition Actions for Damages Under Mexican Law.
ABSTRACT: For almost 20 years private enforcement for damages of competition law in Mexico was non-existent. As discussed below, there have only been two cases tried before civil courts seeking individual redress for damages as a consequence of violation of Mexican competition law. One explanation for this low level is that, different from other jurisdictions (i.e. the United States), private enforcement in Mexico cannot commence until the competition agency has determined—by an unchallenged resolution—that a violation to competition law has occurred. In this regard, Mexican competition law has been more regulatory- than court-driven.
Some other features also important to keep in mind: (i) competition law in Mexico is reserved only for the Federal Competition Commission's jurisdiction; (ii) there are no state competition agencies and, therefore, no state antitrust private actions; and (iii) class actions for competition matters were non-existent before the 2011 amendment to the Federal Code of Civil Proceedings and the May 2011 amendment to the Mexican Competition Law.
Before then, the only entity with standing to bring class actions in competition matters was the Federal Consumer protection agency (Profeco); it has not brought any since 1993. This lack of activity provided an important impetus for the 2011 class action amendment.
The May 10, 2011 amendments to the FLEC set forth a questionable provision that would allow private actions without a prior unchallenged finding of the FCC. Practitioners have conflicting positions regarding the validity of this provision; nothing has been resolved because no private competition action has been submitted since the amendments entered into force. It seems also difficult to believe that, despite the new provision, private actions without an FCC's finding will flourish since-as explained below-there is a binding precedent of the Supreme Court that bans such possibility.