On 3 and 4 March 2022, two days of pre-trial hearings were scheduled in the antitrust damages proceedings between a group of claimants including Suez Groupe SAS, Veolia Environment S.A. and Wolseley UK Limited against several truck manufacturers. [1] The claimants are seeking compensation for alleged damages as a result of the truck cartel. Issues on the agenda included dataset access, disclosure, directions to trial and selection of test claimants.
As to disclosure, the CAT ordered that the truck manufacturers must provide extra disclosure of technical specifications and dealer information. The CAT however denied claimants access to other information of which disclosure was requested, including about delivery and stock handling. [2]
As to dataset access, parties discussed the dataset that was composed by both parties and that contains key information that underpins the filed claims and the role it will play in the proceedings. The dataset includes both the claimants’ data and the data that claimants have been able to extract from the defendants’ disclosure. Defendants had the opportunity to intervene and refine, improve or match data. On behalf of the claimants, it was suggested that the dataset could be relied upon for pre-trial disclosure and could be used by economic experts to provide evidence of the alleged overcharge created by the cartel. [3]
As to the selection of test claimants, parties said they had reached a “considerable level of agreement” on a proposed set of test claimants. The filed claims of the selected test claimants will advance, while others will be stayed.[3]
- The case references are: 1292/5/7/18 Suez Groupe SAS and Others v Stellantis N.V. (formerly Fiat Chrysler Automobiles N.V.) and Others; 1293/5/7/18 Veolia Environnement S.A. and Others v Stellantis N.V. (formerly Fiat Chrysler Automobiles N.V.) and Others; 1294/5/7/18 Wolseley UK Limited and Others v Stellantis N.V. (formerly Fiat Chrysler Automobiles N.V.) and Others.[↩]
- According to Mlex, ‘Truckmakers must provide certain extra disclosure for cartel litigation, UK judge rules’, 4 March 2022.[↩]
- According to Mlex, Truckmakers, UK damages claimants focus on key dataset in hearing to help steer litigation’, 3 March 2022.[↩][↩]
On 14 February 2022, the CAT dismissed Ryder and Hill Hire’s antitrust damages proceedings against truck manufacturer MAN.[1] Reason for dismissal is that MAN ceased to exist as an independent legal entity following its merger with TRATON SE.[2]
- MAN entities involved in the proceedings were MAN SE, MAN TRUCK & BUS SE, MAN TRUCK & BUS DEUTSCHLAND GMBH and MAN TRUCK AND BUS UK LIMITED.[↩]
- Competition Appeal Tribunal, Consent order of 14 February 2022, Case NO: 1291/5/7/18 (T).[↩]
On 17 January 2022, the Court of Appeal ruled that the CAT was correct in not permitting ball-bearing cartelist NTN to continue to trial and plead that any damages were mitigated, or avoided, through cost reductions.[1] The position taken by NTN was that purchasers offset any increase in prices by decreasing prices elsewhere, i.e. by securing increased discounts from other suppliers (than the cartelist(s)). In particular, the question was whether such a defence would be permissible without any actual evidence that the claimant did in fact mitigate its loss in this manner but only upon the hypothetical basis that it is a “reasonable” inference that can be drawn that the purchaser would have mitigated its costs in this manner.
The Court of Appeal found no errors in the CAT’s ruling and agreed with its conclusion that NTN’s pleadings failed to meet the appropriate test to proceed to trial. The Court of Appeal agreed with the CAT and concluded: “I agree that the pleaded offsetting defence lacks particularisation or evidential underpinning. It is hypothetical and theoretical and, in some respects counterintuitive. It lacks realism. There are no policy considerations which justify permitting this defence to continue to trial.”.
In other words, the appropriate test does require actual evidence and a mere hypothesis is not sufficient in order for a defence to be allowed to proceed to trial.
On 14 January 2022, the CAT issued a third judgment in the mass claim proceedings of Walter Hugh Merricks CBE against Mastercard. Merricks is the representative of a class seeking damages from Mastercard for violating competition laws in relation to the setting of multi-lateral interchange fees (“MIFs”),[1] for which unlawful conduct Mastercard was fined by the European Commission (EC) in 2007. Since Merricks was granted a Collective Proceedings Order (CPO) for opt-out proceedings by the CAT’s 18 August 2021 decision, it was necessary for the order to specify the “domicile date”.
The “domicile date” has to be specified in the CPO for the purposes of determining whether a person is domiciled in the UK. A key element of opt-out claims is that claimants who fall within the class and who are domiciled within the UK are automatically included in the class unless they opt out. Because of the specific way the class was defined in the claim order in this case, the determination of the domicile date had even further implications.
Merricks sought a determination that the domicile date should be 6 September 2016, being the date the claim form was issued. Mastercard submitted that the domicile date should be 18 August 2021, when the decision to grant the CPO was made. If Merricks were to prevail, that would mean that all persons being alive on 6 September 2016 but who had died prior to the CPO date would be included in the class (by the personal/authorised representative of their estate). If Mastercard were to prevail, this entire group would be excluded.
Because of the size of the proposed class (potentially 46.2 million people) and the extended duration of almost five years between the issue of the claim form and the decision to grant a CPO, this issue was of particular importance in this case. The preservation of approximately 3 million claims was at stake.
The CAT sided with Merricks and ruled that the domicile date should be specified as the claim form date, i.e. 6 September 2016. However, the CAT also made clear that it reached this conclusion based on the specific circumstances of this case and that it considers it undesirable for future applications for the class definition to depend on the domicile date.
[1] MIFs are fees charged between banks for transactions using Mastercard-issued credit and debit cards.
In the proceedings initiated by Ryder against truck manufacturer DAF,[1] the parties seem to have largely reached consensus as regards the access DAF will grant to relevant documentary evidence. The conditions under which DAF will give access are laid down in a draft order submitted to the Competition Appeal Tribunal (CAT). The District Court noted that the document was well prepared, but that various rounds of producing evidence will follow. The court also commented on the degree of access that can be expected; however, the right balance will always have to be found, also in view of the costs associated with the granting of access. A written judgment will follow later.[2] Claimants and defendants in the trucks cases in the Netherlands are currently debating whether the so called Ryder documentation can be disclosed in Dutch proceedings as well.
[1] Case reference is 1291/4/7/18 (T) Ryder Limited and Another v MAN SE and Others.
[2] According to Mlex, ‘DAF and Ryder progress with disclosure issues for UK truck-cartel damages suit’, 13 January 2022.
On 31 March 2022, the summons of Stichting Nuon-claim versus Vattenfall et al. (formerly Nuon) was registered in the central register for collective claims.[1] The object of Stichting Nuon-Claim is to promote the interests of large-scale users (these are often small and medium-sized enterprises) that have suffered damage as a result of Vattenfall et al. According to the foundation, this damage was caused because Vattenfall et al. wrongly charged its large-scale users a kW fee. This fee usually pertains to the provision of the maximum network capacity that the customer needs at any time. Because this service is only provided by a grid manager, Vattenfall et al., as a supplier, cannot charge these costs.
In this class action, the foundation is therefore claiming, inter alia, payment by Vattenfall et al. of the amounts that the injured parties paid to Vattenfall et al. in kW fees during the relevant period. This amount is estimated at more than € 400,000,000. The claim is primarily based on unlawful act; Vattenfall et al. violated their duty of care, and in addition, it made misleading statements. Alternatively, the foundation bases its claim on undue payment and, as a third alternative, on breach of contract.
[1] https://www.rechtspraak.nl/SiteCollectionDocuments/RBAMS-dagvaarding-collectieve-vordering-Vattenfall-cs.pdf
On 30 March 2022, the Amsterdam District Court rendered judgment in the case of Stichting Diesel Emissions Justice versus Volkswagen et al. [1] In this dispute, the foundation is claiming, inter alia, damages from Volkswagen et al. because it manufactured and sold diesel cars with “cheating” software. In this judgment, the District Court rendered a decision on jurisdiction and applicability of the WAMCA.
Because this dispute contains international aspects (defendants domiciled in various EU countries), the District Court is obliged by law to first decide whether it has jurisdiction to assess the substance of the claims. The claims of the foundation involve the peculiarity that not all the claims have been lodged against all the defendants for the benefit of the same groups of persons whose interests the foundation claims to represent. According to the District Court, this affects the assessment of jurisdiction, which is why it distinguishes between persons who purchased a vehicle in the Netherlands and persons who purchased a vehicle in another country of the European Union. The dealers and the importer are all domiciled in the Netherlands. The claim lodged against them that serves to protect similar interests of persons residing in the Netherlands who purchased a vehicle in the Netherlands is therefore not of an international nature. The Dutch court has jurisdiction with regard to that claim. These defendants can act as anchor defendant with regard to the claim against the car manufacturers and the software manufacturer that serves to protect the similar interests of persons who purchased a vehicle in the Netherlands; after all, there is a sufficiently close connection between the aforementioned claims. According to the District Court, this close connection is lacking with regard to the claim aimed at protecting the similar interests of persons who purchased a vehicle in another country of the European Union. With regard to that claim, the District Court finds that it has no jurisdiction on the basis of Article 8(1) Brussels I Regulation Recast. Nor can jurisdiction with regard to that claim be derived from Article 7(2) Brussels I Regulation Recast, because the place of the act (handlungsort) and the place where the damage occurred (erfolgsort) is not located in Amsterdam, according to the District Court.
The District Court subsequently gave an opinion on the applicability of the WAMCA. The WAMCA applies if the claim is lodged after 1 January 2020 and the harmful event or events occurred on or after 15 November 2016. The District Court finds that the initial, common and essential harmful event to which the legal claim and the proceedings pertain is, in this case, the putting in place of the illegal manipulation tool. That is why, according to the District Court, Article 3:305a (old) DCC applies in this case.
On 30 March 2022, the Amsterdam District Court rendered judgment in the case of Stichting Diesel Emissions Justice versus FCA et al. [1] In this dispute, the foundation is claiming, inter alia, damages from FCA et al. because it manufactured and sold diesel cars with cheating software. In this judgment, the District Court rendered a decision on jurisdiction and applicability of the WAMCA.
Because this dispute contains international aspects (defendants domiciled in various EU countries), the District Court must assess of its own motion whether it has jurisdiction to assess the substance of the claims. FCA N.V. (parent company), FCA NL and the dealers are all domiciled in the Netherlands. Consequently, there is no international connection for the legal claims instituted by the foundation that serve to protect the persons residing in the Netherlands. The legal claims instituted by the foundation that serve to protect persons who are not resident in the Netherlands do, however, involve an international aspect. Since FCA N.V., FCA NL and the Dealers are domiciled in the Netherlands, the international jurisdiction of the Dutch court in this respect is based on Article 4(1) Brussels I Regulation Recast. The international jurisdiction of the Dutch court with respect to FCA Italy and Alfa Romeo (domiciled in Italy) must also be determined based on the Brussels I Regulation Recast. According to the District Court’s opinion, jurisdiction can be derived with regard to FCA Italy and Alfa Romeo on the basis of Article 8(1) Brussels I Regulation Recast because FCA N.V. can be qualified as anchor defendant; the claims against the various defendants are sufficiently related, whereby it was not unforeseeable for FCA Italy and Alfa Romeo that they would be summoned in the Netherlands, since this is the country where their parent company has its registered office. The District Court therefore declares that it has jurisdiction with regard to all defendants.
The District Court subsequently gave an opinion on the applicability of the WAMCA. The WAMCA applies if the claim is lodged after 1 January 2020 and the harmful event or events occurred on or after 15 November 2016. The District Court finds that the initial, common and essential harmful event to which the legal claim and the proceedings pertain is, in this case, the development of the illegal manipulation tool. According to the District Court, it has not been sufficiently asserted or demonstrated that this activity also took place after 15 November 2016, as a result of which Article 3:305a (old) DCC applies in this case.
On 29 March 2022, there was a hearing at the district court of Amsterdam in the first group of cases relating to the truck cartel, in which 15 claimants instituted proceedings against DAF, Daimler, Iveco, MAN, Volvo/Renault and Scania. Two interlocutory judgments have already been rendered in the first group. The hearing in March concerned the admissibility of the claimants’ claim and the validity of the assignments, the applicable law and the offer by the trucks manufacturers to provide documents. On 13 July 2022, the District Court will rule on these topics and decide how the proceedings will be continued.
On 8 March 2022, the England and Wales High Court issued its judgment in SMOv TikTok Inc. and others.[1] The case concerned a representative claim brought by a child and her litigation friend, the (now former) Children’s Commissioner for England, on behalf of a class of children under the age of 16 who use or have used TikTok in the UK. According to SMO, TikTok invades the privacy of children and misuses their private information, in violation of the Data Protection Act 2018 and the UK GDPR. The defendants are six TikTok entities within various jurisdictions.
To start the case, SMO sent one letter of claim to all defendants, without the required pre-action correspondence. SMO did so in expectation of Supreme Court’s judgment in Lloyd v. Google (discussed in Q4 2021). SMO then requested a stay of proceedings, awaiting the outcome of Lloyd v. Google, which was granted by the High Court. This meant that SMO had until 30 December 2021 to serve out the claim (the required pre-action correspondence) to the foreign TikTok entities. SMO did not, however, succeed in serving the entities in the United States and China within this timeframe.
The question before the High Court now was whether SMO could be granted a (further) extension to serve the claim to these entities. The High Court refused to grant this request because SMO did not provide a valid reason to have postponed serving the other entities. As a result, SMO only successfully served two out of the six defendants. Namely, TikTok Information Technologies Limited and TikTok Technology Limited, based in the United Kingdom and Ireland.
