Defendants May Find It Easier to Beat Class Certification After Supreme
Court’s Ruling in Comcast
On March 27, 2013, the U.S. Supreme Court concluded in
Comcast Corp. v.
Behrend that a class of plaintiffs challenging Comcast Corp.’s conduct in
the Philadelphia market was improperly certified.
The district court originally certified the class, finding that plaintiffs’
alleged damages could be calculated on a class-wide basis using common evidence
presented by their expert, and that common questions predominated the class.
Comcast argued that the model should be rejected because it did not isolate
damages for individual theories of harm, but the Third Circuit affirmed.
Justice Scalia, joined by Justices Roberts, Kennedy, Thomas and Alito, found
certification was inappropriate under Fed. R. Civ. P. 23(b)(3), focusing on the
damages model presented. Prior to class certification, Scalia wrote, “the
questions of law or fact common to the class members [must] predominate over any
questions affecting individual members.” Citing
Wal-Mart Stores, Inc. v.
Dukes, the Court concluded that, because the lower courts refused to
“entertain arguments against respondents’ damages model that bore on the
propriety of class certification” they “ran afoul” of Supreme Court precedent.
EU Invites Public Comment on Proposal to Simplify Notification Procedures
As part of its effort to make administrative procedures simpler for
businesses, on March 27, 2013, the European Commission (EC) invited public
comment on a proposal to simplify steps in the merger notification process under
the European Union Merger Regulation.
proposal includes use of a shorter notification form
for certain mergers that are unlikely to raise anticompetitive scrutiny. If the
combined market share of the two merging companies is below a certain
percentage, the merger would also fall under the simplified procedure.
The overall goal is to make mergers even more business-friendly, thereby
stimulating growth and competition in Europe.
Nestlé Fined $26 Million for Illegal Information Exchange
The world’s largest food company, Nestlé SA, was fined by Germany’s Federal
Cartel Office for illegal collusion with rivals. A March 27, 2012 e-mail
statement from the Cartel Office said the amount of the fine was reduced because
Nestlé cooperated with investigators. “Senior sales representatives at the
companies regularly met over several years to discuss the status and the
development of talks between their companies and retailers and also partially
about planned price increases,” said Andreas Mundt, head of the Cartel Office.
EU/UK Competition Law
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