April Antitrust Bulletin

April 24, 2013

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.

Specifically, the 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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