Key Facts
- •Follow-on claim for damages due to LCD panel price-fixing cartel (2001-2006).
- •Claimants: Granville Technology Group Ltd (in liquidation), VMT Ltd (in liquidation), OT Computers Ltd (in liquidation).
- •Defendants: Innolux Corporation, Chunghwa Picture Tubes Ltd, LG Display Co. Ltd, LG Display Taiwan Co Ltd, Samsung Electronics Co. Limited, Samsung Electronics Taiwan Co Ltd.
- •EU Commission Decision (2010) found cartel infringement.
- •Claimants allege overcharge, loss of profits on lost sales, and interest.
- •Defendants deny loss, citing downstream pass-on and other defenses (limitation, foreign law).
Legal Principles
Competition law infringement claims are tortious claims for breach of statutory duty.
Garden Cottage Foods Ltd v Milk Marketing Board [1984] A.C. 130; Cooper Tire & Rubber Company Europe Ltd v Dow Deutschland Inc [2010] EWCA Civ 864
High Court bound by Commission's infringement decisions in follow-on claims; claimant must prove loss.
Cooper Tire Europe Limited
Measure of loss in competition claims: overcharge attributable to cartel activity less any pass-on to downstream customers.
Sainsbury’s Supermarkets Ltd v Mastercard Inc and others [2020] UKSC 24
English law requires consideration of downstream pass-on in assessing damages.
Sainsbury’s Supermarkets Ltd v Mastercard Inc and others
Limitation period starts when claimant has sufficient confidence to justify commencing claim preliminaries (knowing of cartel and participants).
Gemalto Holding BV and others v Infineon Technologies AG and others [2022] EWCA Civ 782
In insolvency, limitation test considers what a reasonably diligent insolvency practitioner could have discovered.
OT Computers Ltd (in liquidation) and others v Infineon Technologies AG and another [2021] EWCA Civ 501
EU competition law applies to agreements implemented in the EU, regardless of where formed; qualified effects doctrine applies.
Re Wood Pulp Cartel; Gencor Ltd v E.C. Commission; Intel Corporation Inc v European Commission
Claim for interest as damages requires pleading and proof of actual interest losses.
Sempra Metals Ltd v Inland Revenue Commissioners; Sagicor Bank Jamaica Ltd v Seaton
Outcomes
Overcharge rates: 8% for monitors, 4% for notebooks, 14% for TVs.
Preference for Parker's multiple regression analysis; adjustments for endogeneity risk and post-cartel price persistence.
Upstream pass-on: 100%.
Low intermediary margins; economic theory.
Downstream pass-on: 65%.
Economic theory, limited documentary evidence; balancing compensation with caution due to uncertainty.
Volume of commerce: Accepted claimants' figures with adjustments.
Management accounts provide best estimate; adjustments for lost invoices and product types.
Limitation defense rejected.
Claimants in liquidation; reasonable diligence standard for insolvency practitioners; publication of Commission's Statement of Objections was not reasonably discoverable given the circumstances.
Applicable law: English law.
Claim falls within EU competition law's territorial scope; most significant elements in England and Wales.
Interest awarded: Base rate + 2.5% pre-insolvency, compounded quarterly; base rate + 2.5% post-insolvency.
Proof of actual losses, considering borrowing rates; statutory interest post-insolvency.