In the U.S., private antitrust enforcement plays a large role in the general enforcement scheme of the antitrust laws. Companies that plead guilty or are convicted of price-fixing generally pay fines but not restitution to victims—private litigation is assumed to be sufficient to compensate victims. The threat of treble damages in private actions (both individual and class actions) is significant, and often aggrieved parties can win more in damages than the government is able to recover and fine. And the chance to “detreble” damages by cooperating with plaintiffs can play a large role in a company’s decision to participate in the Antitrust Division’s leniency program.
The effects of such private suits are blunted in the European Union.
“Currently, if a potential claimant has a large damages claim against companies alleged to be involved in an illegal price-fixing cartel, it will often seek to anchor jurisdiction in the U.K., the only jurisdiction that allows significant discovery—although it is still much more limited than U.S. discovery,” says Valarie Williams, a partner at Alston & Bird. The measure would thus make it easier for claimants to bring more cases in member states other than the United Kingdom.
The directive would limit disclosure of certain types of evidence held by competition authorities, such as corporate leniency statements and settlement proposals. Other information could be disclosed at certain times, however, such as responses to information requests and the EC’s charge sheet.