Analysis Group Team Publishes Article Comparing US, Canada, and EU Antitrust Private Damages Actions
June 28, 2016
Analysis Group Managing Principals Pierre Cremieux and Marc Van Audenrode and Vice President Marissa Ginn recently published an article in Competition Policy International's Antitrust Chronicle (Spring 2016, Volume 3, Number 1) in which they examine the differences between the well-established antitrust enforcement and compensation mechanisms of the United States and those established or amended by recent decisions in Canada and the European Union.
The article, “Antitrust Private Damages Actions in the United States, Canada and the European Union,” explores the legislative intent of each system along four metrics: 1) whether antitrust damages are meant to be punitive or compensatory; 2) from which sources damages are considered (e.g., simple buyer/seller overcharge compensation vs. additional consideration of lost profits for intermediaries); 3) whether damages are systematically awarded to indirect purchasers; and 4) whether the so-called “pass-on defense” – the argument that a member of a distribution chain suffered no damage because it “passed on” an overcharge in the form of higher downstream prices – is admissible. The authors go on to analyze the consequences and potential compensatory gaps inherent to each country's approach.