In July 2016, the European Commission (“Commission”) imposed record fines of €2.93bn against five major European truck manufacturers for price fixing and other cartel conduct that occurred between 1997 and 2011 (“Decision”). Following the Commission’s settlement procedure, in which cartelists admit to their liability in return for a reduction in fines, the Decision was addressed to, i.e., binding upon, entities within the DAF, Daimler, Iveco, MAN, and Volvo/Renault corporate groups. As Scania, another truck manufacturer, did not participate in the Commission’s settlement procedure, the Commission's investigation against it continued under the Commission’s standard cartel procedure, leading to a separate infringement decision in September 2017 and a record fine for a single cartelist group of €880 million. Scania has appealed against the Commission’s decision at the European Union’s lower-tier General Court, contending that that it did not partake in any pan-European Anti-competitive Agreements with the other truck manufacturers.
The Decision ushered in a wave of competition damages claims across Europe that was truly unprecedented, both in the level of damages sought and in the sheer number and geographic spread of claims. Ever since, the national courts of multiple EU member states have been grappling with the effective case management of these claims.
The case management solution of the English courts was unveiled during a much anticipated fourth case management conference held on 29 and 30 October 2020 (“October CMC”). Due to the claims running at different stages of the litigation process, not all Trucks claims were under consideration at the October CMC, which mostly concerned the case management of the most advanced trucks cartel claims in the UK (“Frontrunner Claims”). A separate case management conference considering specific issues concerning certain less advanced, or “second wave”, claims is listed for 4 December 2020.
This article summarizes the developments and challenges as regards case management of the Trucks claims by the Competition Appeal Tribunal (“CAT”) in the UK, in light of the October CMC.
The Need for Effective Case Management
As the English courts have for long been an attractive venue of choice for European-wide private damages claims, it is unsurprising that they continue to see an uptick in competition litigation activity. At the time of writing, 22 separate Trucks claims and two collective proceedings (currently in pre-certification stage) have been brought in the UK alone, with additional potential claims looming on the horizon.
The Trucks claims before the English courts consider truck purchases/leases in 15 jurisdictions, including approximately 70,000 in the UK, circa 25,000 in France and 17,500 in Germany (“Core Markets”). In addition to the Core Markets, the UK proceedings also include claims for smaller numbers of truck purchases/leases from multiple non-core European markets.
The truck manufacturers also face claims in other jurisdictions, including the Netherlands, Germany and Spain, where the composition of claims differ in scope and outcome. For example, it is striking that the many claims filed to date in Spain, which often relate to only one or just a few trucks per claim, have already returned a high number of first instance judgments and an equally broad array of findings on overcharge. This is in stark contrast to the much larger and slower moving proceedings commenced in the UK, Netherlands, and Germany.
Given the volume and complexity of the claims, and eager to avoid the predicament faced by litigants in the Interchange Fees litigation (the next largest set of competition claims issued in the UK in terms of scale and breadth), the CAT has, from the outset, been very mindful of the need for effective and proactive case management in the Trucks proceedings. Previously, the Interchange Fees litigation had seen three lead claims brought against Visa/MasterCard by UK retailers, each subject to their own separate trial. Despite the fact that all three proceedings were similar in terms of the basis of claim and cause of action pursued, the CAT and High Court reached highly conflicting decisions, resulting in multiple appeals all the way to the UK Supreme Court.
Challenges in the Frontrunner Claims
Case Management Options
In the Trucks proceedings, the CAT has regularly communicated a desire to avoid excessive delay and allow some claims to progress to trial in the near future. There was however no consensus on how to achieve this. In the lead up to the October CMC, the parties to the Frontrunner Claims filed case management preferences with the CAT, setting out their position on both how those claims should proceed to trial and the substance of those trials. The parties’ case management preferences were divided into two main rival camps: (i) those seeking an initial UK-only overcharge trial for at least the Frontrunner Claims, with other issues like pass-on to be dealt with separately, and (ii) those advocating individual trials per claim (rather than a combined trial) of all the relevant issues, such as overcharge, pass-on, tax, and interest.
At the October CMC, the CAT confirmed that: (i) a combined trial (involving all businesses with a Trucks claim) would not be manageable; (ii) it did not want to deal with issues of overcharge and pass-on in separate hearings; and (iii) there should, initially, be three separate trials which could group claims together on the basis of their commonalities and complexities, despite the fact that this case management method was not favoured by most of the parties.
The first trial, commencing in April 2022, will hear postal service company Royal Mail and telecommunications company BT’s claims. The second trial will involve the two truck leasing companies Dawsongroup and Ryder, commencing around March 2023, with the third considering claims brought by waste management group Veolia, energy utility Suez, and industrial product supplier Wolseley, amongst others (“VSW Claimants”), estimated to commence in late 2023 at the earliest (“Third Trial”).
The CAT recognized that taking a multiple trial approach could potentially result in inconsistent decisions, given also that different judges will preside over each of the trials. It will also require the Defendants to engage in an extensive amount of preparatory work ahead of three large scale and complex trials, which will take place almost back-to-back. In considering the case management approaches, Mr Justice Roth stated that “with a cartel of this magnitude and complexity, and duration, I think that is a price that has to be paid by the Defendants”.
Supply Chain Issues
One interesting aspect of the Trucks proceedings is the existence of partial overlaps between some of the claims. For example, some Claimants purchased trucks but then leased them out to other Claimants. The result is that different Claimants and sometimes even the same Claimant (depending on how they procured different trucks) find themselves at differing levels of the supply chain.
This raises interesting considerations on the amount of overcharge that was passed-on by one Claimant to another and the overall impact of this on the damage suffered by each Claimant in such circumstances.
Where Claimants procured trucks indirectly, for example, from a truck leasing company, they will seek to establish that the cartelized price/overcharge was passed-on to them, therefore suffering harm as a consequence. On the contrary, upstream Claimants, such as truck leasing companies, will face different considerations and will seek to establish that overcharges were not passed-on to the downstream Claimants.
The CAT’s view at the October CMC was that grouping such Claimants with overlapping claims together in the same trial might help to avoid inconsistencies in the approach to assessing the level of overcharge passed-on from direct purchasers to indirect purchasers or lessees. No firm ruling was made on this point, however, and further submissions will need to be made and considered in a subsequent hearing.
New Trucks Claims
In managing the multitude of large and complex claims towards trial, the CAT will continue to face the serious challenge of how to minimize the colossal costs across the proceedings, with parties engaging, for example, in very significant and costly disclosure exercises in assessing quantum. The CAT’s case management powers will also be tested by the need to manage the new Trucks claims regularly being issued alongside the existing claims already running at different stages in the litigation process. Since December 2019, a further eight claims have been filed in the English courts. The management of the impending trials could therefore result in the CAT accommodating additional claims to the respective trial “groups”. For example, by the time some of the later trials are due to commence, the so-called “second wave” claims may well catch-up and be included (this is again a matter for further debate and consideration by the Tribunal).
Non-UK and Scania Trucks
Notably, the CAT confirmed the inclusion of the VSW Claimants’ French and German claims in the Third Trial, which are to progress on the same track as the UK claims. The CAT’s decision comes in spite of the Defendants’ request to stay of the VSW Claimants’ claims for French and German trucks. Although grouping the claims for French, German, and UK trucks together is a sensible approach having regard to the similarity of the underlying claims, this may increase the risk of inconsistent judgments across European jurisdictions. For example, in relation to the German claims, in addition to determining a level of overcharge in the German market, the CAT would also need to potentially opine on other issues, such as the hotly contested issue of German limitation.
Interestingly, although all parties were, to some extent, comfortable with a stay of the proceedings against one truck manufacturer, Scania, the CAT rejected Scania’s proposal that claims in relation to its trucks should be stayed pending the outcome of its appeal of the Commission decision to the General Court. As a result, Scania will, against its wishes, be included in the Third Trial. This shows yet again the CAT’s proactive case management style, and the parties can now be in little doubt that even in the rare instance where all parties agree on an issue, that is no guarantee that the CAT will proceed to order that course of action.
The CAT’s rulings on case management in the Trucks proceedings were never going to please everybody, and it was careful to emphasize at the start of the October CMC that there is no perfect solution to managing these claims towards trial. With that backdrop, overall the CAT’s directions from the October CMC showed a sensible and pragmatic use of its extensive case management powers. The solution found, while imperfect, ensures that the specificities of each individual claim are, at least to some extent, accounted for, while avoiding fragmentation into hundreds of small trucks claims, as happened in the Spanish Courts. The CAT’s directions also showcase well the ability of English judges to consolidate claims brought by Claimants from across the UK and beyond, which contrasts starkly with the Federal court system in Germany, for example.
The recent case management developments will also presumably encourage and facilitate settlement discussions, given the considerable amount of work the Defendants will otherwise need to engage in to prepare for three back-to-back large-scale trials between 2022 and 2024.