How does the court approach the assessment of loss in competition damages cases? Are “umbrella effects” recognised? Is any particular economic methodology favoured by the court? How is interest calculated?
The assessment of losses is calculated by courts as the difference between the current situation of the victim and their hypothetical situation but for the anti-competitive act. Umbrella effects are recognised in the sense that anyone who has incurred damage – directly or indirectly – by an infringement of competition law has a right to full compensation. Proof of the infringement, the damage and the causal link between those two is, however, still required.
Methods of evaluation of the damage suffered include the use of economic models and expert evidence. In line with the practice in other EU Member States, Belgian courts favour the comparator-based analysis to assess the loss in competition damages claims. The court also has the option to ask the Belgian Competition Authority for assistance in assessing the loss amount. If the loss cannot be assessed in any objective way, the court can choose to award damages on an equitable basis.
Unless there is a contract providing otherwise, interests are generally awarded starting from the date on which the loss arose until the date of full payment, at a standard interest rate provided by law.
Damages competition claims are not usual in Brazil; notwithstanding, they are increasingly growing. Moreover, such claims are relatively new and, as such, there are no settled case law on issues such as damages calculation.
- As mentioned above, the PRC laws do not provide any detailed guidance as to the assessment of loss in competition damages cases. In general, the PRC court has broad discretion in this regard. For example, according to the statement of the head of the SPC IP division, the discretionary method for damages calculation commonly used in IP cases could also be applied to competition damages claims. Thus, the courts may determine a reasonable amount of damages at their discretion by considering factors such as the nature, extent and duration of the alleged monopolistic conduct, among others.
- The PRC laws do not explicitly provide whether damages arising from “umbrella effects” can be recovered. Previous competition damages cases have not touched upon damages arising from “umbrella effects” as well. As such, it remains to be seen whether the PRC courts will recognize the damages arising from “umbrella effects”.
- Since the competition damages claims in China are limited, it is hard to say whether there is any particular economic methodology that is favoured by the PRC court. While the PRC courts may consider the economic methodologies proposed by economists, they have broad discretion in choosing the economic methodology applicable to each case, which may vary from case to case.
- In competition damages cases, the plaintiff is entitled to claim statutory interest for the amount of loss suffered, which may be calculated from the date such loss is suffered until damages are compensated.
The Court is empowered under the law to estimate the amount of harm if it is established that a claimant has indeed suffered harm but it is practically impossible or excessively difficult precisely to quantify the harm suffered on the basis of the evidence available. The Court may further request the assistance of the CPC in proceedings relating to an action for damages for the purposes of determining the quantum of such damages.
Law 113(I)/2017 is silent as regards “umbrella effects” and whether these are recognised.
The Economic Court usually rely on the economic study of the ECA along with the investigations done by the Public Prosecution in order to establish the concept of loss, which has rather an economic perspective on the relevant market in Egypt. In the presence of complex cases, the Court may also appoint an expert if it deems necessary to have a better understanding of the case.
With regards to interests, the general rule is that when the object of an obligation is the payment of a sum of money of which the amount is known at the time when the claim is made, the debtor shall be bound, in case of delay in payment, to pay to the creditor, as damages for the delay, interest at the rate of four percent in civil matters and five percent in commercial matters. Such interest shall run from the date of the claim in court, unless the contract or commercial usage fixes another date. If the amount is not known when the claim is made then the court shall decide the interest from the date of the issuance of the judgment.
Assessment of loss
The court’s assessment of loss in competition damages cases is mainly based on economic evidence provided by claimants. This economic evidence, which is enclosed in reports prepared by economic experts, is increasingly carefully examined by judges. In this respect, the assumptions mentioned in such reports must be explained and be consistent with the main characteristics of the relevant market(s). Moreover, the data used in the reports must be verifiable and provided on request from the court. Finally, robustness tests must be provided with the analysis and the results presented in the analysis must be credible.
In practice, the courts quantify the damage by assessing the difference between the situation as observed (i.e. where the infringement of competition law occurred) and a counterfactual situation (i.e. where the infringement would not have occurred). Several methods can be used to construct and quantitatively assess the elements of the counterfactual situation.
The following economic methods are those most frequently used and recognised by French courts:
- Comparator-based approaches, in particular time-series comparisons (analysing prices before, during and/or after the infringement) and/or “differences-in-differences” models (analysing the change in price for a cartelised market over time, and comparing that against the change in price in a non-cartelised market over the same time period);
- Econometrics analysis, which use econometrics to assess all the factors that influence the formation of a variable (e.g. the price) “in normal times” (i.e. in a scenario where the infringement did not occur). Thus, it is the econometric model that constructs the counterfactual.
- Change in trends detection that shows that the infringement of competition law has led to a durable change in model (e.g. market or price).
Moreover, article R. 481-1 FCC (introduced into French law as part of the implementation of the Damages Directive) provides that judges may, in the context of a competition damages case, ask the FCA for guidance on the quantification of the damage. In this respect, it should be noted that the judge may not entrust the FCA with a general task of quantifying such damage but may ask it to give its opinion on the relevant assessment methods.
It is regrettable that in some cases first instance judgments lack substantiated reasoning when it comes to the assessment of loss in competition damages cases. However, the Paris Court of Appeal has recently established clearer principles on damage quantification in its Fiches Méthodologiques of October 2017. These Fiches Méthodologiques should help first instance courts to better reason their decisions on this point.
When a cartel leads to an increase of the cartelists’ prices on the relevant market, competing undertakings not party to the cartel may respond by increasing their own prices to maximise their profits. Consequently, the damage caused by the cartel may harm the purchasers of the competitors of the infringers (umbrella effects).
The ECJ has recognised that any person is entitled to claim compensation for the harm suffered where there is a causal relationship between that harm and the cartel (see case C-557/12, Kone v. OBB-Infrastruktur, ECJ judgment of 5 June 2014). In particular, in the Kone judgment, the ECJ rules that victims of umbrella effects may obtain compensation if it is established that:
- The cartel was liable for the harm they suffered; and
- The members of the cartel could not be unaware of the specific aspects of the market that render the umbrella effects possible.
French courts have so far never ruled on umbrella effects.
The payment of interest is an important aspect of compensation.
In competition litigation, two types of interest may be awarded to the claimant: compensatory interest and default interest.
The purpose of compensatory interest is to compensate for the damage resulting solely from the delay in the payment of a sum of money. In this respect, French courts usually apply the legal interest rate. Such legal interest rate is established by decree every semester. In 2019, the legal interest rate was established at 0.86%, running from the first day on which the damage occurred until the day the judgment is rendered.
However, in recent cases, French courts have applied a higher interest rate (in lieu of the legal interest rate), for the purpose of compensating the victim for the loss of a specific investment opportunity because the amounts owed were not available to the victim. In such cases, the interest was calculated by applying the weighted average cost of capital (WACC) which is set by taking into account the average annual rate of return expected by shareholders and creditors in return for their investment. In principle, to grant such higher interest rate, the claimant must demonstrate that the unavailability of the sums in question led to either a restriction of its activity or to being obliged to renounce duly identified investment projects (see e.g. Paris Court of Appeal, judgment of 10 May 2017, Outremer Telecom v. Orange Caraïbe, No. 15/05918 in which the Paris Court of Appeal judged, contrary to the Paris Commercial Court in first instance, that the claimant did not demonstrate that the unavailability of the sums in question would have led it to abandon specific investment projects).
Default interest aims at compensating the delay of any payment due. This interest is due from the date of the judgment and until the defaulting party pays the ordered amounts and is calculated according to the legal rate (i.e. currently 0.86 %).
Assessment of loss
Under German law, loss in competition scenarios is assessed pursuant to the general standards in sections 249 et seq BGB. Damage is therefore calculated by comparing the actual, cartel-affected price and the hypothetical price that would have been charged in absence of the cartel (‘but-for price’). The difference between those two prices constitutes the loss.
A cartel can be accompanied by a so-called umbrella effect, ie due to inflated prices, suppliers not participating in the cartel may consciously or unconsciously raise their prices “under the umbrella of the cartel” to a level that would not be attainable in the case of undistorted competition (so-called umbrella pricing). Hence, a buyer also pays excessive prices not only to the cartel members but also to cartel outsiders and thus suffers a cartel damage as well when buying their products. The BGH recognized the possibility of umbrella effects (decision of 12 June 2018, case ref KZR 56/16, para 39 – Grey Cement II) and specified the elements for determining an umbrella effect more precisely in a later decision: (i) the degree of market coverage, (ii) the duration of the infringement and (iii) the homogeneity of the products (decision of 9 October 2018, case ref KZR 51/16, para 71 Liquid Gas I), yet the case law is far from fully developed.
Favoured economic methodology
The BGH favours methodologies which compare other, cartel free markets to the particular market affected by the cartel, eg the market of the same product in another geographic region or at another time or the market of a comparable product.
Interest is calculated pursuant to section 33a para 4 GWB in conjunction with sections 287, 288 BGB. Competition damage claims are usually subject to an interest rate of five percentage points above the base rate of the European Central Bank (ie the interest rate applied by the European Central Bank to its main refinancing operations). The GWB as of 13 July 2005 had similar rules in section 33 para 3 and also referred to sections 287, 288 BGB.
Prior to 13 July 2005, the GWB did not contain any particular provision regarding interest to be paid by a cartelist. Hence, interest has to be calculated pursuant to the general provisions of the BGB (which provided for an interest rate of four percent per annum as of the occurrence of a loss. This interest rate increases to 5 percentage points above base rate if the obligor is in default with the damage claim).
As at the time of writing, the approach for assessing loss in competition damages cases have yet to be determined by the courts in Hong Kong. However, proceedings before the Competition Tribunal generally follow the same principles in civil proceedings in Hong Kong. Also, the Competition Tribunal has considered overseas cases (particularly EU case law) to be of considerable reference value to public competition law enforcement cases in Hong Kong. It can therefore be expected that the Competition Tribunal would also draw reference from analogous principles in overseas competition damages cases. However, the extent to which such principles will apply in Hong Kong competition damages cases remains to be seen.
Interest on debts and damages may be determined by the Competition Tribunal as it sees fit under section 153A of the Competition Ordinance. A judgment debt will carry simple interest at the rate specified by the Competition Tribunal under section 153B of the Competition Ordinance. Alternatively, the applicable interest rate can be determined by the Chief Justice from time to time. For instance, the applicable interest rate on judgment debts between the period 1 April 2019 to 30 September 2019 is 8.125% per annum.
There are only few competition damages cases that have reached the assessment of loss stage, as most of the cases have been settled.
In general, there are two recognized types of competition damages claims: overcharge claim, according to which, the price charged was higher than the price that had to be charged; Loss of future profits, according to which, if it were not for the violation of the Competition Law, the defendant's profit would have been greater.
Both of the claims focus on the question of “alternative reality”, what the real price would be if the competition wrong did not occur. Therefore, the question in connection with the assessment of loss is how the court asses the “alternative reality”.
As mentioned, there are only few competition damages cases that have reached the assessment of loss stage. In most of these few cases, in which the damage was calculated by the court, due to lack of evidence or partial or accurate data, the damage was determined by means of an estimate in a way that reflects the gap between the market price and the actual price charged.
So far, the “umbrella effects” have not been recognised by the Israeli courts; however, no claims have been made against it. There are a few cases of competition damages in which the “umbrella effects” raised by the parties, but they have not it been decided by the local courts.
If the courts will be required to assess loss in future competition damages cases, we expect that the court will use accepted calculation methods, such as "Before-During-After" method, or on the “Yardstick” method, and in fact any practiced and complete method. The first method presents a competition between the plaintiff’s experiences in the same market before the act of injustice began or after it ended, during the period which the injustice occurred. The Yardstick method presents an isolation of the damage caused by the civil wrong, by comparing the relevant market to another firm in a comparable market, which was not affected by the injustice.
A decision to pay compensation also includes instructions from the court regarding interest and linkage. As a rule, the interest and linkage differences will be determined from the date of occurrence of the event that established the cause of action, and according to the interest index and the Awarding of Interest and Linkage Law, 5721-1961.
In competition damages litigation concerning a cartel or bid-rigging, the amount of damage is determined by assessing the monetary difference between the actual price of the products or services and the anticipated price that would have existed were it not for the violation of the AMA. While there is no generally-accepted methodology to determine the anticipated price, if it is possible to identify the price formed immediately before or after the period of violation and if such price is considered to be formed based on free competition, then, in principle, the court tends to find that such price is the anticipated price.
In cases where the anticipated price cannot be identified in this way, the judge has significant discretion in determining the amount of damage. This is because Article 248 of CCP, which was introduced in 1996, sets forth that when it is extremely difficult to prove the amount of damage, the court may determine an appropriate amount of damage at its discretion. Due to this discretionary power, the court has not been faced with the necessity of relying on a specific economic methodology to quantify the amount of damage, although economic analysis of the amount of damage is becoming more common.
“Umbrella effects” have not been recognized by the court although the theories have been introduced to Japan.
As for interest, interest for the period from the date of service of the written complaint until the payment of damages is usually approved.
The main principle is that damages are calculated on the basis of actual loss. If an accurate (concrete) calculation is impossible or very difficult, the court has the discretion to estimate damages in the abstract. The injured part can claim direct and indirect (loss of profit) damage, as well as damage resulting from dealings with non-cartel participants (umbrella damage).
The compensation due for delay in the payment of a sum of money consists of the statutory interest of that sum over the time that the debtor has been in default with its payment. For cases based on tort, payment is due from the date the damage can be claimed (i.e. the date the damage has been incurred). The statutory interest rate is determined by the government; currently it is 2% per annum.
The PCA does not set out specific guidelines on the quantification and assessment of loss and damages in competition cases. There is also no case law to provide guidance at this time.
Following the general provisions of the Philippine Civil Code, compensatory damages are recoverable, and awarded based on “pecuniary loss suffered [as] duly proved;” they cover the value of the loss suffered, as well as lost profits.
The PCA and Philippine case law do not provide any guidance on "umbrella effects", which are damages that may have been incurred by purchasers of the competitors of the entity charged with violations of the PCA.
In the absence of case law involving the PCA at this time, we have yet to see whether courts will favour any particular economic methodology for civil actions for violations of the PCA. In general, under Philippine law, actual losses or damages will have to be proven with reasonable certainty through the best evidence available (e.g., receipts, invoices, vouchers).
In addition, the PCC and the courts are allowed to award treble fines for violation involving trade or movement of basic necessities and prime commodities (e.g., rice, corn, bread, dried and canned fish and other marine products, fresh pork, beef and poultry meal, eggs, processed milk, fresh vegetables, coffee, sugar).
Interest may be imposed on the amount of damages awarded may be imposed at the discretion of the court at the rate of 6% per annum, from the date of final judgment until full payment.
 - Civil Code, Article 2199.
 - Oceaneering Contractors (Phils.), Inc. v. Nestor N. Barretto, G.R. No. 184215, 9 February 2011.
 - PCA, Section 41.
 - Federal Builders v. Foundation Specialists, Inc. GR No. 194507, 8 September 2014.
In calculating competition damages the court must follow the mandatory rules of Polish civil law, under which damages awarded are designed to recreate the claimant’s position in which it would have been had the breach (e.g., the competition law infringement) not been committed. The court does not have right to award damages exceeding the amount of actual loss, neither to award more, than claimed.
There are no special rules concerning quantification methods in competition damages cases prescribed by the provisions of the Polish Private Enforcement Act nor the Polish civil law, however it indicates, that the court may refer here to the Commission guidelines on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union or, guidelines of the European Commission on how to estimate the share of the overcharge which was passed on to the indirect purchaser, referred to in Article 16 of the Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. Also, at the request of the court, the OCCP or the competition authority of another Member State of the European Union may assist the court in determining the amount of damage, if the evidence and information gathered by the court allow it.
However none of these are binding the court. If the court decides that it is impossible or extremely difficult to prove the precise amount of damage, it may award an adequate amount calculated upon consideration of all the facts of the case.
Where compensation was made on the basis of a price from a date other than the date on which the compensation was determined, the claimant can seek for compensatory interest from the date on which the prices were the basis for determining compensation until the date on which the claim becomes due and payable.
The umbrella effect is recognised and indirect purchasers can seek competition damages from the infringers.
In general terms, the right to compensation covers actual loss and profit loss, plus interest, which is calculated separately, as default interest set out by law.
“Umbrella effects” have been recognized in Law 23/2018, as the cartels are responsible for the damages derived from infringements of competition law. In case the quantification of damages is considered to be excessively difficult, the court shall proceed with a close estimate, taking into account the available evidence and the assistance of the Portuguese Competition Authority, as well as taking into consideration the Communication from the European Commission on the calculation of damages in claims for damages based on breaches of Article 101 or 102 of the TFEU.
The Civil and Commercial Code allows a party to claim for any and all damages caused by the infringing party. However, how the court approaches the assessment of loss will be determined on a case by case basis since currently there is no particular economic methodology favoured by the court.
Interest is awarded in all cases, mainly due to the high inflation that Argentina experiences periodically.
The objective of damages awards for infringement of competition law is to restore the claimant’s financial situation to that which it would have been had the infringement never occurred. Therefore, when setting damages, the courts will compare the claimant’s actual financial situation with the hypothetical financial situation absent the infringement. Compensation will also reflect other detrimental effects on the plaintiff’s business, even those of a more long-term or difficult-to-quantify nature (such as loss of goodwill or detrimental impact on an intellectual property right).
It follows from the EU Court of Justice judgment in Kone that umbrella effects should be recognised.
Interest is calculated from the day the damage occurred until the day the damages are paid. The main rule is that the interest amount is calculated based on Section 5 of the Interest Act (reference rate plus 2 per centage points). However, in certain circumstances the interest amount can be calculated according to Section 6 of the Interest Act (reference rate plus 8 percentage points).
The Competition Act provides that the difference between the price that the claimants were to pay if the competition was not restricted and the price they paid due to the anti-competitive conduct can be requested as losses. With regard to the "umbrella effects", the Competition Act does not include any specific provision and the precedents of the courts and the Court of Cassation do not provide insight on this subject. All in all, one could argue that claiming damages under "umbrella effects" would require the claimant to concretely prove the link between its losses and the prices applied by the undertakings that did not participate in the anti-competitive conduct. Even in that scenario, the courts could potentially reject the claim as they look to the Competition Board’s decision regarding the scope of the infringement, and the wording of the Competition Board's decision would not indicate these potential defendant undertakings as ones that violated the Competition Act.
As antitrust-based damages actions are a relatively underdeveloped area of law in Turkey, there is no established economic methodology favoured by the courts.
As a general rule, the start date for the interest would be the date when the anti-competitive conduct began and the interest would be the legal interest rate calculated based on the relevant legislation.
There is no settled approach to the assessment of loss in competition damages cases. The Federal Court has indicated a willingness to assess loss by application of a proper economic model which quantifies the effect of contravening conduct on market processes.
In any particular case, the court must do its best to quantify loss or damage, even if a degree of speculation and 'guess-work' is involved.
Australian courts have not considered whether 'umbrella effects' may influence the quantification of damages. However, to the extent that a cartel results in price increases by non-cartel participants, any loss or damage caused by these increases should be recoverable from the contravener in the quantification of loss or damage caused by the contravening conduct.
There is no power in the CCA to award interest on damages. However, the Federal Court has the power to award interest, which is calculated in accordance with the Federal Court's Interest on Judgments Practice Note (GPN-INT).
A Canadian court would typically start by estimating the overcharge resulting from the alleged anti-competitive conduct. This can be done by comparing the alleged conspiracy time period with time periods which precede or follow the anti-competitive conduct, and/or through regression analyses that attempt to identify the overcharge attributable to the anti-competitive conduct. In class actions, the overcharge must then be allocated among class members.
The Supreme Court of Canada has held that indirect purchasers have a right of action in competition damage claims, which requires the court to assess the portion of the loss that has been passed on to those indirect purchasers. Canadian courts have also recognized the potential for “umbrella effects”, i.e., the concept that the sellers who are not alleged to have participated in the conspiracy nevertheless increased their prices as a result of the conspiracy, and that the defendants should be liable for their increase. To date, no Canadian court has awarded damages based on an “umbrella effects” theory, but Canadian courts have declined to strike such allegations at the pleadings stage. One question that we expect will be decided by the Supreme Court of Canada this year when the appeal of Godfrey is released, is whether “umbrella damage claims” are available pursuant to section 36.
Pre-judgment and post-judgment interest is generally available, calculated in accordance with the applicable provincial or Federal Court rules.
As explained under answer 13 above, usually courts appoint technical experts to be assisted on economic issues and on the quantification of damages and we do not have count of any particular favoured economic methodology.
Generally speaking, the rules provided by the ICC on the compensation of damages apply (Articles 1223, 1226 and 1227):
- damages to be compensated shall be proven as the immediate and direct consequence of the unlawful conduct;
- the main elements are emerging damages and loss of profits.
L.D. 3/2017 provides that:
- the existence of damages caused by a cartel is presumed, except evidence of the contrary by the infringer;
- the judge may request assistance from the Italian Competition Authority by formulating specific requests for guidelines which relate to the quantification of the damage.
As for interests, they start accruing from the date of commencement of the civil proceedings at the legal rate.
As anticipated, the general principle in competition damages cases is full reparation of the incurred harm, which should place a person having suffered harm in the position in which that person would have been had the infringement not been committed.
General. The Court has the power to estimate the amount of the alleged damage, ensuring that neither the burden of proof nor the standard of proof necessary to quantify the prejudice make it practically impossible or excessively difficult to exercise the right to full compensation. Cartel-type infringements are presumed to have caused a damage: the presumption is rebuttable, the alleged infringer having the possibility to rebut it.
Upon request of the Court, the Romanian Competition Council may assist for the purposes of determining the quantum of the damages, if the latter deems such assistance adequate.
Under Romanian, compensation may cover both actual loss (damnum emergens) and loss of profit (lucrum cessans). In addition, interest may be awarded at a rate which is set at the reference interest rate plus four (4) percentage points. The reference interest rate is set by the National Bank of Romania.
Apart from the aforementioned rules, there is little to none national guidance in quantum assessment in competition damages cases; given the novelty of the legislation, its provisions are still largely untested in practice. In the only damages claim resolved through a final court decision so far, namely the case in which the Romanian Post was obliged to compensate the damage suffered by a client as a result of an abusive discrimination practice by the former, the Bucharest Court of Appeal simply awarded the claimant the amount equal to the additional discount obtained by another (favoured) client of the defendant.
Absent national guidance and caselaw, we expect Romanian courts will refer to the European Commission guidelines – i.e., (i) the 2013 “Practical Guide on quantifying harm in actions for damages based on breaches of article 101 or 102 of the Treaty on the Functioning of the European Union” (the Practical Guide) and (ii) the “Guidelines for national courts on how to estimate the share of overcharge which was passed on to the direct purchaser” (the Overcharge Guidelines).
Damages are compensatory, aiming to put the claimant in the position it would have been in had the breach of competition law not occurred. This may include the claimant’s lost profits.
Under EU law, claimants may seek ‘umbrella’ damages i.e. they can claim for purchases made from firms that did not participate in the cartel, on the basis that the cartel inflated the market price, enabling non-cartelist firms to charge higher prices to their customers as a result (see Case C-557/12 Kone AG & Others v OBB-Infrastruktur AG (2014)).
No clear evidential preference has emerged in relation to quantifying damages. Assessment of damages can range from consideration of complex econometric evidence adduced by expert economists to narrative evidence put forward by factual witnesses. The CAT in particular has previously reserved its position to interpret expert economic evidence in light of its own assessment of the case.
The High Court and CAT have broad discretion as to the rate of interest awarded, and this is often disputed between the parties. Interest may be awarded on a compound or simple basis but, again, this depends on the facts of each case.
For both individual and collective actions, the judge usually requires an expert to assist on the loss calculation. By its part, the experts in Colombia use different methodologies for these calculations considering the cause of damage and the market in which such damage took place. None of those methodologies are preferred but it depends of the expert report.
There is no precedent of umbrella effects being recognized in Colombia, until this date.
Regarding the interests, law provide that during the trial and procedure, there will not be interests, nevertheless, between the harmful event and the sentence, the interests will be equal to a yearly 6%.
Please consider that if the subject of the claim is a future damage, the compensation will be reduced in the 6% aforementioned.
Once the sentence has been issued and if the defendant does not pay the compensation, there will be default interest at 1.5 times the current bank interest (interés bancario corriente).
A plaintiff is only entitled to damages likely caused by the defendant’s antitrust violation. Thus, damages are calculated by determining what the plaintiff’s experience would have been ‘but for’ the antitrust violation, and then comparing that to its actual experience.
In some contexts, the measure of damages is typically the plaintiff’s lost profits. The majority of courts limit recovery to lost net profits. However, lost gross profits may be recovered on some occasions where the difference between gross and net profits is minimal. Where the plaintiff’s business is totally or partially destroyed, damages can be ascertained by the ‘going concern’ value of the plaintiff’s business.
‘Umbrella damages’ are not recognised in competition damages cases. Plaintiffs cannot recover damages for transactions with parties that are not part of a purported antitrust conspiracy. Indirect and ‘direct purchasers from competitors of defendant manufacturers [are] not entitled to sue on a theory that defendants' anticompetitive activity made it possible for their competitors to charge higher prices and thereby injure purchasers’ Mid-W Paper Products Co v Continental Group, Inc, 596 F2d 573 [3d Cir 1979].
Two prominent methodologies for proving damages that have been broadly accepted by the courts are the ‘before and after’ and ‘yardstick’ theories. The ‘before and after’ theory compares a plaintiff’s profits or the prices it paid during the period of violation with its profits earned or prices paid before the beginning of the violation period or after its termination. The ‘yardstick’ approach compares profits earned or prices paid by a plaintiff with the corresponding data from a firm or in a market unaffected by the violation.
Prejudgment interest is generally unavailable to private antitrust plaintiffs. Under Section 4(a) of the Clayton Act, however, the court may award simple interest on actual damages for the period beginning on the date of service of such person’s pleading setting forth a claim under the antitrust laws, and ending on the date of judgement, or any shorter period of time, if the court finds that the award of such interest is just given the circumstances. In ascertaining whether the award is just given the circumstances, the court considers three factors: (1) whether either party or its representative made motions or defenses so lacking in merit as to show that such party or representative acted intentionally for delay or otherwise acted in bad faith; (2) whether either party or its representative violated any provision providing sanctions for dilatory behaviour or providing for expeditious proceedings; and (3) whether either party or its representative engaged in conduct primarily for the purpose of delaying the litigation or increasing the cost thereof.
28 USC § 1961 governs the award of post-judgment interest in competition litigation. Post-judgment interest is calculated from the date of the judgment, including trebled damages, and is imposed at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment. Post-judgment interest is computed daily and compounded annually. The interest is calculated on attorneys’ fees and costs as well as on damages.