In what circumstances, if any, can a competition damages claim be disposed of (in whole or in part) without a full trial?

Competition Litigation

Belgium Small Flag Belgium

Competition damages claims can be disposed of without a full trial only through a settlement or a waiver of the proceedings by the claimant. There is no mechanism that would allow for a summary dismissal of the case.

Brazil Small Flag Brazil

Private competition claims may be settled through private-held negotiation. Moreover, it is possible for a defendant to obtain a summary judgment if the claimant lacks standing or the claim is defective. Actions filed by the Public Prosecution (or any Public Entity) may not be settled in matters involving public interest.

China Small Flag China

  1. Only in very limited circumstances will the PRC court dispose of a competition damage claim without a full trial. According to the SPC CPL Interpretation, the court may dismiss the lawsuit if it finds that the requirements for instituting a civil lawsuit are not satisfied, or that they fall under any of the circumstances specified in Art. 124 of the CPL (e.g., a lawsuit within the scope of administrative actions or the parties have reached a written agreement to submit their dispute to an arbitral organ for arbitration).
  2. In addition, the court may dispose of the competition damages claims if the plaintiff and the defendant reach a settlement. Under such circumstance, the court can issue the mediation ruling upon the request of litigants without a full trial, provided that the terms and conditions of the settlement are not in violation of the applicable laws and regulations.

Cyprus Small Flag Cyprus

Private claims for anti-competitive practices before the District Courts can be resolved with a settlement agreement. According to the Civil Procedure Rules the claimant may at any time before or after the receipt of the defendant’s statement of defence and before taking any step in the proceedings, discontinue wholly or partly its claim against all or any of the defendants, without leave. If the above conditions are met, the discontinuance of the claim is subject to judicial leave which is almost invariably granted.

Egypt Small Flag Egypt

In the context of criminal litigation whereby ECA has discovered offences that are sanctioned under ECL or when any interested person notifies ECA of potential anti-competitive or monopolistic practices, ECA may upon acceptance of the majority of its board members, accept reconciliation with parties in breach. The reconciliation may be done:

  • Prior the initiation of the criminal action by the Public Prosecution. The reconciliation sum shall not exceed the maximum limit of the penalty for such crime.
  • After the initiation of the criminal action by the Public Prosecution, and before a final judgment is rendered. The reconciliation sum shall not be less than three times the minimum limit of the fine for such crime, and not exceeding half of its maximum limit.

In the abovementioned cases, the competition damages claim are disposed of without a full trial.

France Small Flag France

Parties may raise procedural objections (e.g. lack of jurisdiction, inadmissibility or procedural irregularity) before their defence on the merits. A preliminary hearing on these issues can be requested before arguments on the merits are examined, which may allow those claims to be disposed of at a preliminary stage.

However, the court may decide that the procedural issues and the arguments on the merits of the case will be examined together.

Germany Small Flag Germany

A full trial can be avoided if the parties enter into a settlement agreement at an early stage of the proceedings. Pursuant to section 278 para 1 ZPO, the court is to promote parties’ efforts to reach a settlement. In addition, a full trial on the merits is not required if the claim is dismissed for ‘technical reasons’ (eg, lack of jurisdiction, the claims being statute-barred, the set-up of a litigation vehicle being inadmissible) or the claimant withdraws its claim.

Hong Kong Small Flag Hong Kong

Competition damages claims can be readily disposed of without a full trial and litigation is generally considered as a measure of last resort. Alternative dispute resolution methods in civil proceedings, such as mediation and without prejudice discussions, can be used by the parties in competition damages actions.

The Competition Tribunal particularly encourages parties to competition damages claims to settle their disputes through mediation in lieu of a full trial. By adopting Practice Direction 31 (Mediation) of the High Court, the Competition Tribunal requires that in cases where all the parties are legally represented, solicitors acting respectively for the parties are required by the Competition Tribunal to file a mediation certificate before trial. That certificate requires parties to indicate to the other party whether it is willing to attempt mediation with a view to settling the dispute, and if not why. Refusal to attempt mediation may entail cost consequences. Trial may proceed only if mediation fails or if a party refuses to attempt mediation.

Israel Small Flag Israel

The grounds according to which a claim can be disposed are identical in relation to any civil claim, including a claim based on violation of the competition laws. Circumstances such as existing verdict, period limitation, unreasonable delay in filing the claim, lack of good faith of the plaintiff or misuse of legal proceedings, lack of rivalry between the parties and lack of jurisdiction. In addition, the court may also dispose the claim for any reason, according to which it believes that the claim should be dismissed in the first place.

In cases of class actions, there are additional arguments for disposal, as detailed above (see question 11), which are filed in the preliminary stage, in the motion to certify the claim as a class action.

Japan Small Flag Japan

In Japan, there is no U.S.-style summary judgment. If an action was not filed in accordance with the law (for example, the party does not have standing or the action violates the prohibition of duplicate actions) and such defect cannot be corrected, the court may render a decision to dismiss the action without trying the merits of the case.

In addition, before the stage of examination of witnesses, courts often explore the possibility of settlement by the parties. Also, courts may issue a default judgment if the defendant fails to appear.

The Netherlands Small Flag The Netherlands

If parties decide to settle. The option of a pre-procedural hearing to i.a. discuss a settlement has been mentioned above under 3. During the trial, the court will also test whether there is an appetite for a settlement. In the event there are multiple defendants which are jointly and severally liable vis-à-vis the claimant, it is possible pursuant to Dutch law to reduce the risk of recourse by non-settling defendants on the settling defendant, by inserting in the settlement agreement a provision pursuant to which the claimant will need to reduce the claim on the other defendants with an amount equal to the settling defendant’s contribution to the damages suffered as a consequence of the cartel. The judge can also propose mediation to the parties at all stages of the procedure.

Philippines Small Flag Philippines

Based on general rules involving civil cases, a competition damages claim may be disposed of without a full trial in the following circumstances:

(a) If the defendant does not file an answer to the complaint, the plaintiff may move that he be declared in default. The court will proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the plaintiff to submit evidence.[40]

(b) A plaintiff may file a motion for judgment on the pleadings, if the answer fails to tender an issue, or otherwise admits the material allegations of the complaint.[41]

(c) A plaintiff may file a motion for summary judgment. Summary judgment is appropriate when there are no genuine issues of fact which call for the presentation of evidence in a full-blown trial. A "genuine issue" is an issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim. When the facts as pleaded appear uncontested or undisputed, then there is no real or genuine issue or question as to the facts, and summary judgment is called for."[42]

A mandatory mediation procedure, consisting of mediation and judicial dispute resolution, is incorporated into civil actions before the RTC, and in the course of the pre-trial stage.[43] This may help the parties arrive at an amicable settlement even before trial commences.

[40] - Rules of Court, Rule 9, Section 3.
[41] - Rules of Court, Rule 34.
[42] - Philippine Bank of Communications v. Sps. Go, GR No. 175514, 14 February 2011
[43] - Administrative Matter No. 11-1-6-SC-PHILJA.

Poland Small Flag Poland

As a rule, as long as a competition damage claim is admissible and all the procedural requirements set out in the Polish procedure are met, the court should hear such case on the merits and, with some exceptions, is not allowed to dismissed the case without a full trial. One of the exceptions is a default judgment that could be issued if the defendant fails to appear at trial or he or she appear but takes no active part in the trial. In theory the Polish court could also hear a case in camera if the it considers, after the parties have filed pleadings and documents, having regard to all arguments and evidence, that a trial is not necessary. However such resolution seems highly unlikely in regard to competition damage claims, which would usually entail very complex evidentiary proceedings.

Apart from the above, in certain situations the Polish court would reject or return a statement of claim. For instance, the court would reject a statement of claim, without going into trial, if an action is inadmissible or there is a lack of jurisdiction of the court over the claim. Also, the court would return the statement of claim if the claimant, fails to pay the applicable court fee in time or fails to comply with the formal requirements of the pleading.

Portugal Small Flag Portugal

Parties may agree on an out-of-court settlement at any time. When parties agree to start negotiations that may lead to settlement, the court may stay the proceedings regarding those parties for up to a year. The settlement that is negotiated and agreed by the parties is usually subject to homologation by the court.

Argentina Small Flag Argentina

A defendant can apply to "strike out" all or part of a competition damages claim in order to dispose it before a full trial. The strike-out implies the recognition of the infraction.

In cases of a partial strike-out, the court determines whether or not it is possible to continue the remaining part of the action.

There is a lack of precedent in private antitrust actions, so a trend cannot be established.

Sweden Small Flag Sweden

A competition damages claim can be disposed of if the parties settle and the claimant withdraws its case. The settlement can also, at the parties' request, be established in an enforceable judgment.

Turkey Small Flag Turkey

As in the case of any other tort action, a competition damages claim may be disposed of without a full trial if the parties choose to settle. The parties can choose to settle a claim at any stage of the trial proceedings or have an out-of-court settlement before litigation starts to avoid a trial altogether.

Australia Small Flag Australia

Parties to a competition damages claim can reach a settlement of some or all of the claims in the ordinary course before trial.

In proceedings with multiple defendants, a claimant may settle with one or more individual defendants, while the remaining defendants continue to defend the action. In those circumstances, the competition damages claim may be disposed of in part only and the trial will proceed with the remaining defendants.

A claimant can also seek to dispose of a competition damages claim (in whole or in part) by an application:

  • for default judgment, where the defendant has not entered an appearance;
  • for summary judgment, if the defendant has no reasonable prospect of successfully defending the proceeding or part of the proceeding; or
  • to strike out the proceeding, where the pleading does not disclose a reasonable cause of action.

The claimant may also discontinue (in whole or in part) their claim for competition damages. A class action can only be discontinued with the leave of the Federal Court.

Canada Small Flag Canada

It is exceedingly rare for a competition class action to proceed to a full trial. Most cases terminate following the court’s decision on whether to certify the case as a class action. Cases that get certified as class actions most often settle. Where certification is denied, the claims seldom proceed on an individual basis.

In addition, the procedural rules in each of the provinces and in the Federal Court provide for preliminary attacks on pleadings on the basis that they do not disclose a reasonable cause of action or are frivolous and vexatious. These preliminary motions generally occur prior to certification.

Finally, there are summary judgment procedures available in all provincial superior courts and in the Federal Court. Those procedures allow the court to dismiss claims or grant judgment in cases in which the written evidentiary record is sufficiently clear that no genuine issue exists that would require a trial.

Italy Small Flag Italy

Besides alternative dispute resolution instruments available to the parties (e.g. arbitration, mediation, assisted negotiation, etc.) and private out-of-court settlements, in no other circumstance damages can be disposed of.

Romania Small Flag Romania

There are various methods whereby a claim may be disposed of without undergoing a full trial: (i) court or out of court settlement, (ii) waiver of the claim, or (iii) waiver of the substantive right itself.

Settlement. Following a consensual settlement, the claim of the settling injured party is reduced by the settling co-infringer's share of the harm that the infringement of competition law inflicted upon the injured party. Any remaining claim of the settling injured party shall be brought only against non-settling co-infringers. Non-settling co-infringers shall not be permitted to recover contribution for the remaining claim from the settling co-infringer.

By way of exception, where the non-settling co-infringers are unable to pay the damages corresponding to the remaining claim, the settling injured party may bring the remaining claim against the settling co-infringer. However, the applicability of such exception may be expressly excluded via the consensual settlement.

Waiver of the claim/ the substantive right. Additionally, according to the Romanian Civil Procedure Code, a plaintiff may also:

(i) waive the judgement by withdrawing its statement of claim: in such case, the trial ends without a ruling on the merits, but – within the limitation period – an identical claim can be filed; if made on or after the first hearing, such waiver is also subject to the consent of the defendant; or

(ii) waive the substantive right altogether: the trial ends by a ruling rejecting the claim; such waiver is not subject to the consent of the defendant.

United Kingdom Small Flag United Kingdom

The most common way for a competition damages claim to be resolved without a trial is by means of a settlement between the parties.

In the High Court, there are two kinds of application which defendants can use to dispose of claims (wholly or in part) without a full trial: summary judgment and strike-out.

Summary judgment may be given where the claim has no real prospect of success and where there is no other reason to go to trial. “Real” prospect of success does not mean that the claim will probably succeed at trial; rather, it needs to be a “real” prospect of success as opposed to “fanciful”.

A claim may be struck out in four principal circumstances: (i) where the statement of case discloses no reasonable grounds for bringing or defending the claim; (ii) where it amounts to an abuse of process (e.g. if judgment has already been handed down on the same dispute); (iii) where it is vexatious, scurrilous or obviously ill-founded; or (iv) where the claimant has failed to comply with a rule, practice direction or court order.

The CAT has broadly similar powers of strike-out and summary judgment under the CAT Rules, as the CAT itself has noted (see Wolesley UK Ltd & Ors v Fiat Chrysler & Ors [2019] CAT12).

Colombia Small Flag Colombia

In both individual and collective actions, a damages claim can be disposed through one of the following mechanisms:

  • Settlement: The parties of a claim can settle the dispute at any time before the sentence. The settlement can be reached during the procedure (before the judge), or directly.
  • Withdrawal: The plaintiff might withdraw the claim at any time before the sentence. This withdrawal is (i) unilateral, (ii) unconditional, (iii) entails the withdrawal to all the claims of the lawsuit, and (iv) the decision that declares the withdrawal is comparable to an acquittal.

United States Small Flag United States

There are two primary mechanisms to dispose of civil damages claims, including competition damages claims, without a full trial: (i) a motion to dismiss; and (ii) a motion for summary judgment.

Motion to Dismiss

In federal cases, Rule 12 of the Federal Rules of Civil Procedure provides the standard for motions to dismiss. Claims can be dismissed on procedural grounds – eg, lack of personal or subject matter jurisdiction and insufficient service of process [Fed R Civ P 12(b)] – or on substantive grounds, for failing ‘to state a claim upon which relief can be granted.’ Fed R Civ P 12(b)(6). In other words, under Rule 12(b)(6), if the facts the plaintiff has alleged are such that, even assuming their truth, they do not satisfy the elements of the law(s) on which the plaintiff has relied, then it is appropriate for a judge to order dismissal of such claims.

In the context of antitrust claims, specifically, the case of Twombly is particularly informative. 550 US at 544. It stands for the proposition that a mere ‘allegation of parallel conduct’ is insufficient for a conspiracy claim to withstand a 12(b)(6) motion. Id. at 557. After Twombly, plaintiffs must show in their pleadings that the surrounding ‘context’ could lead one to reasonably believe that the ‘parallel conduct’ is the result of an agreement to so act. Id. Importantly, even though parallel conduct alone cannot shield a plaintiff from a motion to dismiss, if it is alleged in conjunction with ‘plus factors’ that are probative of an underlying agreement as opposed to independently-made rational decisions, a court will be more likely to reject a motion to dismiss. See, eg, In re Flat Glass Antitrust Litigation, 385 F3d 350, 360 [3d Cir 2004]. Such ‘plus factors’ include, but are not limited to, ‘(1) evidence that the defendant had a motive to enter into a price fixing conspiracy; (2) evidence that the defendant acted contrary to its interests; and (3) “evidence implying a traditional conspiracy.”’ Id. (quoting Petruzzi’s IGA Supermarkets, Inc v Darling-Del Co, 998 F2d 1224, 1244 [3d Cir 1993]).

Motion for Summary Judgment

The standard for summary judgment in federal cases is set forth in Rule 56 of the Federal Rules of Civil Procedure, which provides that it is appropriate for a court to ‘grant summary judgment [ie, rule on the merits of the case] if the movant shows that there is no genuine dispute as to any material fact.’ Fed R Civ P 56. It is, arguably, more difficult for a plaintiff to survive a motion for summary judgment than a motion to dismiss, as the court will not presume the veracity of the claims made in his or her pleadings. Rather, in evaluating a motion for summary judgment, a judge will look not only at the pleadings, but will also require that the plaintiff provide evidence that supports the allegations made therein. Thus, although the movant has the burden of proof to ‘show that there is no genuine dispute as to any material fact,’ the plaintiff still must proffer evidence that such a dispute indeed exists. Id.

For example, in a conspiracy case, to survive a motion for summary judgment, the plaintiff must proffer ‘evidence “that tends to exclude the possibility” that the alleged conspirators acted independently.’ Matsushita Electric Industrial Co v Zenith Radio Corp, 475 US 574, 588 [1986] (quoting Monsanto Co v Spray-Rite Service Corp, 465 US 752, 764 [1984]). Much more is thus required of a plaintiff defending against a motion for summary judgment than a motion to dismiss wherein it ‘need only allege “enough factual matter (taken as true) to suggest that an agreement was made.”’ Starr v Sony BMG Music Entertainment, 592 F3d 314, 321 [2d Cir 2010] [quoting Twombly, 550 US at 556].

Finally, practically speaking, a motion for summary judgment is different from a motion to dismiss in that summary judgment motions typically are not brought in competition cases until discovery has concluded, which is often a lengthy and expensive process.

Updated: August 7, 2019