June 01, 2013

Plaintiffs Attorneys Say EU Antitrust Litigation Plan Falls Short

In a June 12, 2013 Law360 article which highlighted top antitrust plaintiffs attorneys who hailed the European Commission's new plan to promote private antitrust damages actions as a step in the right direction, Cohen Milstein's Daniel A. Small was quoted, saying:

"This is a big step in the right direction for European countries. Some of it of course will depend on how the guidance actually gets implemented, particularly the recommendation on collective actions, but in general assuming this is implemented faithfully I think it will make a big difference for private damages claims by individual plaintiffs because they do now have a lot of the features I think are important for private enforcement.

"It matches U.S. law on most issues other than they leave out treble damages, which could lead to under-deterrence … but it still will encourage more private damages litigation in Europe than has existed. A little more disappointing in my view is the recommendation on collective actions because that … actively discourages contingency fee arrangements. I think it's going to make it difficult in many possible collective actions for a lawyer to take on that kind of risk and that kind of effort if they cannot get contingency fees.

"The other feature I think will be very problematic is the requirement that the class opt in. You're just going to get, through inertia alone, very few of potential class members opting in. Those two issues right there I think will make it tough for collective actions to be a real strong mechanism in Europe.

"What I would anticipate is seeing more litigation by large companies or groups of medium to larger companies who can come together to litigate the case jointly, that's where you will see a big difference in the amount of enforcement."