Follow-on Action Research Articles

Enabling and Incentivizing Standalone Private Antitrust Actions in Hong Kong — Lessons from the United States

In 2012, Hong Kong passed its Competition Ordinance which provides a right of follow-on action, but no right of standalone action to private parties. Through reviewing the legislative history, this article found that such right is absent primarily because small and medium-sized enterprises (SMEs) worried that large companies would strategically file excessive, or even baseless, suits against them. The U.S., which has many private antitrust suits, is cited as an example to support this concerns. This article attempts to shed light on this matter by (1) identifying why there are so many private antitrust suits in the U.S., (2) rethinking whether the U.S. model is one that Hong Kong should avoid and (3) highlighting how the U.S. regime prevents baseless suits. After addressing these matters, this article articulates (1) why enabling a standalone right of action to private parties itself would not open the floodgates of antitrust litigations in Hong Kong, (2) why it might be harmful to Hong Kong if there are insufficient private antitrust suits, especially when baseless suits are expected and (3) whether Hong Kong is prepared to enable a standalone right of action while expecting frivolous and baseless suits.

Leveraging the Future with Foresight Analysis

ABSTRACTA broad array of Foresight Analysis techniques is available to help analysts and decision-makers anticipate the outcomes of current struggles in such places as Syria or North Korea or—over a longer time frame—to assess the impact of global climate change, trends in cyber warfare, new money laundering techniques, or the future of the Arctic. Business decision-makers as well as government policymakers can use Foresight Analysis to avoid surprise, map the future, mitigate threats, and identify new opportunities.The best way to ensure the success of a Foresight Analysis project is to be explicit about the purpose of the exercise, adopt a team process, involve a diverse group of participants, engage senior decision-makers directly in the process, and generate a follow-on action plan. Explicit criteria based on client needs are important for selecting which scenarios are most deserving of attention. The development and tracking of a robust set of indicators for each alternative future is also critical to the process. Although Foresight Analysis requires a serious investment of time up front, the payoff always justifies the investment—and the payoff can be measured in years.

The Disclosure of Leniency Statements and Other Evidence under Directive 2014/104/EU: An Undue Prominence of Public Enforcement?

Directive 2014/104/EU contains detailed provisions related to the disclosure of evidence in actions for damages before national courts that seek to strike a balance between a claimant’s right to access evidence in support of its private damages claim and the protection of leniency programmes, which are some of the main tools of public antitrust enforcement. Articles 5 to 8 of the Directive create a “microsystem” of the law of the evidences, which is highly specialised and based on the central role of the judge and on the principle that private enforcement must not compromise public enforcement. The Directive tackles the information asymmetry that characterises competition law litigation by acknowledging the right for a claimant “to obtain the disclosure of evidence relevant to their claim, without it being necessary for them to specify individual items of evidence”. However, the obtainment of the disclosure of evidence is circumscribed by a number of conditions and exceptions. The Directive creates three lists of documents that are characterised by a different level of protection: the black list, the grey list and the white list. After giving an overview of all these provisions, the article will focus on the disclosure of leniency statements and settlement submissions, by analysing the case law of the ECJ before and after the entry into force of the Directive. It will be found out that while the Court has always been cautious, by affirming that it is necessary to weigh up, on a case-by-case basis, the respective interests in favour of disclosure of such documents and those in favour of their protection, the European Legislator preferred to unconditionally protect the efficiency of leniency and settlement programmes to the detriment of parties that suffered a harm, which have to find any possible way to support their damage claim in a context in which the information asymmetry and the difficulty of the factual and economic analysis are evident. It seems that, with Article 6(6), the European Legislator did not succeed in its goal of making it easier for victims of antitrust violations to claim compensation from the offender, which is the general aim of the Directive. In fact, not having the possibility to have access to leniency statements or settlement submissions in stand-alone actions, it is highly difficult to prove that they suffered harm. Therefore, victims can only wait until the competition authority adopts a final infringement decision in order to start a probably successful follow-on action. Overall, all provisions on disclosure of documents contained in the Directive contribute to make a big step forward in the private enforcement sector, except for the provisions of Article 6(6), which could have probably been less rigid. In fact, while the rule on the right to obtain the disclosure of evidence, together with the provisions on disclosure of documents contained in the grey list and in the white list, strike a fair balance between public and private enforcement and facilitate victims of antitrust violations in bringing actions for damages, the same thing cannot be affirmed for provisions on disclosure of documents contained in the black list.

Competition law enforcement under informational asymmetry

Competition law enforcement, whether by public officials, private parties and consumers or the courts, has to resolve informational and resource asymmetries. Current EU competition law establishes an interface between government enforcement action and private litigation. For the EU Commission, informational asymmetries will be primarily addressed under positive comity agreements with other countries and its leniency programme. For private parties, the success of a stand-alone or follow-on action for damages critically depends on disclosure of documents. The Court of Justice of the European Union attempts to strike a balance between disclosure and the Commission’s preference for confidentiality. Nonetheless, the EU law concept of effectiveness and equivalence of competition law enforcement does not supersede national law rules on procedure or liability of private parties. The Court of Justice applies a negative harmonisation strategy towards national laws. Where appropriate, the paper will assess enforcement practice under U.S. law.

Effect of patient safety incident review andreflection in an extended morbidity andmortality meeting.

We modified the departmental mortality and morbidity (M&M) meetings to evaluate whether patient safety incident review as a part of this meeting was associated with reduced patient safety incidents. A pilot programme of peer review of patient safety incidents (PSI) supported by education relevant to that event and follow-on action plan was introduced as a part of an extended morbidity and mortality meeting in a university hospital orthopaedic department. The pilot programme was conducted over six months (January 2012-June 2012). This programme involved junior and senior doctors including consultants although multidisciplinary groups were invited to attend. We investigated PSI rate/1000 hospital admissions for trauma and elective surgery, which were collected prospectively and independently between Jan 2011 to June 2013. We noted if the incident was caused by a medical or a nursing error and compared PSI rates. Rates of PSI (33/1000) were 7.8 times higher in trauma cases (80.2/1000) than in elective admissions (11.2/1000). There was 18% reduction in trauma and 27% reduction in planned elective admissions. The rate increased after the pilot programme finished but there was still a 7% reduction compared to the pre-pilot period. This study found a significant reduction in the PSI rate for medical error but no change in the rate of nursing error. This continuous reflection, education and action process, where safety events are reviewed as a part of the extended morbidity and mortality meeting, is associated with reduction of patient safety incidents. We recommend that PSI reflection should be introduced in Mortality and Morbidity meetings with mandated attendance of the entire multidisciplinary health care team.

Coping with Complexity and Securing Justice: Through Multi-Party Litigation – Lessons from The Cat And JJB Sports

This article examines the draft UK Consumer Rights Bill, introduced into the UK Parliament in January 2014 as the Consumer Rights Bill 2013. It outlines its proposed reforms to the opt-in follow-on collective action that can be brought in the Competition Appeal Tribunal. In particular, it questions whether the proposed reforms will achieve the aim of furthering access to justice and compensatory damages for individuals who have suffered loss as a consequence of competition law breaches. It further questions whether the introduction of a statutory cy press mechanism to transfer any unallocated damages frustrates that aim.

Why not court? A study of follow-on actions in the UK

The Department for Business Innovation and Skills introduced a consultation process in April 2012 on ways to facilitate private actions in competition law in the UK. This article makes a timely contribution to this debate by considering the legislative and case-law developments over the past decade in relation to private enforcement of competition law in the UK. In particular, the article focuses on the follow-on action mechanism introduced by the Enterprise Act 2002 whereby damages may be sought by injured parties, relying on prior infringement decisions by the UK competition authorities or the European Commission, before the specialist Competition Appeal Tribunal (CAT). The article notes that there has been relatively little litigation under this mechanism and examines the rationale for continued resort to the traditional High Court litigation route. In addition, the minimal take-up of the consumer representative follow-on action before the CAT is addressed. The article then draws on research undertaken by the author in relation to competition infringement decisions by the UK Office of Fair Trading (soon to be replaced by the Competition and Markets Authority) between 2005 and 2009 and outlines the results of a questionnaire study seeking to understand why aggrieved parties did not seek redress in a follow-on action before the courts or CAT.