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U.S.-style antitrust class actions? Nein danke, non merci, gracias no...

Per the WSJ, Europe's moves toward expanding the scope of antitrust litigation are very much informed by a view of the U.S. experience as cautionary:

The European Union proposed rules that would make it easier for businesses and consumers to sue for price fixing and other forms of antitrust abuse, but the measures would fall short of U.S.-style class-action litigation. ...

Taking direction from a 2001 ruling by the EU's highest court, the European Commission has tried to construct a system that would let victims of anticompetitive behavior seek damages. But it has been something of a reluctant effort given deep reservations in Europe about litigation. ...

...the EU shied away from the most aggressive aspects of the U.S. system: Plaintiffs should be able to seek compensation for damages, the commission proposed, but only once over -- no triple damages. And while groups of plaintiffs can sue jointly, the European system should be opt-in, unlike U.S. class actions, where individuals are assumed to be members of a class unless they opt-out.

Having plaintiffs' lawyers bring cases representing broad classes is "not our cup of tea," said Neelie Kroes, the EU's antitrust chief. Mrs. Kroes also proposed allowing "qualified" organizations, like consumer groups, to sue -- but in practice few groups would have the resources to take on multiple cases at once.

Indeed, while proposing a system that would make it easier to sue, Mrs. Kroes appeared acutely concerned with not going far. In a news conference, she referred several times to worries over "excessive litigation" and said that to prevent "procedural abuses" courts should have firm control over discovery.

The paper, which attempts to harmonize the disparate approaches of the 27 EU nation members, is open for public comment through mid-July; no doubt U.S. plaintiff's-bar interests, which have sought to encourage the expansion of litigation across the Atlantic, will find ways to make their views known.

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.