Last week, Bruno Augustin, Aaron Bradley and I attended the annual CDR Winter Competition Litigation Symposium. A number of speakers provided insight into a wide range of developments in the field, including recent abuse of dominance and cartel investigations and litigation, trends in enforcement, and debating the future of UK collective redress.
Bruno Augustin, partner at Haberman Ilett, spoke on a panel on the topic of expert evidence in multinational class action proceedings. Bruno was joined by David Wingfield of Fountain Court Chambers, John Cove of Shearman & Sterling, Peter Davis of Cornerstone Research, and Liam Colley of AlixPartners.
The panel debated a variety of issues, including how expert evidence should be handled in the light of the recent decision in the BritNed v ABB case. This involved discussing the relationship between economic theory and factual evidence as well as difficulties in modelling a robust counterfactual. The panel also provided insight into differences between the role of expert evidence in class actions in the UK and the US.
Bruno suggested that, in general, competition cases should not be treated differently to other cases, notwithstanding the economic factors at play. He felt that experts should not be a slave to a particular methodology, for instance always choosing to use a sophisticated regression analysis. Such an approach might not be appropriate in cases where there is a lack of data or where it is not possible to justify assumptions that feed into a model using the available facts.
In Bruno’s opinion, a case involving a single claimant often lends itself to looking closely at the factual evidence. For instance, in BritNed v ABB, the defendant’s expert produced a simple margin analysis in contrast to the complex model constructed by the claimant. There did not appear to be sufficient evidence contained within the negotiations between the parties to indicate an overcharge and the judge largely found in favour of the defendant.
Commenting on the initial decision in Merricks v Mastercard, Bruno also felt that there should be a degree of flexibility in the precision to which damages are required to be distributed between a class of claimants. He suggested that in the absence of such flexibility, the ‘opt-out’ collective action regime may not be fulfilling its policy objective of providing fair redress to consumers.