Picking up the Tab: Funding and Costs from the Claimant’s Perspective
Funding the costs of a claim plays a crucial role in determining whether and where to pursue claims for damages arising from a competition law infringement. Today, a variety of different funding models are available across the globe that give claimants the opportunity to pick a model that, inter alia, aligns to their tolerance of risk. Competition litigation can be lengthy and cost intensive while the outcome remains uncertain. Some claims can last for more than a decade. Thus, companies need to choose carefully between different funding models.
This chapter sets out the main available funding options for claimants to pursue their claims and lists the associated benefits, followed by a checklist for claimants to follow when deciding how best to pursue their claims. The choice of forum is closely linked to the choice of funding and will be discussed in the context of this checklist.
Different funding models and some of their benefits
There are a variety of different models of funding a competition law damages claim. Broadly, a claimant can self-fund the litigation, assign the claims to a litigation vehicle bundling claims, bring in a litigation funder, engage a law firm working on a contingency fee basis or join (or remain in) a class action. Each of the above has certain benefits and downsides.
The obvious option is to self-fund an (individual) claim. This allows the claimant to maintain maximum control of their claim, the litigation process, strategy and risk. This model gives the claimant the complete freedom to begin, stall and end proceedings, and ultimately to conduct and conclude settlement discussions with defendants. The claimant has the discretion to choose external legal counsel, and economic and data experts. Pursuing a self-funded damages claim can require deep pockets, the long-term backing of the board and financial department, and the necessary know-how in the company to pursue such claims – especially when funds need to be specifically set aside to accommodate the litigation risks. Substantial costs are payable immediately and have a negative impact on the balance sheet. Potential earnings can often be booked only years or even decades later. In some jurisdictions, the opponent’s costs must be compensated by the losing party (the loser pays principle). Where available, an after-the-event insurance (ATE) can minimise or take on the full risk. However, such insurance comes at a price: the premium for full protection can amount to up to half the risk, depending on when the insurance premium is paid.
Companies with large and diversified purchasing volumes are often victims of several cartel infringements. For them, it can make sense to establish a self-funding mechanism, where proceeds from successfully claimed damages fund existing or emerging new claims for damages. Thus, a claimant may only need a one-time, up-front, investment in a damages claim that benefits other damages claims. This model will require close cooperation and coordination with the company’s financial department as solid financial planning together with a risk assessment is required. Likewise, the company will need to ensure that incoming funds are allocated to the affected group companies or units after a deduction of costs. Depending on the size of the company and the number of cases, even a dedicated unit responsible for enforcing the claims can be funded via the self-funding mechanism.
Even when self-funding a claim, the claimant can enforce it together with another party (joinder of parties). This has the benefit of sharing at least some of the costs with other claimant (e.g., for lawyers and economic experts) and may to a certain extent strengthen the negotiating position vis-à-vis the cartelists. If the parties jointly engage an economic expert, this may also increase the data available for conducting a robust economic damages quantification. However, parties always face the risk that the court splits the proceedings. Moreover, to achieve these benefits, the effort to coordinate between the joined parties is quite substantial.
Self-funding a claim offers several advantages, which include the following:
- the claimant has maximum control of the claim, litigation process, strategy and risk; and
- the claimant will not have to share a large sum of the recovery if successful with a litigation funder or law firm working on a contingency fee basis.
The disadvantages of self-funding a claim include the following:
- there is substantial risk if there is a negative judgment;
- the costs appear on the balance sheet; and
- the claimant will have to take the expected costs of the case into account and may have to set aside funds.
Bundling claims through a litigation vehicle
Assigning claims to a litigation vehicle helps to shift costs for litigation away from the claimant’s balance sheet. Claims are assigned to a litigation vehicle through a claims purchase agreement where the assignee usually pays a very low or zero purchase price for the claim. If the assignee successfully enforces the claim, the assignor participates in the funds received from the defendants. Cartel Damage Claims (CDC) made this model prominent in Europe. This model benefits the assignee by completely outsourcing the entire process to the litigation vehicle. Assignors will only need to conclude assignment agreements (within their company group and with the claims vehicle) as well as provide documentation to substantiate the claim, such as purchase records and contracts. The litigation vehicle manages the entire process. This includes hiring and supervising external advisers, such as economic consultants, data specialists and legal counsel.
Besides the ‘classic’ litigation vehicle model, such as CDC, companies like Deutsche Bahn have set up their own claims vehicles to enforce their own damages claims and bundle them with claims from other cartel victims for specific cases. The litigation vehicle asserts the claims assigned by the assignor together with the claims of other aggrieved parties against the cartel members in a bundled form (both in and out of court). The company assumes all work and costs required in connection with the enforcement of the claims, including the selection, control and coordination of lawyers, economists and other service providers.
For out-of-court settlements or judgments, the company usually agrees a lump-sum expense allowance with the assignor. This is intended to cover costs and expenses incurred and to serve as compensation for the risks assumed by the company in pursuing the bundled claims.
In the US, a claimant may assign its antitrust claims to another party, including an entity specifically set up to bring claims, as well. However, the more common assignment scenario in the US is a direct purchaser assigning its claims to an indirect purchaser so that the indirect purchaser can bring federal antitrust claims covering all damages flowing from the cartel. Indirect purchasers are prohibited from suing for damages under federal US law (although they can sue under many state laws). It is the indirect purchaser who often has the greatest incentive to sue because it often absorbs most of the overcharge while direct purchasers sometimes may not have the experience, the motivation or the wherewithal to prosecute their claims. The assignments of antitrust claims must be specific and clearly indicate that the entire claim is being assigned.
This assignment model offers the assignor the following advantages:
- the bundling of claims generates greater clout by strengthening the negotiating position in relation to the cartel members;
- efficiencies are also generated by pooling resources and data, important for robust economic damages quantification;
- the assignor bears no cost risk, since all extra-judicial and judicial costs are borne and pre-financed solely by the company-owned claims vehicle, and thus the assignor has no risk of having to reimburse costs even in the event of losing in court;
- the (potential) costs do not appear on the assignor’s balance sheet;
- the business relationship with the cartelists is not as affected by litigation proceedings as it would be through a self-funded claim;
- there is potentially a wider choice of forum to bring the claim where the group consists of a number of multinationals; and
- courts in several Member States have generally recognised this funding model.
There are the following disadvantages for the assignor:
- the assignor generally gives away control over its claim;
- it may be more difficult to settle a large claim where the individual claims come from hundreds of assignors; and
- in the US (at least) the assignor may still be exposed to discovery, including depositions, as a relevant third party to the litigation.
Litigation funder funds individual claim or group claim
Another way to shift litigation costs away from the claimant’s balance sheet is the use of litigation funding. Litigation funders provide the funds to pursue a cartel damages claim as a service and receive a share in the proceeds (i.e., out-of-court settlements or court awarded damages). Depending on the funding agreement, the funder will typically cover the adverse cost risk and, therefore, be liable for the cost reimbursement of the opponent.
Litigation funding is available in the major jurisdictions – consisting of some local funders and the large international funders, such as IMF Bentham and Burford Capital. While the former often take on cases with minimum claim values of around €50,000 to €100,000, the latter focus on high-value cases.
Generally, the funder will review the claim and will likely involve its own legal counsel to evaluate the prospects of success. In some jurisdictions, funding agreements are classified as loan agreements, insurance contracts, purchases or even partnership agreements. It is not uncommon that the claim is assigned to the funder as security, blurring the distinction with the assignment models discussed above.
The regulatory framework also varies across jurisdictions. While some jurisdictions have established rules for legal funding; for example, in the UK there is a voluntary code of conduct for litigation funders, in other jurisdictions there are fewer regulations for this type of funding model. In some jurisdictions, there is debate on whether the fact that a claim is funded by a third party needs to be disclosed. In the US, for example, there are no mandatory rules for disclosure in federal court of third-party funding agreements. However, there is a proposal for a bill in Congress pushing for mandatory disclosure, the ‘Litigation Funding Transparency Act of 2019’. At the state level, Wisconsin is the first US state to introduce mandatory disclosure rules, while in a number of other states legislation is still pending. Moreover, there are a number of federal circuit courts and federal district courts requiring disclosure of third-party funding.
Funding agreements typically place strict responsibilities on the funded party, including:
- to disclose to the funder all relevant facts in relation to the claim;
- to lead and advance proceedings;
- to keep the funder informed of any developments in the case (which is usually done by lifting the veil of confidentiality from the legal counsel in relation to the funder);
- to obtain consent from the funder before incurring costs; and
- to settle the claim only with the funder’s consent.
Generally, funding agreements provide for termination rights for the funder. As a rule, termination rights will be triggered if the funded party fails to comply with its responsibilities, but in some cases it will also be triggered if the chances of successfully pursuing the claims changes substantially. In cases of termination not based on a failure of the funded party, the funder is generally liable for the costs up to the point of termination. In that case, the funded party can then continue the claim and, if successful, reimburses the costs incurred by the funder, but is usually not liable to pay a success fee.
A funded party may typically terminate an agreement if it does not agree to a collective settlement offer in a group claim; it can then continue at its own expense. The funded party will nevertheless have to reimburse the costs incurred so far and pay the funder a share of any recovery. Beyond that, there are typically very few circumstances where a funded party can terminate a funding agreement without having to pay a share in the proceeds.
Nevertheless, the funding model offers the funded party several advantages:
- the funded party (if so agreed) bears no cost risk, since all extra-judicial and judicial costs are borne and pre-financed by the funder (at least until the appeal-stage);
- costs do not show up on the balance sheet;
- external legal counsel and economic advisers can be chosen freely (although in reality, the funder can veto the decision or terminate the agreement);
- the joint enforcement of claims in a group may generate greater clout by strengthening the negotiating position in relation to the cartel members; and
- in the case of a joinder of claims or a group claim, the premium may be lowered on account of the significant savings in fees for external counsel and experts.
The funding model also has several disadvantages:
- the funded party needs to work together with the funder in the management of the claims process and loses flexibility;
- the contract with the funder can be very technical and places many responsibilities on the funded party;
- the relationship between the funded party and the funder appears fragile, given the need for contractual regulation of a plethora of hypothetical scenarios; and
- the premium may not always reflect the risk a funder takes on in a follow-on case.
Law firm works on contingency fee model
While in many jurisdictions local professional rules prohibit lawyers from working on a contingency fee basis, there are prominent examples, especially in common law countries such as the UK and the US, where contingency fee models are allowed. As with litigation funding, for the claimant, a ‘no win, no fee’ basis mitigates the cost risk of losing a case. Some law firms even extend this model into what is factually an insurance to cover adverse cost risks. The law firm may then determine itself whether it wants to hedge its risk by using an additional source of litigation funding. The claimant, however, will typically just deal with the law firm. In the latter case, the contingency fee arrangement, at least in the US, does not need to be disclosed in court.
A typical contractual clause in engagement letters containing a contingency fee arrangement concerns the amount and the calculation of a contingency fee to be paid in the event of a recovery (a judgment, a settlement or other form of compromise). Other typical provisions stipulate that no settlement shall be concluded by the claimant without prior consultation with the law firm and no settlement may be concluded without the claimant’s consent. Since the law firm assumes the litigation risks, the contract will usually include clauses similar to those in a contract with a litigation funder with respect to the contingency work, such as termination rights for the law firm, definition of the scope of work (covers no appeal or re-trial).
The contingency fee model offers the client several advantages:
- the client (if so agreed) bears no cost risk, since all extra-judicial and judicial costs are borne and pre-financed by the law firm (at least until the appeal-stage);
- litigation costs are shifted from the client’s balance sheet;
- the client deals only with the law firm and has no additional contractual relationship with a litigation funder; and
- engagement letters containing contingency fee arrangements are usually less technical, less intrusive, and have fewer termination grounds compared with funding agreements.
Disadvantages of the contingency model include:
- the client’s and the law firm’s target settlement range may differ; and
- it can be difficult for the client to exercise control over billing.
Enforcement via class action membership
Depending on the jurisdiction, companies may also have the opportunity to join a class action. Several countries implemented collective redress schemes decades ago. In common law jurisdictions, class actions play an important role. A class action is a lawsuit in which one or more representative plaintiffs bring a lawsuit on their behalf and on behalf of other similarly situated natural or legal persons (i.e., a class) who have similar claims against the defendants.
Using the US terminology, in the first step, the representative plaintiff and its legal counsel will usually have to seek certification of the class. Only once a class is certified can the case move forward. Certification requirements differ according to jurisdiction. While US courts appear to have become stricter in comparison to its former practice, the UK class action system is just emerging. The test for certification in the UK is currently under review by the Supreme Court in the Merricks v. MasterCard case. The representative plaintiffs, the court and counsel appointed to represent the class (class counsel) are all responsible to ensure that the interests of all class members are adequately represented.
Class members themselves do not have to bear legal fees or litigation costs. Such costs are paid through the court-awarded judgment amount or the settlement fund, while costs must be approved by the competent court. If there is no form of recovery, class counsel is not compensated for their work.
Depending on the type of class action, be it an opt-in or an opt-out model (or some hybrid form), different participation of class members is required. In an opt-out class action, a claimant does not need to take any immediate action unless they want to be excluded from the class to pursue their claims individually.
Only when a representative plaintiff enters into a settlement with a defendant on behalf of the class does the work for each class member begin. Members of the settlement class will be given notice of the settlement. They receive an opportunity to be heard with respect to the settlement in a fairness hearing. The court will determine, among other things, if the settlement is fair, reasonable, and adequate. Class members will typically then be asked to quantify their purchasing volume of the cartelised product or service to a claims administrator who will then calculate each class member’s share of the proceeds and distribute them. In some jurisdictions, it is good practice at this point – especially if there is more than one settlement round – for class members to be given the opportunity to opt-out of individual settlement rounds.
Class members are not visible to the defendants and third parties, and participation in the settlement proceeds does not have any repercussions on the business relationship with the cartelists.
Advantages of the class action model include:
- class members bear no cost risk at all, since all extrajudicial and judicial costs are borne and pre-financed by class counsel (and claims administrator);
- class members do not become visible to the cartelists (and the general public);
- class members’ business relationship with the cartelists remain unaffected by the litigation; and
- the time and effort required for enforcing a damages claim is reduced to a minimum.
- class settlement proceeds are in general lower than the settlement sum in individual settlements;
- in some jurisdictions class members will be able to opt-out only at the beginning of the proceedings prior to any settlement reached, but at that point the class member does not know whether the settlement amount is sufficient or if an individual claim is required to reach the expected recovery; and
- the potential misalignment of incentives between large direct purchaser claimants and class counsel, as the latter is mainly interested in maximising recovery for the class and has no business relationship with the cartelists, whereas direct purchasers want as many options in the supply chain as possible and rely on a competitive environment, and large class recoveries, which may even push some defendants into bankruptcy, may be detrimental for direct purchasers.
How does a company choose which model is most beneficial?
Choosing the right funding model for a claim is no easy task for a company, and there are several determining factors that need to be considered. The following section provides a short checklist of the type of questions that a claimant needs to ask in making its decision. The determination of the right model comes down to expected benefits, disadvantages and costs, and is part of the informed decision about whether and how to pursue competition law damages claims. Such decisions form an integral part of management’s responsibilities.
What is the size and scope of the claim?
Any claimant needs to consider the nature of the cartel with respect to the cartelised product together with its commercial relationship with any of the cartel members. A company may have purchased the cartelised product from a non-cartelist (‘umbrella claims’) or may have a sizeable indirect procurement volume of cartelised goods. This may affect the level of risk associated with pursuing the claims.
The initial investigation will depend on data availability (and thus ultimately often on document retention policies) in the claimants’ company. Once the data is obtained, the harm needs to be roughly quantified. As a rule of thumb, the greater the value of the claim, the more it makes sense to pursue the claim independently. Depending on the capabilities of the in-house team managing the claim, it may make sense to assign a large claim to a third-party that is bundling claims, especially one pursuing its own claims as well. Managing a sizeable claim requires expertise and personnel that the claimant needs to have in the short to medium term. Where a company has the capabilities to manage a high-volume (potentially multi-jurisdictional) case in-house, it can be sensible to run the case alone. High-volume cases will usually attract external funding and (where allowed) law firms offering to work on a contingency basis.
What are the chances of success?
Initially, rating a case can prove difficult. Some companies have developed tools grouping the cases they monitor into different categories by considering, inter alia, whether the claim is direct or indirect (or umbrella), follow-on or stand-alone (or hybrid), etc. Beyond a very first rough rating, potential legal challenges need also to be kept in mind when looking at the strength of a claim. For this, a number of points are important, including:
- applicable law;
- quantification of harm; and
- pass-on (where available).
Where obvious legal challenges exist in a given jurisdiction, it may be more difficult to receive third-party funding.
Where to pursue damages (choice of forum)?
The choice of forum may directly decide on the choice of funding model available, as the claimant will need to ask whether bundling, litigation funding or contingency fee arrangements are allowed in the respective jurisdiction, and whether ATE insurance is available or if a class action regime exists.
For the choice of forum, costs are always an important aspect from the perspective of a claimant, as are, inter alia, disclosure, available damages, limitation and suspension periods, and the experience of the competent national courts in dealing with cartel damages litigation.
Costs of bringing a claim?
The overall cost exposure in a worst-case scenario needs to be considered for each available jurisdiction. This includes an estimate of the potential internal costs, costs for external legal counsel, economists and other experts as well as court fees. The costs when losing the case also need to be considered. Costs may rise with a high number of infringers and potential third-party interventions.
Moreover, pre-trial discovery or disclosure, as known in the United States and the United Kingdom, can cause extensive costs and bind claimants’ internal resources. Under such regimes, claimants will often need to conduct internal e-discovery, which could cover huge ranges of emails and other electronic data, and frequently also review the paper documents of employees with involvement in certain relevant aspects of the case. The number of employees who must disclose their (electronic) data can be substantial. Internal or external data forensic teams are employed with lawyers supervising the process just as in other internal investigations. When the data is to be disclosed outside of the EU, the General Data Protection Regulation requires further protective measures. This can further increase costs. In the US, the costs for depositions need to be considered.
Other jurisdictions are comparably cheaper. In Germany and the Netherlands, the costs for pursuing a claim have typically been lower than in the UK and US. However, both Germany and the Netherlands have since introduced disclosure rules when implementing the EU Damages Directive, which may potentially raise costs in future cases. The cost risk also rises in jurisdictions where ‘the loser pays principle’ applies. In the UK, for example, the courts have discretion to award costs between the parties taking into account settlement offers made. Some jurisdictions have cost caps that limit the claimant’s exposure to the risk of paying for the opponent’s legal and expert fees.
What type of disclosure rules exist?
The existence and relevance of discovery or disclosure rules can be a decisive factor for the choice of forum to mitigate the information asymmetry between cartelists and claimants. While the members of a secret cartel naturally have good knowledge of the events, claimants rely on the information made available by the competition authorities in press releases and the publication of non-confidential versions of decisions. In some jurisdictions, the initial claim does not need to be extensively substantiated and claimants can rely on information received through pre-trial discovery or disclosure.
What types of damages are available?
The amount of damages a claimant can recover varies considerably between jurisdictions. Notably, the US awards treble damages, while other jurisdictions award generous interest like the UK, where compound interest is available in certain cases. Interest may even exceed the original claim, especially when damages date back over a long period. The existence of the pass-on defence, meaning that the damages of the purchaser of a cartelised product are reduced if it passes on the overcharge to its downstream customers, can limit the damages direct purchasers can recover. If the jurisdiction allows for a pass-on defence (which the large majority of major jurisdictions do, with the notable exception of US federal law), defendants must demonstrate that higher prices were passed on downstream. Although the burden of proof often lies with the defendants, claimants will be asked to provide information on this point. Disclosure rules aid defendants to gather the relevant data for the economic analysis necessary for a pass-on defence.
What are the relevant limitation and suspension rules?
Limitation and suspension rules are another important aspect. While short limitation periods, with or without limited suspension rules, hinder claimants from bringing their full claim, the EU Damages Directive has, to some extent, aligned the diverse limitation periods in the EU. Knowledge-based limitation is five years. Absolute limitation periods of general application remain possible, which can cut off claims after a certain period. How long this period must be so as not to hinder the effective enforcement of competition law damages claims remains to be determined by the Court of Justice of the European Union. Suspension rules go hand-in-hand with limitation rules. Once competition authorities start investigating an alleged potential cartel, the limitation period should be suspended since claimants still need time to investigate whether they have been harmed and prepare a claim on the basis of a published decision.
How experienced are the courts in dealing with cartel damages litigation?
Some courts have judges with specialist experience in competition law damages litigation. In England, for example, the High Court in London and the Competition Appeal Tribunal have specialist judges who have built a reputation for taking on complex competition law damages litigation. In the Netherlands, the Amsterdam District Court has been handling several of this decade’s big cartel cases. Concentrating cases at a specialist court can be an advantage as judges will already have gained experience in this evolving field of law. Having expertise in economics available to the courts, for instance by having competition economists on the panel, reduces the risk of a judge being alienated by the complex economic analyses that are sometimes required in large competition law damages litigation.
What is the level of experience of the in-house team managing the case?
The case management capabilities of the claimant’s in-house team can be crucial in determining whether a claim should be outsourced or self-funded. Some companies have the internal resources to advance a case to the point where the need for external legal counsel becomes acute. The more sophisticated a team is, the more options it has for running a claim, compared with companies with more limited resources. For the latter, in highly complex cases it may be sensible to have less involvement and assign claims to a bundler, although sometimes this expertise may be brought in through external funding in the form of a group claim or by a law firm working on a contingency fee basis.
The experience and capabilities of the in-house team also determines the level of control a company can have over its claim. By bringing in external funding, be it via a litigation funder or the contingency work of a law firm, a company will always to a certain extent give away control over the claim and the litigation. In complicated, multi-jurisdictional cases, the expertise of funders and lawyers may help in complex strategic decisions. However, especially in settlement discussions, the funder or the law firm working on a contingency fee basis may have different incentives from the claimant. For example, their target range for a settlement amount may well be higher or lower depending on whether their overall investment in the case has already been amortised, although this depends on many other factors during settlement talks.
When claims are assigned to a litigation vehicle, the claimant’s participation rights will be rather limited. Assignors typically have a number of information rights concerning, inter alia, material changes in the litigation and litigation milestones, but usually have no direct influence on the conduct of the proceedings. In most cases, even settlements are not subject to assignors’ prior approval.
How important is the claimant’s relationship with the cartelists?
Naturally, the level of visibility of the claim can be an important factor for a company. In certain sectors, namely where products can only be procured from one or a limited number of companies, a claimant company will often be reluctant to go forward with a self-funded, high-profile, cartel damages claim. In extreme cases, preserving a good business relationship may even ultimately outweigh the compensation of past sins. However, in cases where there is a potential retaliation risk, claimants may reduce this risk by opting to assign their claims to a litigation vehicle or even exclude it by joining a class action lawsuit to avoid exposing the company in relation to its business partners.
1 Dr Tilman Makatsch is head of competition litigation and antitrust economics at Deutsche Bahn AG and the managing director of DB Competition Claims GmbH. Robert Bäuerle is senior legal counsel at Deutsche Bahn AG.
2 See, e.g., in Germany, Section 59 and 60 of the Code of Civil Procedure.
3 See for a description of the CDC, e.g., Schreiber, The International Lawyer (2010), 1157, 1170.
4 In the Netherlands there is the option besides bundling claims in a BV/NV of bundling claims in a Stichting. With the enactment of the new Claim Code, a Stichting can now also be awarded damages.
5 See, Gulfstream Iii Associates, Inc., et. al., No. 995 F.2d 425 (3d Cir. 1993).
6 In Germany, however, the financing of the litigation vehicle needs to reflect the cost risks associated with losing a case. Just very recently, the validity of assignments under the Act on Out-of-Court Legal Services has spurred debate. The Federal Supreme Court confirmed the validity of individual assignments (see BGH, 27. November 2019, ECLI:DE:BGH:2019:271119UVIIIZR285.18.0 – wenigermiete.de, Rn. 110 ff., 143 ff.; as well as BGH, 8. April 2020, ECLI:DE:BGH:2020:080420UVIIIZR130.19.0 – wenigermiete.de II and BGH, 27.May 2020, ECLI:DE:BGH:2020:270520UVIIIZR45.19.0 – wenigermiete.de III), but has not had a chance to rule on the validity of bundled assignments (including the validity of the assignments under the Act on Out-of-Court Legal Services in cases where a third-party funder is involved; see the negative first instance judgment of LG München I, 7. February 2020, ECLI:DE:LGMUEN1:2020:0207.37O18934.17.0A).
7 In Germany, for example, the funding market is rather unregulated and left to case law.
8 S.471-Litigation Funding Transparency Act Of 2019, congress.gov, https://www.congress.gov/bill/116thcongress/senate-bill/471/text (last visited 21 August 2019).
9 For an overview see Report To The President By The New York City Bar Association Working Group On Litigation Funding, p. 47 et.seq., http://documents.nycbar.org/files/Report_to_the_President_by_Litigation_Funding_Working_Group.pdf (last visited 21 August 2020).
10 Walter Hugh Merricks CBE v. Mastercard Inc and others  CAT 16;  EWCA Civ 674.
11 In the US, Rule 23 of the Rules of Civil Procedure (FRCP) requires notice and the opportunity to opt-out for every settlement. When the class plaintiff settles at different points in time with different defendants, for efficiency reasons class notices can be sent out in ‘rounds’. Although, class members can opt out of each settlement individually; see e.g., In re Air Cargo Shipping Services Antitrust Litig., No. 06-md-1775 (E.D.N.Y.) where opt-outs were possible in each settlement round.
12 e.g., ‘business judgement rule’ as stipulated under German corporate law.
13 This used to be a major issue in Germany, but the lawmaker included a cap in Section 89(a)(3) of the Act against Restraints of Competition, when implementing the EU Damages Directive into German law.
14 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European (EU Damages Directive).
15 CPR Part 36 in civil courts (Part 36 Offers) and Rules 45–49 of the Competition Appeal Tribunal Rules.
16 e.g., in Germany the legal fees are based on the statutory fee schedule stipulated in the Law on the Remuneration of Attorneys, while the maximum value of the claim on which basis all fees are calculated is capped to €30 million.
17 The publication of a non-confidential version of the decision is common practice for many competition authorities; the German Federal Cartel Office, however, regularly does not publish its decisions.
18 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (EU Damages Directive).
19 See Article 10(2) and (3) EU Damages Directive.
20 See Recital 36 EU Damages Directive.
21 Recital 36 of the EU Damages Directive states that absolute limitation periods should ‘. . . not render practically impossible or excessively difficult the exercise of the right to full compensation’.