The Guide to Energy Market Manipulation

Private Actions in the United States, Canada and Europe

Blake, Cassels & Graydon LLP

Introduction

In Canada, the European Union and Member States with developed private action regimes (e.g., Germany, the Netherlands and the United Kingdom), no significant private actions have been brought alleging that a firm or firms have manipulated energy markets. Such actions are also rare in the United States. Similarly, energy-specific legislation that permits a regulator to pursue market manipulation generally does not grant a private right of action where a firm or firms have allegedly manipulated energy markets. Having said that, in these jurisdictions, private rights of action and (forms of) collective redress are available with respect to energy market manipulation under competition laws and other causes of action.

Part I: private actions in the United States

Sources of liability for damages

In the United States, private plaintiffs may bring antitrust claims against energy companies under the Sherman Act, the Clayton Act or their state law equivalents. If successful, plaintiffs may be entitled to trebled damages for which defendants are jointly and severally liable.

The Sherman Act

Section 1 of the Sherman Act, which makes illegal agreements ‘in restraint of trade’, prohibits coordinated conduct such as price fixing, bid rigging, market allocation and other collusive acts.[2] Although written broadly, courts early on interpreted Section 1 to apply only to unreasonable restraints of trade, meaning agreements that harm competition. Section 2 of the Sherman Act deals with unilateral conduct and makes illegal monopolisation of, attempts to monopolise, and conspiracies to monopolise any market in interstate commerce.

The Clayton Act

The Clayton Act is a civil statute that prohibits mergers and acquisitions likely to substantially lessen competition, and exclusive dealing between companies.[3] The Clayton Act also provides a private person who is injured because of a violation of the antitrust laws the right to sue in federal court and recover trebled damages, including reasonable attorney’s fees.[4] Private parties are also able to obtain equitable relief.[5]

Individuals, corporations and foreign governments[6] that are direct purchasers all have standing to bring an antitrust action.[7] While indirect purchasers do not have standing to bring damages actions under the federal antitrust laws, they may sue for equitable relief, such as an injunction. Indirect purchasers are permitted to sue for damages under many state antitrust laws.[8] Accordingly, many indirect purchaser plaintiffs will sue for injunctive relief under the Sherman Act in order to be in federal court, and will add state law claims to their suit seeking damages.

In order for a plaintiff to have standing to bring a claim, the plaintiff must suffer an antitrust injury, which is an injury of the type that the antitrust laws were designed to protect against – namely, harm to competition, not just harm to a competitor.[9] Furthermore, the injury must typically be the direct result of the defendant’s unlawful conduct, and courts may deny standing if an injury is too remote.[10]

State antitrust and consumer protection laws

Most states have their own antitrust laws, which are often explicitly modelled after the federal antitrust laws. Plaintiffs frequently bring claims alleging violations of both federal and state antitrust laws. In addition, some plaintiffs will include claims under state consumer protection and consumer fraud statutes.

Statute of limitations

The statute of limitations for bringing a private antitrust action is four years, which generally runs from the date the injury occurs and not from the date when the unlawful conduct took place.[11] Courts have also recognised that when unlawful conduct is fraudulently concealed, the statute of limitations only begins when the plaintiff discovers, or a reasonable plaintiff should have discovered, the injury.[12] Additionally, the statute of limitations is typically tolled if the government institutes a proceeding; however, if the statute of limitations has otherwise run, the private action must be brought within a year of the end of the government proceedings.[13] A judgment in a criminal antitrust proceeding can be used in a subsequent civil proceeding as prima facie evidence of an antitrust violation.

In the United States, antitrust conspirators face joint and several liability for all damages caused by the conspiracy with no right to contribution from co-conspirators.[14] In this regard, private parties can elect to bring an action against a single defendant for all of the damages and the defendant will have no right to seek any payments from the co-conspirators.

Exemptions and immunities

The United States antitrust laws are subject to several exemptions and immunities. Most are statutory, but some have been created by the courts. Industries and entities subject to statutory exemptions include ocean shipping carriers,[15] agricultural cooperatives,[16] insurance[17] and labour unions.[18] The Foreign Trade Antitrust Improvements Act (FTAIA)[19] limits the application of the federal antitrust laws to foreign conduct that has a ‘direct, substantial and reasonably foreseeable’ effect on US commerce. There is some uncertainty regarding the degree of FTAIA’s applicability to civil actions.

Judicially created immunities include the state action doctrine, which holds that states acting within the scope of their sovereign capacity are immune from liability.[20] This also applies to private parties acting pursuant to a clearly articulated scheme to displace competition, and whose conduct is actively supervised by the state. Under the Noerr-Pennington doctrine, private companies are not liable for attempting to influence the passage of laws that may have anticompetitive effects.[21] Another defence a defendant may raise in a private antitrust action, especially in highly regulated industries such as energy, is immunity under the filed rate doctrine. The filed rate doctrine bars cases where the plaintiff challenges the validity of rates offered to customers that have been filed with a federal regulatory agency, such as the Federal Energy Regulatory Commission (FERC).[22]

Antitrust class actions

Antitrust class actions are common in the United States, and plaintiffs are able to bring class actions under the Class Action Fairness Act[23] as long as they meet the requirements of the Federal Rules of Civil Procedure,[24] which dictate the prerequisites for class certification, including that the proposed class is sufficiently large, that the class shares a common question of law or fact, and that the claims of the representative plaintiffs are typical of the whole class. Additionally, under the Federal Rules, other conditions must be met depending on the type of lawsuit, the most common conditions being that the common questions of law or fact predominate over other issues and that a class action is the superior method of resolving the antitrust dispute.

Plaintiffs may also bring cases under state antitrust statutes[25] or even state consumer fraud statutes.[26] A private party may also choose to refer the action to federal or state regulators, including the DOJ antitrust division, which can bring civil and criminal claims, and the Federal Trade Commission (FTC), which can charge companies with violating the Federal Trade Commission Act,[27] which prohibits unfair methods of competition in interstate commerce.

Cartel conduct

As noted above, Section 1 of the Sherman Act prohibits any agreement between two or more competitors that functions as an unreasonable restraint of trade in interstate or foreign commerce.[28] Unreasonable restraints of trade can include price-fixing agreements, group boycotts, certain joint ventures, information exchanges, price signalling, non-solicitation and non-compete agreements, and joint purchasing agreements. Trade associations, which are common in the energy industry, are also subject to antitrust scrutiny.[29] In this regard, trade associations should have proper compliance protocols in place to ensure that members, who are often competitors, are not sharing competitively sensitive information or entering into agreements that may violate US antitrust laws.

To prove a violation of Section 1, a plaintiff must prove that there was an agreement or concerted action between two or more actual or potential competitors that placed an unreasonable restraint on trade and that this agreement had an effect on interstate commerce or commerce with foreign nations. An agreement under the Sherman Act does not need to be express and can be proven by either direct or circumstantial evidence. In order to be considered a competitor, two or more competitors must do business in the same relevant product and geographic markets. To determine whether there was an unreasonable restraint of trade first depends on whether the agreement was a per se violation that is unreasonable as a matter of law based on its harmful effects on competition, such as price fixing, output restriction, market division and some group boycotts. If the unlawful conduct does not fall into one of these categories, the court will use the rule of reason to balance the anticompetitive harms against the procompetitive benefits and determine whether the net effect of the agreement is an unreasonable restraint on trade that harms competition. In a civil case, each element discussed above must be proven by a preponderance of the evidence, a lower standard than that required in a criminal prosecution. Conspiracy to monopolise is also punishable under Section 2 of the Sherman Act.

Unilateral conduct

Private actions may be brought under Section 2 of the Sherman Act, which addresses unilateral conduct by firms attempting to acquire or maintain monopoly power.[30] For instance, plaintiffs have brought cases under the ‘essential facilities doctrine’, alleging that a pipeline is essential and that the owner of the pipeline had not provided reasonable access.[31] The essential facilities doctrine, however, is viewed by some as being on the fringe of Section 2 jurisprudence. These and other refusal to deal claims have become increasingly difficult, especially in regulated industries.[32]

Section 2 claims are reviewed under the rule of reason. To prevail on a claim under Section 2, plaintiffs must prove that the defendant possesses market power – either through direct evidence or inferred from a high market share in relevant product and geographical markets – and that the defendant’s market power was acquired or maintained through some exclusionary behaviour (e.g., tying or exclusive dealing).

Oneok v. Learjet Inc: a case study

In a 2015 case, Oneok v. Learjet, the Supreme Court case, the Supreme Court addressed whether state antitrust claims were pre-empted by the Natural Gas Act. The respondents, a group of companies and institutions that bought natural gas directly from interstate pipelines, brought state antitrust claims against interstate pipeline companies alleging that they reported false information to natural gas indices, affecting both retail natural gas prices, which are not federally regulated, and wholesale natural gas prices, which are. The defendant interstate pipelines moved for summary judgment claiming that the Natural Gas Act pre-empted the respondents’ state-law claims. Under the Natural Gas Act, the Federal Energy Regulatory Commission (FERC) claims to have the authority to determine whether natural gas rates are unreasonable and jurisdiction over the transportation of natural gas in interstate commerce, the sale of natural gas for resale in interstate commerce and natural gas companies engaged in either activity. The district court granted the defendant interstate pipelines’ motion and, on appeal, the circuit court reversed. After granting review, the Supreme Court found that state antitrust laws were not pre-empted as, under the Natural Gas Act, regulation of direct sales and local distribution is left to the states.

Buccaneer Energy (USA) Inc v. Gunnison Energy Corp:[33] a case study

Buccaneer Energy, a natural gas producer attempting to enter the market in Colorado, claimed that three natural gas producers conspired in restraint of trade and to monopolise in violation of the Sherman Act when they refused to provide Buccaneer with access to their jointly owned pipeline system at a reasonable price. The district court granted the defendants’ motion for summary judgment, finding that Buccaneer failed sufficiently to allege both claims and also lacked antitrust standing to bring the claims in the first place. The court of appeals affirmed the lower court’s decision, finding that under a rule of reason approach, where the plaintiff bears the burden of showing that there was an adverse effect on competition in general, Buccaneer had failed to provide evidence that the conduct of the three natural gas producers actually harmed competition.

Part II: private actions in Canada

Sources of liability for damages

In Canada, a (private) claimant may bring an action against a company or group of companies engaging in energy market manipulation under the federal Competition Act or common or civil law tort, the former only as regards manipulation involving an agreement or arrangement between two or more competitors or potential competitors.[34]

Under Canada’s Competition Act, any person who has suffered loss or damage arising out of conduct that contravenes the Act’s criminal provisions, notably conspiracy or bid rigging, may commence a private action to recover the damages suffered.[35] Private actions may be brought on allegations of such criminal conduct, even absent any conviction or investigation with respect to the alleged conduct. Under the Competition Act, a claimant may bring the action within two years of the later of the day of the alleged conduct or the day on which the criminal proceedings were finally disposed in any provincial superior court or the Federal Court, but actions are generally commenced in provincial superior courts.

Private actions may be brought by a claimant acting either in an individual capacity or as a representative of a class of claimants in a class action. Both direct and indirect purchasers of a good or service have standing to bring an action. Defendants may plead certain defences, including the ‘regulated conduct defence’, which provides immunity for impugned conduct that was expressly or impliedly required or authorised by valid provincial or federal law.

If a defendant is found liable, the claimant may only recover the costs of the investigation and the actual loss or damages suffered in Canada; neither treble damages nor punitive damages are available, though the latter may be pursued under tort claims.[36] Competition-law-based actions generally include common or civil law (Quebec) claims, for example, the tort of conspiracy, intentional interference with economic interests, the unlawful means tort, or unjust enrichment.[37] Defendants are jointly and severally liable for civil claims. These claims are subject to different limitation periods prescribed by the relevant provincial law.

Cartel conduct

The Competition Act prohibits any competitors or potential competitors from entering into an agreement or arrangement to (1) fix, maintain, increase or control the price for the supply of a product; (2) allocate sales, territories, customers or markets for the production or supply of a product; or (3) fix, maintain, control, prevent, lessen or eliminate the production or supply of a product.[38] The claimant must establish the agreement or arrangement, that the parties to the agreement or arrangement are competitors, and that it suffered actual, quantifiable loss or damage as a result of the agreement or arrangement. As noted above, a claimant may be able to bring a private action for cartel conduct manipulating energy markets in reliance on the common (and civil) law torts based not only on a violation of the criminal cartel provisions of the Competition Act but also under certain provincial legislation, including Alberta’s Electric Utilities Act and Fair, Efficient and Open Competition Regulation and Gas Utilities Act, and Ontario’s Electricity Act and Ontario Energy Board Act 1998.[39]

Unilateral conduct

The Competition Act does not provide for a right of private action for unilateral conduct. Section 79 of the Competition Act provides that only the Commissioner of Competition may bring an action in respect of an abuse of dominant position.[40] However, the Competition Act creates a right of action for any loss and damage resulting from a failure to comply with an order of a court or the Competition Tribunal, including an order from the Competition Tribunal prohibiting unilateral conduct. Instead, a claimant may be able to bring a private action for unilateral conduct manipulating energy markets in reliance on common (or civil) law torts, based on applicable provincial legislation, as noted above.

TransAlta: a case study

In 2015, the Alberta Market Surveillance Administrator (MSA) brought a claim against TransAlta Corporation and certain affiliates (collectively, ‘TransAlta’) before the Alberta Utilities Commission (AUC) alleging that TransAlta contravened Section 6 of the Electric Utilities Act and Sections 2(h) and (j) and 4 of the Fair Efficient and Open Competition Regulation.[41] The MSA alleged that, in late 2010 and early 2011, TransAlta intentionally took certain coal-fired generators offline during peak hours for repairs, which caused wholesale electricity prices to increase, and resulted in customers paying 10–60 per cent more for electricity during the shutdown periods.[42] While TransAlta maintained that the generators were taken offline for repairs, the AUC determined that the generators were taken offline based on market conditions. In October 2015, the AUC approved a settlement agreement between the MSA and TransAlta under which TransAlta was required to pay a C$56 million fine. The fine included a C$52 million administrative penalty, understood to be the largest of its kind in Canadian history, and C$4 million to cover MSA’s full costs of the investigation and the AUC proceeding.[43]

Following the AUC’s decision, a class action was initiated against TransAlta in the Alberta Court of Queen’s Bench on behalf of all individuals and commercial purchasers of power in Alberta during the shutdown periods in 2010 and 2011.[44] The statement of claim alleged that TransAlta’s conduct was contrary to the criminal conspiracy provision of the Competition Act, and contrary to Section 2 of the Fair, Efficient and Open Competition Regulation, and Section 6 of the Electric Utilities Act. The claimant sought to recover, among other things, C$20 million in damages and C$5 million in punitive damages, pursuant to Section 36 of the Competition Act, and through the common law torts of unjust enrichment, conspiracy, intentional interference with economic interests and unlawful means. The class action is ongoing, but has yet to be certified.

Part III: private actions in Europe

Sources of liability for damages

The European Court of Justice maintains that claimants have the right to bring private actions in respect of conduct contrary to EU competition legislation,[45] in Member State courts. Article 101 of the TFEU prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market. Article 102 of the TFEU prohibits any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it in so far as it may affect trade between Member States.

Private actions in respect of European Union Member State competition laws are in their infancy. The European Commission’s Directive on Antitrust Damages Actions (the Directive) came into force on 26 December 2015; it required Member States to introduce the Directive to their legal systems by 27 December 2016,[46] notably to create a judicial process that allows private actions to recover damages for harm suffered due to breaches of European Commission competition law and to facilitate ‘follow-on claims’ by making European Commission and local Member State decisions in competition matters binding on the Member State courts that hear private actions.

In Germany, a claimant may bring a follow-on or stand-alone private action for damages for a breach of the Act Against Restraints on Competition, and Articles 101 or 102 of the TFEU, as well as under the Civil Code.[47] In a follow-on action from a decision of a competent competition authority, a claimant does not need to establish that the infringement occurred, only that harm was suffered as a result of infringement. In a ‘stand-alone’ action, a claimant bears the burden of establishing that an infringement occurred; however, there is no requirement that the conduct in question has been prosecuted. A private action must be brought within five years of the date the competition law infringement ended if the claimant had knowledge of the harm, and within 10 years if the claimant had no knowledge.[48] However, the limitation period will be interrupted if a competition authority initiates proceedings for the alleged infringement.[49] A claimant may only be compensated for actual losses or damages (not treble damages), and cannot receive punitive damages.

In the Netherlands, private actions may be brought as a breach of its Competition Act’s prohibitions against anticompetitive agreements and abuse of dominance, or a breach of Articles 101 or 102 of the TFEU. Since its law does not provide a statutory private right of action, a claimant must bring a private action to recover damages as a result of anticompetitive conduct under the Civil Code provisions on tortious acts and unjust enrichment.[50] As in Germany, a claimant does not need to establish that the infringement occurred in a follow-on action (only that harm was suffered as a result of the infringement), and in a stand-alone action, there is no requirement that the conduct in question be prosecuted.[51] For follow-on claims, an action must be brought within the Civil Code’s general tort limitation period, which is within five years of the date the claimant becomes aware of the damage and the identity of the person responsible for the damage.[52] However, the limitation period will be interrupted if a competition authority initiates proceedings for the alleged infringement. For a stand-alone claim, the five-year general tort claim limitation period applies. A claimant may only recover actual damages incurred.

In the United Kingdom, pursuant to the Competition Act 1998 (as amended by the Consumer Rights Act 2015), a claimant may bring a private action for damages or any other sum of money before the Competition Act Tribunal (CAT) or before the High Court.[53] The CAT or High Court may hear a follow-on action in respect of an infringement of Section 2 or Section 18 of the Competition Act 1998 or Articles 101 or 102 of the TFEU from a decision of a competent competition authority.[54] They may also hear a stand-alone claim for an alleged infringement of these provisions. Pursuant to 2015 legislative amendments, for harm that occurred after 1 October 2015, a claimant must bring an action with for damages that occurred after 1 October 2015 within six years, and for harm that occurred before 1 October 2015 within two years.[55] A claimant may also bring a private action for a breach of competition law under the common law tort of ‘breach of statutory duty.’[56] For common law tort claims, the Limitation Act 1980 requires an action be brought within six years of the date that the cause of action accrued.[57] Claimants may seek damages, punitive damages, declaratory relief and injunctive relief.

The European Commission’s Recommendation on Collective Redress Guidelines encourages Member States to establish mechanisms for collective redress, including compensatory and injunctive relief, for breaches of European Union and Member State competition legislation.[58] A claimant’s ability to bring a class action, and the type of redress that may be sought varies between Member States. For example, in Germany, the Code of Civil Procedure contains no mechanism for general collective redress, but provides for multiparty disputes and allows for the some consolidation of separately initiated parallel proceedings.[59] In addition, consumer associations may bring actions on behalf of consumers.[60] In the Netherlands, collective redress is available through representative collective actions under Article 3:305a of the Civil Code, and collective class settlements under the Act on Collective Settlement of Mass Claims.[61],[62],[63] In the United Kingdom, collective redress before the CAT and High Court is available under Section 47B of the Competition Act 1998 on an opt-in or opt-out basis.[64] The CAT must authorise an individual to act as the representative of the claimants in a collective proceeding, and will authorise claims for a collective proceeding for similar or related issues, and are suitable to be brought in collective proceedings.

Cartel conduct

In Germany, the Act Against Restraints of Competition prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices that have as their object or effect the prevention, restriction or distortion of competition, or was otherwise contrary to Article 101 of the TFEU.[65] In addition, Germany’s Civil Code provides that a person who, intentionally or negligently, breaches a statute that is intended to protect another person, is liable to compensate the other party for the damages arising from the breach.[66]

In the Netherlands, the Competition Act prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices of undertakings that have the intention to or will result in hindrance, impediment or distortion of competition on the Dutch market, or was otherwise contrary to Article 101 of the TFEU.[67]

In the United Kingdom, the Competition Act 1998 prohibits certain agreements between undertakings, decisions by associations of undertakings or concerted practices that may affect trade within the United Kingdom and are intended to or have the effect of preventing, restricting or distorting competition within the United Kingdom; or was otherwise contrary to Article 101 of the TFEU.[68] A claimant may also bring a private action under the common law tort of ‘breach of statutory duty’. For example, a claimant may bring a private action if cartel conduct manipulating energy markets was contrary to duties in the Energy Markets Act 1998 or the Gas Act 1986.[69]

Unilateral conduct

In Germany, the Act Against Restraints of Competition generally prohibits the abuse of a dominant position, indeed, specifically prohibits a dominant supplier of electricity or pipeline gas (public utility company) from abusing its position, and prohibits conduct otherwise contrary to Article 102 of the TFEU.[70] As described above, the Civil Code also provides for a private right of action for breaching a statute.

In the Netherlands, the Competition Act prohibits undertakings from abusing a dominant position or conduct otherwise contrary to Article 102 of the TFEU.[71]

In the United Kingdom, the Competition Act 1998 prohibits any conduct on the part of one or more undertakings that amounts to the abuse of a dominant position in a market, or conduct otherwise contrary to Article 102 of the TFEU. As noted above, a claimant may also bring a private action under the common law tort of ‘breach of statutory duty’. For example, a claimant may bring a private action if unilateral conduct manipulating energy markets was contrary to certain duties and obligations in the Energy Markets Act 1998 or the Gas Act 1986.[72]

E.ON and GDF: a case study

In 2009, the European Commission imposed fines totalling €1.106 billion – €553 million on E.ON AG and its subsidiary E.ON Ruhrgas AG of Germany (collectively, E.ON) and €553 million on GDF Suez SA of France (GDF) – in relation to E.ON and GDF’s participation in a market-sharing agreement and concerted practices in the natural gas sector.[73] The European Commission noted that these were the first European Commission fines imposed for an antitrust infringement in the energy sector.

In 1975, Ruhrgas and GDF built a natural gas pipeline known as MEGAL to transport natural gas from Russia to Germany and France. In two side letters, Ruhrgas and GDF explicitly agreed that GDF would not sell any gas transported over MEGAL in Germany and that Ruhrgras would not sell any gas in France.[74] GDF held a legal monopoly to import natural gas into France until 2000, and Ruhrgas’ supply area in Germany was de facto protected from competition by a ‘demarcation agreements’ system with other German suppliers until 1998. Ruhrgas and GDF maintained their market-sharing agreement until the European Commission commenced an investigation in 2006.

The European Commission found that the market-sharing agreement continued to exist and cause market effects from 1 January 1980 in the German market, and from 10 August 2000 in the French market, until at least 30 September 2005, in violation of then Section 81(1) of the European Commission Treaty, which prohibits ‘all agreements between undertakings, decisions by associations of undertakings and concerted practices that may affect trade between Member States and that have as their object or effect the prevention, restriction or distortion of competition within the common market’.[75] Due to the market-sharing agreement, E.ON and GDF maintained strong domestic market positions in their respective natural gas markets during a time of market liberalisation, and as a result, deliberately denied German and French gas consumers any benefits thereof, including increased price competition and supplier choice.

Although the European Commission’s press release announcing the fines imposed on E.ON and GDF affirmed that any person or firm affected by E.ON and GDF’s conduct was entitled to be bring a private action seeking damages before the courts of a Member State, no follow-on or stand-alone actions were filed.[76]

Under current laws, based on these facts, a private action may seemingly have been initiated in Germany under Section 33 of the Act Against Restraints of Competition, as the agreement between E.ON and GDF was likely to be contrary to Section 1 prohibiting agreements between undertakings, decisions by associations of undertakings and concerted practices that have as their object or effect the prevention, restriction or distortion of competition. A claimant could seemingly have relied on the European Commissions’ decision in E.ON and GDF to establish the prohibited conduct, and would have been eligible to recover damages for the actual damages incurred. As well, a claimant could have brought a general tort action under the German Civil Code to recover damages for the breach of the Act Against Restraints of Competition.

Notes

[1]     Randall Hofley is a partner and Justine Johnston is an associate at Blake, Cassels & Graydon LLP. They authored Part II: private actions in Canada, and Part III: private actions in Europe. Joseph J Bial is a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP and authored Part I: private actions in the United States. He was assisted by Mark Meador, Eric Sega and Kristin Casey.

[2]     Sherman Act, 15 U.S.C. Sections 1-7.

[3]     Clayton Act, 15 U.S.C. Sections 12-27. In Tampa Electric Company v. Nashville Coal, 365 U.S. 320 (1961), the Supreme Court found that a 20-year coal contract for $120 million did not violate Section 3 of the Clayton Act because the performance of the contract would not likely result in a substantial market foreclosure because less than 1 per cent of the coal market was foreclosed.

[4]     15 U.S.C. Section 15.

[5]     15 U.S.C. Section 26.

[6]     Pfizer, Inc. v. Gov’t of India, 434 U.S. 308 (1978).

[7]     15 U.S.C. Section 15(b).

[8]     Illinois Brick Co. v. Illinois, 431 U.S. 270 (1977); see, e.g., Cal. Bus. & Prof. Code Section 16750; D.C. Code Section 28-4509.

[9]     See, e.g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977).

[10]    See, e.g., Hoopes v. Union Oil, 374 F.2d 480, cert. denied, 395 U.S. 943 (1969).

[11]    Clayton Act, 15 U.S.C. Section 4B.

[12]    Kansas City v. Federal Pacific Electric Co., 310 F.2d 271 (8th Cir. 1962).

[13]    See 15 U.S.C. Section 16(i); Clayton Act Section5(b).

[14]    See Texas Indus. v. Radcliff Materials, Inc., 451 U.S. 630, 645-46 (1981).

[15]    The Shipping Act of 1984, 46 U.S.C. Sections 40101–41309.

[16]    Capper-Volstead Act, 7 U.S.C. Sections 291, 292.

[17]    McCarran-Ferguson Act, 15 U.S.C. Sections 1011-1015.

[18]    Clayton Act Section 6, 15 U.S.C. Section 17.

[19]    Foreign Trade Antitrust Improvements Act (FTAIA), 15 U.S.C. Section 6a.

[20]    See Parker v. Brown, 317 U.S. 341 (1943).

[21]    Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965).

[22]    See Keogh v. Chicago & Northwest Railway Co., 260 U.S. 156 (1922).

[23]    Class Action Fairness Act of 2005,28 U.S.C. Section 1711 et seq.

[24]    Fed. R. Civ. P. 23.

[25]    See, e.g., Colo. Rev. Stat. Ann. Section 6-4-104; N.Y. Gen. Bus. Law Section 340.

[26]    See, e.g., Cal. Bus. & Prof. Code Sections 17200 et seq.; N.Y. Exec. Law Section 63(12).

[27]    Federal Trade Commission Act, 15 U.S.C. Sections 41-58.

[28]    15 U.S.C. Section 1.

[29]    See Geoffrey Green, Bureau of Competition, Antitrust by association(s), FTC Blog (May 1, 2014), https://www.ftc.gov/news-events/blogs/competition-matters/2014/05/antitrust-associations; see, e.g., Consolidated Metal Products, Inc. v. American Petroleum Institute, 846 F.2d 284 (5th Cir. 1988).

[30]    15 U.S.C. Section 2.

[31]    See Otter Tail Power Co. v. United States, 410 U.S. 366, 377 (1973).

[32]    See, e.g., Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004).

[33]    86 F.3d 1297 (10th Cir. 2017).

[34]    Competition Act (RSC, 1985, c. C-34), at Section 36.

[35]    The criminal provisions of the Competition Act regulate conspiracy (s 45), bid rigging (s 47), misleading advertising (s 52), and deceptive telemarketing practices (s 52.1).

[36]    The court may also award legal costs (and investigation costs, for Competition Act-based claims) to the successful party in private actions, however, certain provincial and the Federal Court rules provide that outside extraordinary circumstances, no party shall pay the other’s costs in a class action context.

[37]    See for example Godfrey v. Sony Corporation, 2016 BCSC 844 (affirmed by 2017 BCCA 302), a class certification proceeding in respect of allegations the defendants participated in a global, criminal price-fixing cartel that raised the price British Columbians paid for optical disc drives and products containing such devices.

[38]    Supra note 2, at Section 45.

[39]    See for example, Electric Utilities Act and Fair, SA c. E-5.1, at Section 6, the Efficient and Open Competition Regulation, Reg 159/2009, at Sections 2(h), 2(j), and 4, the Gas Utilities Act, RSA c. G-5, at Section 28.9(2), Electricity Act, SO 1998, c. 15, at Sections 1(e)-(g), and the Ontario Energy Board Act, 1998, SO 1998, c. 15, Sched. B.

[40]    Supra note 2, at Section 79.

[41]    Market Surveillance Administrator v. TransAlta Corporation et al, Alberta Utilities Commission Decision 3110-D02-2015, available here: http://www.auc.ab.ca/regulatory_documents/ProceedingDocuments/2015/3110-D02-2015.pdf.

[42]    Ibid.

[43]    Alberta Utilities Commission, ‘AUC Approves $56 million TransAlta Market Manipulation Settlement’ (Calgary: October 29, 2015), available here: http://www.auc.ab.ca/news-room/news-releases/News%20Releases/2015/NR2015-02.pdf.

[44]    David Carlson v. TransAlta Corporation et al, Court File No. 1603-08659 filed on 13 May 2016.

[45]    Contrary conduct includes breaches of Article 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

[46]    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, available here: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2014.349.01.0001.01.ENG.

[47]    Act Against Restraints of Competition, at Section 33.

[48]    Ibid.

[49]    Ibid.

[50]    Civil Code of the Netherlands, at Articles 6:162 CC, and 6:212 CC. Article 6:162 provides that a person who commits a tortious act (unlawful act) against another person that can be attributed to him, must repair the damage that this other person has suffered as a result thereof. Tortious acts are those that violate an individual’s right and an act or omission in violation of a duty imposed by law or proper social conduct, insofar as there is no justification for this behaviour. Article 6:212 provides that a person, who has been unjustifiably enriched at the expense of another person, has the obligation towards that other person to repair the damage up to the amount of his enrichment, as far as this is reasonable.

[51]    Dutch Code of Civil Procedure, at Articles 6:95, and 150.

[52]    Dutch Code of Civil Procedure, at Article 3:310.

[53]    Competition Act 1998, at Section 47A.

[54]    Ibid, at Sections 2 and 18.

[55]    Competition Appeal Tribunal Rules 2015, at Section 119 and Competition Appeal Tribunal Rules 2003, at Section 31.

[56]    Garden Cottage Foods Ltd v. Milk Marketing Board, [1984] AC 130.

[57]    Limitation Act 1980, at Section 2.

[58]    European Commission, ‘Commission Recommendation of June 11 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law’ (2013/396/EU), available here: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32013H0396&from=EN.

[59]    Christoph Baus and Christine Gartner, Latham & Watkins LLP, ‘Overview of Class/Collective Actions and Current Trends’, available here: https://m.lw.com/thoughtLeadership/class-actions-germany.

[60]    Such claims are ‘opt-in’. Once a consumer association has been assigned a claim under the Legal Advice Act, the representative association will then pursue the claim on its own, will collect damages as the official claimant, and then distribute them among the individual claimants.

[61]    Civil Code of the Netherlands, at Articles 3:305A, 7:908 - 7:910, and Dutch Code of Civil Procedure, at Articles 1013-1018.

[62]    Presently, claimants are able to seek injunctions and declaratory relief through representative class actions, but not damages. However, in November 2016, the Dutch government presented a legislative proposal to the House of Representatives aimed at amending Article 3:305a to allow for damages in class claims. As of March 2017, the amendment was expected to receive legislative approval. The amendments will allow claimants to bring class actions for damages exclusively before the Amsterdam District Court, and will require they demonstrate that the class is sufficiently connected to the Dutch jurisdiction.

[63]    The class settlement regime was created under Dutch Act on Collective Settlement of Mass Claims (WCAM). The WCAM will authorise collective settlement, but not litigation, for any type of class wide harm. The process uses an opt-out approach and is modelled on the US class action regime.

[64]    Consumer Rights Act 2015, United Kingdom, available here: http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted.

[65]    Act Against Restraints of Competition, at Section 1.

[66]    German Civil Code, at Section 823, available here: https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p3484.

[67]    Dutch Competition Act, at Article 6.

[68]    Competition Act 1998, at Sections 2 and 47A.

[69]    See for example, Energy Markets Act 1998, at Section 9 or Gas Act 1986, at Section 9.

[70]    Act Against Restraints of Competition, at Sections 19 and 29.

[71]    Dutch Competition Act, at Art 24.

[72]    See for example, Energy Markets Act 1998, at Section 9 or Gas Act 1986, at Section 9.

[73]    E.ON/GDF, COMP/39.401, available here: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52009XC1016(01)&from=EN.

[74]    European Commission, ‘Summary of Commission Decision of 8 July 2009 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/39.401 – E.ON/GDF)’, available here: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52009XC1016(01)&from=EN.

[75]    EC Treaty, at Art 81.

[76]    European Commission, ‘Commission fines E.ON and GDF Suez €553 million each for market-sharing in French and German gas markets’, Press Release (08-07-2009), available here: http://europa.eu/rapid/press-release_IP-09-1099_en.htm?locale=fr.

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