On 29 July 2016, the High Court of England and Wales delivered
its judgment dismissing the applications of two defendants to
strike out a follow-on damages case in which the claimant, iiyama,
asserts that it suffered losses as a result of the defendants'
alleged participation in the LCD cartel. Iiyama v Samsung
 EWHC 1980 (Ch).
The claim follows on from the European Commission's decision
of 8 December 2010, which found that six LCD panel producers had
entered into a world-wide price fixing cartel and had implemented
that cartel within the EU. The Commission had been satisfied
that the agreement related to direct and indirect sales of LCD
panels to companies in the EU. It also found that the
participants in the cartel had sought to implement the cartel
within the EU, even if price negotiations took place outside the
The question Mr Justice Morgan had to address was whether it
could be shown that iiyama suffered harm by reason of the
cartel's implementation in the EU. The focus of
iiyama's claim, however, had been on harms it suffered as an
indirect purchaser downstream from the implementation of the cartel
in Asia. Putting the case that way, Mr Justice Morgan stated
that without more iiyama's claim would fall outside the
territorial scope of Article 101 TFEU. In this regard,
Mr Justice Morgan referred to a recent High Court ruling that had
struck out a similar case brought by iiyama against cartelists in
the cathode-ray tube sector. Iiyama v Schott  EWHC
1207 (Ch). In that case, Mr Justice Mann had ruled that even
if sales outside the EU have an indirect effect within the EU,
those sales are not an implementation of the cartel within the
Ultimately, iiyama's case was saved by one paragraph in its
draft Amended Particulars of Claim. In that paragraph, iiyama
argued that if the cartel had not been implemented within the EU
then LCDs and products incorporating LCDs would have been available
within the EU at prices which were not inflated by the world-wide
cartel. Iiyama further submitted that if the cartel had not
been implemented in Europe, it would have collapsed elsewhere in
the world. Mr Justice Morgan ruled that theory of the case
was pleadable even though there appeared to be little evidence
supporting the plea.
The judge rejected other arguments submitted by the defendants,
including the defendants' position that indirect losses claimed
by iiyama were not sufficiently direct or proximate to the losses
suffered by the LCD panel purchasers in Asia. Mr Justice
Morgan did note, however, that this point raised important
questions of policy as to the operation of Article 101 TFEU,
which may require a reference to the EU Court of Justice.
In the wider context, the case shows that the UK courts remain
open for antitrust damages cases based on cartels with a centre of
gravity outside the UK or the EU. It also shows that
defendants face a steep hurdle to have cases struck out due to lack
of nexus with the UK.
The UK's Competition and Markets Authority (CMA) is consulting on changes to the UK merger regime proposed to reduce the burden of investigations into mergers where the parties operate in small markets.
The UK Competition and Markets Authority ("CMA") has a duty to refer a transaction for an "in depth" phase 2 investigation in instances where it believes that there is a realistic prospect of a transaction resulting in a "substantial lessening of competition", subject to certain exceptions.
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