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Jon Lawrence, Elaine Whiteford, Nov 07, 2007
In Devenish and others v Sanofi-Aventis and others, the English High Court recently held that exemplary damages are not available to claimants bringing actions against cartelists that have already been fined by the European Commission, even if their fine has been commuted due to an immunity or leniency application. Compensatory damages remain available and are the appropriate remedy.
The Background
The Devenish litigation, consisting of five separate but concurrent claims issued in the High Court in 2005, arose as a result of the well-publicized vitamins cartels of the 1990s. The European Commission found that a number of undertakings, including the three main defendants in Devenish, had participated in price-fixing and market-sharing arrangements for many years. One of the defendants, Sanofi-Aventis, had been the whistle-blower and the other defendants (F. Hoffmann-La Roche and BASF) had both had their fines significantly reduced as a result of cooperation under the Commission’s leniency program.
The claimants were all purchasers of vitamins, either directly or indirectly (in the form of animal feedstuffs containing the vitamins) from one or more of the defendants. Two claimants were selected as representative of all claims, one a direct purchaser and the other an indirect purchaser (purchasing vitamins supplied by the three defendant undertakings indirectly as part of animal feedstuffs for poultry). The indirect purchasers then sold chickens and chicken products to supermarkets and others.
The claimants alleged specifically that the defendants’ wrongful actions (i.e. cartel activities) had been carried out in the knowledge of and in willful disregard of the claimants’ rights, in a calculating fashion and/or with the expectation of profiting from them by amounts which exceeded the amounts that would be payable by way of damages to the claimants.
