Challenges in Cartel Class Actions

Notwithstanding vigorous regulatory action against cartels in Australia and abroad, and the proliferation of antitrust class actions in North America, cartel class actions in Australia have been rare. The cartel class actions brought in Australia to date have faced significant challenges. These challenges are not necessarily unique to cartel class actions; some of the challenges might also arise in a regulatory prosecution or in an individual damages action and indeed probably explain why there are so few successful claims for damages arising out of cartel conduct. However, the complexities can be magnified in the class action context. For example, difficulties in proving covert conduct, satisfying pleadings requirements, and progressing heavily defended actions against multiple, well resourced respondents, are not unique to cartel class actions. But together they may make cartel class actions very difficult to prosecute. This article focuses on three such issues which prominent in cartel class action litigation and likely to have significant consequences for the future conduct of such actions in Australia: pleading of market, jurisdictional issues and assessment of damages. To date, no cartel class action has proceeded to trial in Australia. Over the coming years, developments in private cartel enforcement, be they due to evolving case law, legislative reform or developments in practice, are likely to have significant consequences for the victims of cartel conduct