Availability of private enforcement in respect of competition law infringements and jurisdiction
Scope for private enforcement actions in the United States
For longer than any other jurisdiction, the United States has maintained that private parties injured by anti-competitive conduct may seek legal redress in court for violations of competition laws – referred to in the US as antitrust laws. Private parties can sue for injunctive relief or damages sustained as a result of an antitrust violation. The action may be tried to a jury and, if the plaintiff prevails, the damages are trebled as a matter of law. In addition, the plaintiff can recover its reasonable attorney’s fees.
There is no requirement that a finding of infringement be issued by a regulatory authority prior to the private damage claim (although, as explained below, a final judgment in a government criminal or civil action or a conviction obtained on a guilty plea may be used as prima facie evidence of infringement in a subsequent private action).
Subject matter jurisdiction
Subject matter jurisdiction is satisfied in a US federal court by either: (i) federal question jurisdiction; or (ii) diversity jurisdiction. Federal question jurisdiction means that the cause of action is provided for under a US federal statute. Diversity jurisdiction means that the plaintiff and defendant have diverse citizenship (i.e., the plaintiff and the defendant are citizens of different US states) and the amount in controversy exceeds USD75,000. Many private antitrust cases are brought as class actions. Diversity jurisdiction in these cases is defined by the Class Action Fairness Act (“CAFA”) and one should consult with counsel regarding CAFA’s requirements immediately when such a case is brought.
When federal question jurisdiction is present, a claimant may also bring causes of action under state law if such causes of action arise out of the same nucleus of operative facts. This is called pendent jurisdiction. Thus, when diversity jurisdiction is present, a plaintiff may bring state law claims that could not be otherwise brought in federal court. Generally, private damage actions under federal law can only be brought by direct purchasers. However, more than 30 states have laws that permit indirect purchasers to sue; such state claims are typically joined in the federal action by pendent jurisdiction.
Sometimes referred to as an issue of subject matter jurisdiction, and sometimes not, the issue regarding whether US competition laws apply to conduct outside of the US is an increasingly key issue in private antitrust litigation in the US. For the most part, this is governed by the Foreign Trade Antitrust Improvements Act (“FTAIA”). The US Supreme Court addressed this issue in F. Hoffmann-La Roche Ltd. v Empagran S.A., 542 US 155 (2004). The law on the FTAIA is currently in flux and federal judicial decisions are not consistent as to the FTAIA’s scope, or whether it is jurisdictional or comprises an element of a plaintiff’s claim (though more recent cases are taking the latter approach).
For many years, it has been clear that conduct outside the US to fix the price of goods sold in the US has been subject to the Sherman Act. This is called “import commerce.” The FTAIA does not apply to import commerce. It applies to conduct outside the US, e.g., the fixing of a worldwide price, if that conduct has a substantial effect on US commerce, and there is a causal link between the foreign price and the injury to US purchasers. It is the causal link which has been the hardest element for claimants to satisfy, especially where the product is first purchased outside the US.
The issue of whether the FTAIA is a question of subject matter jurisdiction or simply a defense to an antitrust action – while seemingly arcane – is an important one because a claimant bears the burden of establishing subject matter jurisdiction, while a defendant bears the burden of proving a defense, and often courts will not require a plaintiff to prove all of the elements of its claim until discovery from defendants has been had.
Section 12 of the Clayton Act provides:
“Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.” [15 U.S.C. § 22 (1997)]
The clause before the semi-colon is a venue provision (describing districts where an antitrust lawsuit against a corporate defendant may be heard). The clause following the semi-colon is a service of process provision (describing where a corporate defendant may be served with papers that bring it before a particular court). In addition, the second clause’s final phrase, “wherever it may be found,” allows worldwide service of process upon a corporate defendant if that corporate defendant is subject to Section 12’s language. Service of the initial summons and complaint on a company located in a country that is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (“Hague Service Convention”), must usually be made pursuant to the Convention. Often, however, courts pressure defendants to waive use of the Hague Service Convention due to its inherent delay in US proceedings.
In addition, there is a separate venue statute that is broader for non-US defendants, permitting venue over such defendants in any district (see 28 U.S.C. § 1391(d)) (“alien venue statute”). If claimants can use the alien venue statute in combination with Section 12’s service of process provision, claimants can sue a non-US corporate defendant in federal court anywhere in the United States, subject to constitutional limitations, and serve that defendant anywhere in the world. However, if Section 12’s worldwide service provisions are limited to cases where venue exists under Section 12’s first clause, claimants will be far more limited in their choice of forum. The majority view in the US is that worldwide service, pursuant to the clause in Section 12, is available in antitrust cases generally against corporate defendants, and that a claimant can use it in conjunction with the alien venue statute.
Proper service of process
A defendant may properly be served with a claim wherever it may be found (including any place outside the US). 1
The Federal Rules of Civil Procedure allow for service at any place not within any judicial district of the US, provided that the method of service falls within one of the categories specified:
i) any internationally agreed means of service that is reasonably calculated to give notice of service (such as those authorized by the Hague Service Convention);
ii) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
a) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;
b) as the foreign authority directs in response to a letter rogatory or letter of request; or
c) unless prohibited by the foreign country’s law, by:
1) delivering a copy of the summons and the complaint to the individual personally; or
2) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or
iii) by other means not prohibited by international agreement, as the court orders. [Fed. R. Civ. P. 4(f).]
A claimant must be able to establish that it is a proper party to bring a private damages claim. This is generally referred to as standing. In order to establish standing, the claimant must establish that it has been injured in fact and that its injury is not too remote.
The indirect purchaser rule
US federal law provides for a damages remedy in price-fixing actions only to direct purchasers, not indirect purchasers. The rationale for this rule, known as the “indirect purchaser rule” relates to the Supreme Court’s decision that pass-on would not be allowed as a defense in an action for violation of the Sherman Act. In order words, a defendant may not argue that a claimant should not recover merely because the claimant passed on to its customer all or some of the illegal price increase that was caused by the defendant’s conduct. In Illinois Brick Co. v Illinois, 431 US 720 (1977), the US Supreme Court observed that attempting to determine how most of the overcharge was passed along to the claimant’s customer is famously difficult and also can be affected by factors not relating to defendant’s antitrust violation – in other words, other market forces. Thus, if a defendant cannot use pass-on as a defense, then only a direct purchaser may sue for damages – thereby also eliminating the danger of duplicative recovery from the defendant.
After the Supreme Court adopted the rule that only direct purchasers could sue for damages under the US antitrust laws, many states adopted their own law to allow indirect purchasers to sue for violation of that state’s antitrust law. Today, more than 30 states and the District of Columbia have recognized an indirect purchaser cause of action either by statute or case law. The Supreme Court has held that these statutes and case decisions are not preempted by US federal antitrust law. In an indirect purchaser claim, the claimant does bear the burden of showing that the illegal overcharge was passed on to it and in what amount.
In light of the above, a defendant in the US is typically faced with not only a claim by direct purchasers under US federal antitrust law, but also claims from indirect purchasers under multiple state laws. All of these claims are typically consolidated into one proceeding under the doctrine of pendent jurisdiction, by removal from state courts pursuant to the Class Action Fairness Act, and/or by proceedings before the Judicial Panel on Multidistrict Litigation, at least for pre-trial purposes.
Applicable limitation periods
Limitation periods for private causes of action are governed by both federal and state antitrust laws. Under Section 4 of the Clayton Act, which authorizes private rights of action, the statute of limitation is four years from when the cause of action accrued. However, the running of that limitation period can be deferred or “tolled” based on different types of equitable or statutory tolling.
The most common type of equitable tolling is alleged fraudulent concealment, which provides that the limitation period will be stayed until the claimant discovers the violation, provided that the claimant can prove that: (i) the defendants took active steps to fraudulently conceal their illegal conduct; and (ii) the claimant exercised reasonable diligence in trying to discover the violation, given the circumstances. Under (ii), the claimant cannot turn a blind eye or otherwise ignore facts which would cause it to inquire further into defendants’ conduct. Such facts are sometimes referred to as facts which put the claimant on “inquiry notice,” meaning that the facts put the claimant on notice to inquire further.
Another type of equitable tolling is class action tolling, which provides that the limitations period as to any entity’s or person’s claim which falls within the putative class does not run during the pendency of a class action. However, if the entity or person opts out of the class action or if class certification is finally denied (after any appeals are exhausted), then the limitation period begins to run again.
Finally, there is statutory tolling, which provides that the limitation period applicable to a private civil competition action is tolled during the pendency of a criminal antitrust action, and for one year after that action concludes – either by a guilty plea or a final conviction (after all appeals are exhausted). The mere pendency of a criminal antitrust investigation is not enough to toll the limitation period. The investigation must end in a guilty plea, indictment or a conviction in order for the statutory tolling to attach.
The rules regarding appeals are the same for private damage actions as for other private civil actions. As a general rule, a party cannot appeal a ruling unless there is a final judgment in the case. So, for example, while a claimant can appeal the dismissal with prejudice of a case, a defendant cannot appeal the denial of a motion to dismiss, until there is a final judgment in the case, usually at either the summary judgment stage or after trial. A ruling disposing of a case, consolidated with others in a multidistrict litigation, is considered a final judgment in the case and may be appealed.
There are a few exceptions to this general rule. First, under 28 U.S.C. Section 1292(b), a party may seek interlocutory appeal of an order if there is a controlling question of law, as to which there is a difference of opinion and a ruling on such issue would materially advance the litigation. Such a motion must be first made to the district court. If that court denies the motion, no interlocutory appeal is possible. If that court grants the motion, then the matter is submitted to the Court of Appeals, which can grant or deny leave to appeal.
Second, as mentioned below at section 4 on class actions, a party may seek to appeal, pursuant to Rule 23(f) of the Federal Rules of Civil Procedure, a denial or a grant of class certification. That petition is made directly to the Court of Appeals. If that court grants the petition, then the appeal proceeds like any other appeal.
Class actions for antitrust damages available in the US
The US has had class actions at the federal and state levels for many years. Federal class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. A claimant can move to certify a class at any time, although the most common practice and sequencing is for the class certification phase to follow any initial motions challenging the sufficiency of the complaint and challenging jurisdiction.
The class certification issues are sometimes bifurcated from the merits phase of a case. If class certification is bifurcated from the merits phase, then discovery relating to class certification (sometimes called “class discovery”) proceeds before discovery on the merits. However, under recent case law, class and merits discovery are likely to proceed at the same time.
Usually, the key issue on a class certification motion is whether there is a class-wide methodology for proving injury and whether the type of injury claimed is consistent with the facts presented on the merits of the alleged violation. This is often addressed by expert opinions for each side.
In order to certify a class action under Rule 23, a claimant must establish five requirements: (i) the number of members of the proposed class are so numerous that it is not practical to join them all in the same action; (ii) the claims of the members of the proposed class present common questions of law and fact; (iii) the claims of the members of the proposed class are typical of each other; (iv) the representatives of the proposed class can and will adequately represent the interests of the members of the proposed class; and (v) common questions of law and fact with respect to the class members’ claims predominate over any individual questions presented by those claims.
The chief battleground for class certification is often predominance. If common questions of law and fact do not predominate over individual questions, then the efficiency that a class action is supposed to achieve is not realized.
Under Rule 23(f), a grant or denial of class certification may be appealed directly to the Court of Appeals, without obtaining an order from the district court judge certifying its ruling as appropriate for an interlocutory appeal under 28 U.S.C. 1292(b). However, the Court of Appeals has discretion as to whether or not to accept an appeal under Rule 23(f). Finally, even if the Rule 23(f) appeal is accepted, it will not necessarily stay the case at the district court level, unless the defendants seek and are granted a stay by either the district court or the Court of Appeals.
Conduct of proceedings and costs
Burden of proof
The burden of proof applicable to private damages claims is the same as applicable to most civil claims – the claimant must prove the elements of its claim by a preponderance of the evidence.
A claimant must prove not only conduct violating the antitrust laws, but also that such conduct was the proximate cause of its injury. The claimant must also prove the amount of its damages to a reasonable certainty.
A prior guilty plea by a defendant in a related criminal proceeding can be used: (i) as collateral estoppel to prevent the defendant from denying the existence of the violation; and (ii) even if not collateral estoppel, as evidence that the trier of fact can consider in determining liability. A government judgment made by consent (as compared to a guilty plea) or on the basis of a nolo contendere plea (no contest, but no admission) may also be relied upon as prima facie evidence of liability, provided that some testimony was taken from the defendant before the judgment was entered.
Joint and several liability of cartel participants
Defendants in an action under US antitrust law alleging a violation of Section 1 of the Sherman Act face joint and several liability for each other’s Section 1 violation. In other words, one defendant can be held liable for the entire scope of damages caused by all of the defendants if conspiracy or agreement is proven among them. However, notwithstanding that a Section 1 violation creates joint and several liability, defendants cannot seek to join others to claims brought against them or claim contribution from each other toward any damages awarded against them in respect of such violations. Contribution to or indemnification of loss has been held to violate public policy.
In addition, when one defendant settles, that does not reduce the overall damages in direct proportion to the settling defendant’s sales or market share during the period of the alleged conspiracy. Instead, the set-off for a defendant’s settlement occurs only after a judgment adverse to the remaining defendants is issued, and only in such amount as the settling defendant actually paid out. This means that the set-off only occurs after the claimants’ damages are trebled, as a claimant’s damages are trebled automatically when the claimant obtains a judgment against the defendants.
This phenomenon – the effect or reduction of a defendant’s settlement occurring only after trebling – has the practical effect of leaving the non-settling defendant or defendants liable for nearly all of the damages caused by all defendants’ conduct. This can create significant pressure on a defendant to settle. It can also create a race among defendants to settle first. One way in which defendants try to combat this pressure is to enter into a judgment sharing agreement. Such agreements are legal and are usually confidential; however, negotiating such judgment sharing agreements can be challenging, depending on the companies involved. Attempts to discover whether defendants have executed a judgment sharing agreement have generally been rebuffed.
A judgment sharing agreement typically provides that, if a defendant settles, it must secure the agreement of the claimants to remove its sales from the case – thereby removing the joint and several liability attributable to the settling defendant’s sales. If it cannot secure that agreement, then the settling defendant is liable, by the contractual agreement, to reimburse any defendants that are subject to a judgment for that portion of the judgment that is attributable to the settling defendant’s sales (less the value of the settling defendant’s settlement, which would be offset after trebling in any event). Obviously, a judgment sharing agreement, operating in this way, provides a significant disincentive for any defendant to settle separately from the group of all of the defendants.
Documents and evidence that can be used by claimants (for example, investigation evidence) and legal privilege
The scope of discovery in a private damage action is extremely broad, although Federal Rule of Civil Procedure 26(b)(1), which defines the scope of discovery in civil actions, was amended in December 2015 to add proportionality considerations that are intended to limit overly broad and unduly burdensome discovery. Under revised Rule 26(d)(1), parties “may obtain discovery regarding any non-privileged mater that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” The practical effect of the newly added proportionality provisions has not yet been determined, but it is likely that even the amended scope of discovery would typically include documents and electronic records produced in a prior government investigation (unless a court orders otherwise as explained below) plus hundreds of thousands, perhaps millions, of emails and other electronic records, depending on the facts of the case.
As a general rule, in a private damages action, a claimant can discover relevant facts, and electronic records that exist independently of a government investigation. The mere fact that the government asked for the fact or document, or that the fact or document was disclosed to or produced to a government authority in response to a subpoena or any other request pursuant to a government investigation, does not prevent the claimant from discovering the fact or document. Nor does the scope of the government investigation limit what can be discovered in a private antitrust damage action.
The only limitations on a claimant in terms of discovery of or relating to the government investigation are: (i) when the claimant’s discovery request is phrased in such a way that it would require that the defendant reveal what the government had asked for in its investigation; and (ii) when the claimant seeks the government’s notes and other work product generated in its investigation.
In addition, a claimant in a private damages action might apply for a defendant to produce any written statement provided to the foreign regulatory authorities. There is no general rule protecting foreign regulatory material from discoverability and it has been ordered to be disclosed in some cases. 2 However, discovery has also been refused in a number of cases on grounds including comity and the doctrine of foreign investigatory privilege. 3 Recently, for example, the US District Court for the Northern District of California, in determining whether Hitachi ought to be compelled to produce foreign investigation documents in the TFT-LCD (Flat Panel)
Antitrust Litigation, explained that five factors should be considered when determining whether to order discovery of foreign regulatory documents:
i) the importance of the documents to the litigation;
ii) the specificity of the claimant’s request;
iii) whether the documents originated in and are located in the US;
iv) whether the claimant has alternative means of obtaining the information contained in the documents; and
v) whether the interest of the US in enforcing its antitrust laws outweighs the interest of the foreign regulator in maintaining confidentiality of the documents.
In Hitachi’s case, the European Commission wrote to the US District Court expressing concern that the documents produced or submitted in respect of a leniency application should be kept confidential; this concern was identified by the US District Court as a relevant factor in denying the motion to compel discovery in that case. 4 The TFT-LCD (Flat Panel) judgment preceded the Court of Justice of the European Union’s judgment in Case 360/09 Pfleiderer (which found that access to leniency documents might be granted by national courts in principle) and the joint statement of the heads of European Competition Authorities on May 23, 2012 as to the importance of protecting leniency documents from disclosure. As such, it is unclear whether US courts will be prepared to take into account these general statements as expressions of the interest of European regulators in maintaining confidentiality of investigation documents or if foreign regulatory authorities must continue to make submissions in each case as to the interest of maintaining confidentiality in the documents subject to request.
Expert discovery – the discovery of an expert’s opinion and likely testimony – is a significant part of discovery in a private damages action. In some of the larger antitrust class actions, there may be multiple experts on each side – claimants and defendants – opining on issues relevant to class certification, the existence of the alleged conspiracy, the fact of injury, and the quantification of damages. Typically, a claimant will provide an opening expert report, the claimant’s expert’s deposition will be taken, the defendant will then provide its expert’s report, and then its expert’s deposition will be taken. Often, but not always, the claimant will be allowed to provide a rebuttal report by its expert, and if such a report is allowed, a second deposition of the claimant’s expert will be allowed on the rebuttal report.
As a general rule, pre-action disclosure is not available for private actions under US or state antitrust law. One addendum to this general rule is that recipients of amnesty from criminal fines must also – in order to obtain single damage awards in civil claims (de-trebling) and the elimination of joint and several liability – cooperate with claimants’ counsel in private damages actions.
In 2004, the US Congress passed the Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”), which provides that an amnesty recipient is entitled to the elimination of joint and several liability and treble damages, so long as it cooperates with claimants in any follow-on private civil antitrust actions. Cooperation is defined as producing documents upon request, including those produced to the US Department of Justice, and making witnesses available for depositions in the US.
Based on ACPERA, it is possible that private claimants could approach an amnesty recipient (if they are able to determine which company it is) prior to filing a complaint and ask for the above cooperation.
Average length of time from issue of claim to judgment in the US
While a non-antitrust civil action in federal or state court might take as long as two years to litigate, antitrust civil actions in the US can take significantly longer, depending on the case and the number of parties involved.
For example, in an antitrust case involving two companies, the case might be concluded, through either summary judgment or trial, within two years. If there is an appeal, it could take an additional one year. However, typical antitrust class actions generally take longer – perhaps three years or more to reach their conclusion, with an additional year for an appeal.
Numerous class actions consolidated into one proceeding – referred to as a Multi-District Litigation (“MDL”) – may take four to six years because of the number of parties, the number of issues, and the need for different tracks for direct and indirect purchaser actions.
Average cost from issue of claim to judgment in the US
While it is difficult to predict the legal fees that will be incurred in a private damages action in the US, there are some observations and broad parameters to consider.
First, as a general rule, there is the distinction between single actions and class actions. Class actions are often more expensive because they involve an additional phase of briefing and discovery. Class actions may also involve an appeal in the middle of the case, for example, on class certification or on a potentially dispositive legal issue.
The countervailing consideration in comparing single actions to class actions is the fact that class actions involve multiple defendants that can share the work on various portions of the case common to all defendants if a joint defense agreement is entered into.
In addition, the above parameter does not include costs, which continue to increase significantly. Chief among these costs are: (i) outside electronic discovery vendor fees; and (ii) expert fees.
Finally, a plaintiff, whether an individual or an individual representing a class, may recover his or its attorney’s fees and costs if the plaintiff prevails.
Third party/alternative funding
In the US, it is possible for a private damages action to be brought by an attorney who agrees with its client to handle the case on a contingent fee basis. This means that, unless it prevails (by judgment or settlement), the claimant is not required to pay any legal fees or costs incurred in pursuing its case. Most antitrust class actions are handled on a contingent fee basis on the plaintiff side, usually for a fee of one-third of the recovery.
Alternative methods of dispute resolution
Alternative methods of dispute resolution – arbitration and mediation – are available in antitrust actions. The central question for arbitration is whether there is an arbitration clause between the parties and, if so, whether the claim falls within the scope of the arbitration clause.
In addition to binding arbitration, it is also possible that an arbitration clause might contain a class action waiver. Depending on the circumstances, such class action waivers may be enforceable.
Availability of damages and quantification
As a general rule, if a claimant can establish antitrust injury – injury to competition in a relevant market – and that in fact such injury to competition caused injury to the claimant, then the claimant may recover its damages caused by the violation. The claimant need not prove that the antitrust violation was the sole cause of its damages, but it must prove that the violation was a significant cause of its damages. Further, defendants cannot argue, in respect of direct purchasers, that damage has been passed on by way of higher prices charged to the end-consumer (meaning that the direct purchaser has suffered no loss). However, for those states that permit indirect purchaser actions, an indirect purchaser may recover if it can show the extent to which it has absorbed the loss suffered, rather than passing it on to its own customers.
The fact and quantification of damages are almost always proven by expert opinion and testimony. There are rules for the admissibility of expert opinion, with the seminal Supreme Court decision in Daubert explaining the approach to be taken to expert evidence under the Federal Rules of Evidence. Generally speaking, the trial judge must ensure that: (i) the expert is qualified in the field relevant to the matters in issue on which he has been asked to testify; (ii) the data used supports the conclusions drawn in the expert’s opinion; (iii) the methodology applied is sufficiently reliable (or deemed scientifically valid); and (iv) the testimony assists those trying the case to understand the evidence and determine the issues. The Daubert principle has led to the exclusion of expert economic evidence submitted to demonstrate damage resulting from a competition infringement where the expert did not apply recognized methods of assessment, or failed to do so properly.
Treble and exemplary damages
Treble damages are automatic for any judgment under the US antitrust laws. They are also available under some state competition laws. Only a violation and some damages need be shown. There is no special or additional showing necessary in terms of egregious conduct.
Availability of interim or final injunctions in respect of an alleged competition law infringement
Injunctive relief seeking to prevent further antitrust violations is nearly always a component of a private damages action. In most class actions, it is not an important part of the case because the conduct complained of will usually have been stopped either when a government investigation is commenced or when the class action is first filed.
However, where the action attacks the legality of an ongoing business method, the request for injunctive relief might have greater force. The same is true in cases where injunctive relief is sought to prevent a company from continuing alleged sham patent or other litigation against a rival, in violation of US antitrust law, or where relief is sought to enjoin a merger.
Finally, injunctive relief is an important distinguishing factor in some class actions because predominance, while required for class actions seeking damages, is not required in class actions seeking injunctive relief.
2 See, for example, In re Vitamins Antitrust Litigation, Misc. No. 99-197, Docket No. 3079 (D.D.C. May 20, 2002).
3 See, for example, In re Air Cargo Shipping Services Antitrust Litigation, MDL No. 1775 (E.D.N.Y), TFT-LCD (Flat Panel) Antitrust Litigation, No. M: 07-1827 (N.D. Cal 2011); In re Methionine Antitrust Litigation, No. C-99-3491, MDL No. 1311 (N.D. Cal June 17, 2002); In re Payment Card Interchange Fee (E.D.NY 2010); In re Rubber Chemicals Antitrust Litigation 486 F. Supp. 2d 1078 (N.D. Cal 2007).
4 Assertions of confidentiality by the foreign regulatory authority were also considered relevant in In re Payment Card Interchange Fee (E.D.NY 2010), and In re Rubber Chemicals Antitrust Litigation 486 F. Supp. 2d 1078 (N.D. Cal 2007).