Antitrust Litigation 2024 Comparisons

In Mexico, there is no legislative framework for private antitrust litigation.

Pursuant to the Mexican Constitution and the Federal Antitrust Law, only the Federal Economic Commission (COFECE) and, for the broadcasting and telecommunications sectors, the Federal Telecommunications Institute (IFT), may investigate and sanction anti-competitive practices.

However, individuals may report conduct that constitutes a violation of the Federal Antitrust Law. The competition authority will then analyse the reports or complaints to determine if there are elements to initiate an investigation.

If, after an investigation and trial-form proceedings are concluded, the Board of Commissioners sanctions an economic agent for having carried out anti-competitive conduct, the economic agent may file a constitutional appeal (amparo lawsuit). The purpose of this appeal is to determine whether the competition authority’s actions and decisions are in accordance with the Constitution; specifically whether the decision violates the fundamental rights of economic agents.

Likewise, if the complainant does not agree with the sense of the decision of the Board of Commissioners, they may file an amparo lawsuit in order to challenge the decision of the competition authority.

In this regard, unlike other countries, Mexican courts do not determine whether a violation of the Federal Antitrust Law has been committed.

However, as will be described in 8. Damages, individuals may seek compensation for damages arising from anti-competitive practices by approaching federal courts specialised in antitrust matters.

In an amparo trial, it is noteworthy that for the most part, judges and courts choose to grant deference to antitrust authorities, not going into the merits of the cases. This approach harms the development of antitrust law and the creation of precedents.

In this sense, when there are resolutions favourable to individuals, these are mostly granted on matters of form rather than substance. The authors hope that with the recent changes in US Supreme Court precedents (Chevron doctrine), the courts in Mexico will move away from the deference that, to date, has been given to antitrust authorities.

With respect to claims for damages, notwithstanding the recent approval of the National Code of Civil and Family Procedures, the procedure for claims and class actions has not been modified.

It should also be noted that, despite the possibility of claiming damages derived from the commission of anti-competitive practices, there have been few lawsuits of this type, which have not concluded with a guilty verdict or have not yet concluded, so there are no judicial precedents that have motivated the modification of legislation regarding claims derived from antitrust cases.

As mentioned in 1.1 Current Framework for Private Antitrust Litigation, there are no private antitrust claims in Mexico. The statutory basis for a claim for damages for breach of competition law is Article 134 of the Federal Economic Competition Law. In Mexico, only when legal procedures have been exhausted to challenge the resolutions of the antitrust authorities, is that it is possible to go to the specialized antitrust courts to claim damages.

Thus, it is important to note that only when a resolution of the antitrust authorities is unappealable, is it possible to initiate a claim for damages. This means that there are no private actions.

All cases are heard, without exception, by specialised competition judges and courts.

In the event of recusal or excuse, cases are transferred to a different judge or court, but always specialised in antitrust, through an expedited procedure. It is clarified that it is not possible and therefore there is no procedure for a non-specialised court or tribunal to hear a case in which the Antitrust Law is applied regarding claims for damages.

The NCA’s decisions are not binding on the courts, nor do they create precedent for the courts. The function of specialised judges and courts is to control legality and determine whether the decisions of the Mexican Antitrust Authorities violate the fundamental rights of economic agents.

Regarding claims for damages, the decision of the competition authorities must be considered by the courts as conclusive proof of the existence of the unlawful act. The courts cannot ignore the decision or accept evidence to discredit it.

The antitrust authorities can intervene and may, in fact, legitimately file class actions claiming damages. However, to date, no NCA has exercised this power, which is a matter of concern from the point of view of consumer rights protection. This is notwithstanding the multiple decisions sanctioning cartels or economic agents for abuse of dominance.

On the other hand, the resolutions of foreign antitrust authorities do not have any legal impact on the specialised antitrust courts regarding lawsuits for damages claims, however, in the absence of a sufficient number of domestic precedents, the decisions of foreign NCAs have been used as a “guide” or as doctrine.

There have been few cases regarding claims for damages, and these have not been resolved in favour of the plaintiff or are still pending resolution. Consequently, no judgments have been issued for damages against those who have violated the antitrust law.

In a lawsuit in which damages are claimed for the commission of anti-competitive conduct, the plaintiff must demonstrate the following.

• The realisation of anti-competitive conduct; an unchallengeable decision of the NAC.
• The damages derived from such unlawful conduct.
• The causal nexus – ie, it must be proven that the damage is a direct and immediate consequence of the unlawful act.

In this sense, the probative value of the decision of the competition authority is conclusive – ie, in relation to the unlawfulness of the conduct – and no contrary evidence is admissible.

On the other hand, from the perspective of the authors, there is no legal presumption applicable to claims for damages. Thus, the burden of proof lies with the plaintiff, who must demonstrate, through direct evidence, the damage caused by the anti-competitive conduct and that such damage is a direct and immediate consequence of the unlawful act.

In Mexico the “pass-on” defence is regulated by the Federal Civil Code and the Federal Code of Civil Procedure. These establish that the claimant for damages must prove that the alleged damage was caused to them, that there is a causal link between the wrongful act and the damage, and that the damage is directly attributable to the party held liable by the antitrust authority. Thus, the burden of proof lies with the plaintiff and the standard of proof is high.

For example, it is possible for the defendant to allege that the plaintiff did not suffer any damage as a result of an anti-competitive practice, having transferred the overcharge to the next link in the production chain.

Antitrust authorities have ten years to initiate an investigation of an anti-competitive practice, counted from the date the practice was committed or ceased.

On the other hand, to initiate a claim for damages, there is a period of two years from when the damage was caused, or from when the affected party became aware of the existence of the damage.

This limitation period shall be interrupted from the time the competition authority initiates the investigation and until the NCA’s decision is unchallengeable. 

In Mexico, there is no private antitrust litigation. Regarding “public” procedures, in the experience of the authors, the processing of a case before the Mexican antitrust authorities, from the filing of the complaint to the issuance of the resolution, can take at least three-and-a-half years. In addition, the trial before a specialised judge could take two years and the review by the superior specialised court could take at least one more year. If the Supreme Court reviews matters of constitutionality of the Antitrust Law, it could add at least one more year, and in total the procedures could take approximately seven-and-a-half years.

Article 134 of the Antitrust Law states that claims for damages may be filed until the decisions of the antitrust authorities are final. It is clarified that the limitation period to claim damages is only two years, from the time the violation of the Antitrust Law is committed or from when the affected party became aware of the existence of the damage. However, this period is suspended from the time the antitrust authorities initiate an investigation and resumes when the resolution is unappealable. There is no possibility for the parties to request the antitrust authorities to suspend the proceedings.

On the other hand, considering that trials for claims for damages are comprised of two instances, one before a federal specialised judge, as well as, where appropriate, the amparo lawsuit that is promoted against the judgment of the court, claims for damages may have a duration of at least three years.

Currently, the Federal Code of Civil Procedures and, once it enters into force, the National Code of Civil and Family Procedures, establish the procedural rules for claims for damages and evidentiary issues.

An opting-in system has been adopted – ie, any person who does not join a class action, despite having suffered some damage derived from an anti-competitive conduct, will not be able to obtain any compensation from the exercise of the class action.

Although persons who have not joined the class action may still claim damages individually, the small amount of compensation often available on an individual basis can serve as a disincentive to pursue legal action against the economic agent declared liable by the competition authority.

As noted, there are no antitrust damages verdicts in Mexico to date. However, both directly and indirectly affected parties – ie, any other person, can file claims for damages, provided that the damage is an immediate and direct consequence of the anti-competitive conduct.

The basis for this is Article 134 of the Antitrust Federal Law, which establishes that individuals who suffered damages or losses due to anti-competitive conduct may go before specialised courts to defend their rights, until the decisions of the antitrust authorities are final.

The opinion of the authors is that anyone can file complaints because the legislature deemed it important to broaden the scope for pursuing such cases. Therefore, regardless of the influence of the offenders on those directly or indirectly affected, illegal practices can be denounced, and these do not go uninvestigated.

The Federal Code of Civil Procedure states that the person who exercises the common representation must be part of the collectivity consisting of at least 30 people. Civil associations or non-profit organisations, legally constituted, at least one year prior to the time of filing the action, whose corporate purpose includes the promotion or defence of the rights and interests of the matter in question and that comply with the requirements established in the Federal Code; the Office of the Attorney General of the Republic; and the Federal Institute of Public Defender’s Office may be certified.

According to the Federal Code of Civil Procedure, at the certification stage, the judge must determine whether the claim complies with the requirements established in that norm (for example, the precision of the diffuse, collective or homogeneous individual right that is considered affected and the considerations and facts that support the convenience of substantiation by collective means instead of individual action).

Also, during this stage, the judge must analyse whether or not certain legitimation requirements were met, for example: (i) whether the acts complained of have harmed the consumer due to anti-competitive conduct based on the resolution issued by the antitrust authorities; (ii) whether there is a coincidence between the object of the action brought and the affectation suffered; and (iii) whether the action is not time-barred.

If the judge determines that these requirements have not been met, the class action will be dismissed.

A collective action may be brought by a community, such as consumers, or by companies, who were directly or indirectly affected, namely direct competitors or companies in the value chain.

In Mexico, there is only one Antitrust Law, the Federal Economic Competition Law, which it is applicable to the entire national territory and only the Federal Economic Competition Commission and the Federal Telecommunications Institutes have jurisdiction over antitrust cases.

The Antitrust Law addresses concentrations (M&A), anti-competitive practices (abuses of dominance and cartel activity), investigations to determine the existence of essential inputs and barriers to competition, as well as conditions of effective competition. It also includes provisions for issuing opinions on cross-participation and for the participation in public tenders.

According to the Mexican Constitution, the only means of defence against the Antitrust Law and the acts of the antitrust authorities is provided for by the Amparo Law, through amparo proceedings before specialised judges and courts.

On the other hand, as mentioned above, only federal specialised antitrust courts can hear claims for damages arising from anti-competitive behaviour.

The applicable laws for processing the lawsuit and deciding on the merits are the Federal Civil Code and the Federal Code of Civil Procedures.

In the Mexican Antitrust Law, there are no discovery procedures, however, in the experience of the authors, and following the US authorities’ practice, the competition authorities, informally, have initiated requests with the characteristics of a discovery.

The attempts of the antitrust authorities to carry out discovery proceedings have not succeeded, since the law firms of the economic agents have successfully exercised the defence that discovery does not exist in Mexican law.

For their part, in proceedings in which damages are claimed, the parties may request the courts to require documents in the possession of any person, subject to certain limitations. This is as long as (i) they are not protected by professional secrecy or are communications that are considered private and, (ii) such communications are related to the claim for damages.

Legal professional privilege is a constitutional right, provided for in Article 16 of the Mexican Constitution.

However, one of the two competition authorities, specifically the Federal Economic Competition Commission, has issued provisions that seek to regulate this constitutional and human right. These provisions establish a procedure through which it is determined whether certain documents that are requested, or that were obtained during a verification visit, are indeed protected by professional secrecy.

As far as it is public and the authors are aware, this regulation has not been challenged in the constitutional courts and it remains pending for the Supreme Court of Justice of the Nation to determine if that authority has the power to issue such regulation.

Regarding claims procedures, the Federal Code of Civil Procedure provides that those individuals required to maintain professional secrecy are not obliged to present documents related to the party with respect to whom the professional privilege exists.

Leniency and/or settlement agreements are protected in the Antitrust Law and in the guidelines and regulations that the antitrust authorities have issued. However, there have been situations, especially when other authorities are involved, such as prosecutors’ offices responsible for investigating the commission of crimes or those responsible for combating corruption, in which the identity of leniency agreements has been revealed. Therefore, antitrust authorities should be pressured to properly safeguard the information of those seeking immunity, when they provide information to other authorities.

However, under Mexican law, proving crimes related to violations of the Antitrust Law requires a higher standard of proof than that required to prove a violation of the Antitrust Law.

Testimonies are subject to examination and cross-examination. If someone refuses to testify, without reasonable cause, they may be fined or even subject to administrative arrest. 

While there are certain parameters for factual witnesses to be considered reliable, it is generally necessary for testimony to be bolstered by the existence of other evidence for factual witnesses to support liability for antitrust violations.

Since the Mexican Antitrust Law provides for the opinions of expert witnesses as evidence, in the authors’ experience, in 99% of cases, the Mexican antitrust authorities do not validate expert testimony. It is not taken as evidence that can contribute to demonstrate the arguments of the investigated party or that aims to prove its point.

These testimonies are submitted in writing and in response to questions from companies and antitrust authorities and prosecutors.

In court, experts (who must only prove that they are experts in the field), present their testimonies separately and there are no alternative methods for presenting expert evidence.

In Mexico, there are no verdicts for damages, either in individual actions or in class actions. In addition to the above, exemplary or punitive damages are not available in current Mexican laws.

However, in civil matters, there is at least one precedent in which the Supreme Court of Justice of the Nation condemned a company with the payment of punitive damages, so there is the possibility that in antitrust matters, this criterion of the Supreme Court is applied as an exceptional measure in those cases that are considered particularly harmful (as may be the case with cartels).

Mexican laws do not provide for the payment of interest, nor is it known what the criteria of the courts are, since in Mexico there have been no verdicts for damages derived from violations of the Antitrust Law.

However, the authors believe that there is a possibility that the amounts for damages that have been generated must be updated due to the passage of time, in order to bring to present value the damages that the anti-competitive conduct has generated.

Liability is not solidary. It is interesting to note that in the case of the liability of applicants for immunity, this is only reduced by the fine and criminal immunity. However, immunity does not prevent its applicants from being sued for damages, nor is any type of discount applied to this amount, on the grounds that the offender has been granted immunity.

There is no legal basis/procedure for claiming contributions from third parties in Mexican law, nor is there clarity on the criteria used by the courts, as there have been no judgments for damages related to violations of the Antitrust Law in Mexico.

The Antitrust Law and Regulations to the Antitrust Authorities Act, provide for injunctive relief measures during the investigation.

In the judicial procedure for claiming damages, provisions are made for precautionary measures, such as the attachment and seizure of property and conditions necessary to preserve the claim and ensure the effective execution of the judgment, provided that:

• things remain in the state in which they were on the date of service of the order;
• the public order and interest or that of third parties are not affected; and
• rights are not constituted in favour of the applicant, equivalent to those that would be obtained in the case of obtaining a favourable final judgment. This includes, in addition to the possible debtor, those who have the quality of partners and administrators of other people’s assets.

There are no alternative methods to resolve disputes for damages, however, there are some authors who point out the possibility of resorting to arbitration.

In no way will alternative dispute resolution methods be considered as mandatory when deriving from a non-contractual liability, that is, for the violation of antitrust law.

There is no litigation funding in Mexican law. However, in certain cases the payment of expenses and costs may be requested from the party who lost the trial for a claim for damages.

Whether the payment of costs can be awarded is determined in the respective judgment. The need to guarantee expenses and costs is not specifically foreseen in advance. The amount of costs can be determined based on the fee established by law, or based on the fees that the prevailing party has paid to its attorneys during the trial of claim for damages.

In effect, the challenge of the decisions of the Antitrust Authorities is made through the amparo trial before federal specialised judges and courts (appeal through review appeal).

On the other hand, appeals for damages are reviewed by appellate courts, which will only determine whether the respective judgment adequately analysed the existence of the damage, the causal link between the violation of the antitrust law and, if so, whether the amount of the sentence was properly determined. Subsequently, the parties have the possibility of challenging this decision via amparo proceedings, so that a higher court may analyse the constitutionality of the appeal resolution; an amparo trial that, under certain conditions, may be heard by the Supreme Court of Justice of the Nation.

It is expected that the process for electing Supreme Court justices, magistrates and judges will be reformed, potentially allowing them to be elected by citizen vote. The impact of the reform in the designation process is uncertain, but it will be closely monitored, as it requires individuals with sufficient knowledge to determine the existence of damages derived from such a complex matter as economic competition.

Regarding Antitrust Law and its regulations, practising lawyers are waiting for the issuance of a sufficient number of criteria and regulatory provisions that provide certainty, for example, in the determination of relevant markets, market power, etc.

No specific matters focused on digital markets, for the claim of damages for cartel or abuse of dominance are currently foreseen. However, there are ongoing investigations in digital markets that could lead to damages claims in both Mexico and the USA.