Antitrust Litigation 2023 Comparisons

Given that Mexico adopted the new Antitrust Law 2014, which replaced the previous iteration from 1992, there has been some development in the interpretation and application of the law, by judges and specialised courts.

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, thereby harming the development of antitrust law and the creation of precedents. In this sense, when there are resolutions favourable to individuals, these are only granted in respect of matters of form and not in terms of substance.

The authors do not perceive important developments in the Mexican jurisdiction, in part because of the deference that the specialised courts grant to the resolutions of the antitrust authorities. This ultimately stagnates judicial activity.

The legal 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 remedies have been exhausted to combat the resolutions of the antitrust authorities, is it possible to approach the specialised antitrust courts to claim damages.

In this way, 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 shares.

As mentioned in 2.1 Legal Basis for a Claim, there are specialised judges and courts and all cases are heard, without exception, by them.

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

Decisions of national competition authorities are not binding. The function of specialised judges and courts is to control legality and determine whether or not the decisions of the Mexican antitrust authorities violate the fundamental rights of economic agents. For their part, the antitrust authorities can intervene; in fact, they are allowed to file collective actions for damages.

In Mexico, the pass-on defence is regulated in the Federal Civil Code and in the Federal Code of Civil Procedure, which establish that the claimant for damages must prove:

• that the damage he alleges was caused to him;
• that there is a causal link between the wrongful act and the damage; and
• that the damage is directly attributable to the one who was held liable by the antitrust authority.

Thus, the burden of proof lies with the plaintiff and the standard of proof is high.

In Mexico, there have been few cases of claims for damages and, to date, these have not prospered, so no judgments have been issued for damages against those who have violated the antitrust law.

There are no antitrust damages judgments in Mexico. However, both directly and indirectly affected parties – ie, any other person – can file complaints with the antitrust authorities for anti-competitive practices and damages.

The basis for this is Article 134 of the Anti-monopoly Law, which establishes that persons 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 reason why anyone can file complaints is because the legislature considered it important to expand the number of cases, so that, regardless of the influence of the offenders on directly or indirectly affected parties, illegal practices can be denounced, and these do not go uninvestigated.

In the experience of the authors, the processing of a case before the Mexican antitrust authorities, from the filing of the complaint and issuance of the resolution, can take at least three-and-a-half years. A trial before a specialised judge could take an additional two years and the review by the superior specialised court, at least one more year. At least another year is added in a case where a Supreme Court review questions the constitutionality of the Antitrust Law. In total, a case could take approximately seven-and-a-half years to conclusion. As noted above, 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 Anti-monopoly Law is committed; however, this period is suspended from the time the antitrust authorities initiate an investigation, and it 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, taking into account that trials for claims for damages are composed of two instances, one before the district courts and the specialised courts, 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.

Class actions are available in Mexico, and a mixed scheme has been chosen: from the outset, collective actions in the strict sense can be taken, as can actions by a homogenous group of individuals with diffuse rights.

On the other hand, class action lawsuits can be filed by any affected party, and if these are a series of direct or indirect buyers, there is no impediment for them to go to the specialised courts to claim the right they believe they have. However, when they are competitors of those responsible for anti-competitive conduct, in the authors’ experience, they claim damages without resorting to class action.

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

The Anti-monopoly Law states that “Persons who have suffered damage or harm as a result of a monopolistic practice or an unlawful concentration may bring legal actions in defence of their rights before the specialised courts”.

In addition, the Federal Code of Civil Procedure states that the Federal Consumer Protection Office, the Federal Environmental Protection Office, the National Commission for the Protection and Defence of Users of Financial Services, the Federal Economic Competition Commission and the Federal Telecommunications Institute have standing to bring collective actions in matters of economic competition. The Code states that the person who exercises the common representation must be part of the collectivity made up of at least 30 people; as must the civil associations or their non-profit correlatives, 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 National Code; the Office of the Attorney General of the Republic; and the Federal Institute of Public Defender’s Office.

What must be demonstrated is the direct impact of the violation of the Antitrust Law.

For its part, according to the Federal Code of Civil Procedure, at the certification stage, the judge must determine that the claim complied 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) that they are acts that have harmed the consumer due to the existence of anti-competitive conduct based on the resolution issued by the antitrust authorities; (ii) that there is a coincidence between the object of the action brought and the affectation suffered; and (iii) the action is not time-barred.

In the event that the judge considers that these requirements have not been met, he will dismiss the class action.

Judicial participation consists of the processing of the trial and the issuance of a judgment in which, if appropriate, the amount to be paid for damages would be fixed. Likewise, the judicial authority must supervise that, during the procedure, the representation of the community is adequate; that is:

• they act with diligence, expertise and good faith;
• there is no conflict of interest;
• collective action is not promoted for profit, electoral purposes, proselytising, unfair competition or speculative; and
• they have not conducted themselves with incompetence, bad faith or negligence in previous class actions.

There are no summary trials, although this is a special trial before specialised judges and courts. This trial is known as an amparo trial.

The relevant evidence consists of the resolution of the antitrust authority and those contained in the files that gave rise to the trials.

In the experience of the authors, judges, in granting deference to the regulator, often do not accept expert evidence, with which lawyers for economic agents sanctioned for violating the Antitrust Law seek to prove that the analysis of the antitrust authorities is not correct. However, in the second instance, the courts have ordered judges to admit expert evidence in order to analyse whether the decisions of the antitrust authorities are constitutional or not.

In most cases, specialised judges and courts usually confirm the merits of the decisions of the antitrust authorities, and only grant in favour of economic agents, reductions in considerations on the amount of damage caused, and fines.

In Mexico, there is only one antitrust law, which 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. Also, to issue opinions on cross-participation and to participate in public tenders.

According to the Mexican Constitution, the only means of defence against the Anti-monopoly Law and the acts of the antitrust authorities is that provided for in the amparo law, through amparo proceedings before specialised judges and courts.

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.

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

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

In Mexico, information on the human right to confidentiality of communications and the client-attorney privilege can be withheld. Both are 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 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.

This regulation has not been challenged in the constitutional courts and it is pending that the Supreme Court of Justice of the Nation determine whether that authority has the power to issue the regulation.

Leniency and/or settlement agreements are protected in the Antitrust Law and in the guidelines and regulations that the antitrust authorities have issued. However, in the experience of the authors, there have been situations, especially when other authorities such as prosecutors’ offices are 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, the accreditation of crimes for violating the Antitrust Law, under Mexican law, requires a higher standard of proof than that required to prove a violation of the Antitrust Law.

There are witness testimonies in Mexico which, except in the case of authorities, are oral. These testimonies are subject to 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 in order for factual witnesses to support liability for antitrust violations.

In the experience of the authors, although the Antitrust Law allows the offering of expert evidence, in 99% of cases, the Mexican antitrust authorities do not validate expert testimony. These testimonies are submitted in writing and in response to questions from companies and antitrust authority prosecutors.

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

In Mexico, there are no judgments 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.

The pass-on defence is not available in Mexican law, nor is it known what the criteria of the courts are, since in Mexico, no judgments have been issued for damages derived from violations of the Antitrust Law. 

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 judgments 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.

Lability 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 procedure in Mexican law for bringing contribution proceedings against a third party, nor is it known what the criteria of the courts are, since in Mexico there have been no judgments for damages for violations of the Antitrust Law. 

The Anti-monopoly and Regulation of One of the Anti-monopoly Authorities Act does provide for precautionary measures during the investigation.

In the judicial procedure for claiming damages, provision is made for precautionary attachment, the seizure of property and conditions necessary to preserve the cause of requesting and to ensure the effective execution of the judgment, provided that things remain in the state in which they are 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 debtor, those who have the quality of partners and administrators of other people’s assets.

The authors are not aware of alternative methods to resolve disputes for damages, however, there are authors who point out the possibility of resorting to arbitration.

In no way will alternative methods of dispute resolution 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. In any case, in certain cases, the payment of expenses and costs may be requested from the party who lost the trial for claim for damages. 

Whether the payment of costs can be awarded will be determined in the respective judgment so that the need to guarantee expenses and costs is not foreseen. 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 claim of the resolutions of the antitrust authorities is made through the amparo trial before specialised judges and courts (appeal through review appeal).

On the other hand, appeals for damages are heard 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.