JAPAN Law and Practice Contributed by: Koki Yanagisawa, Nagashima Ohno & Tsunematsu
1. Introduction 1.1 Current Framework for Private Antitrust Litigation In Japan, there is no US-style class action system or comprehensive discovery system in civil court pro - ceedings. As a result, claimants have faced difficulties in bringing antitrust suits, and the number of antitrust suits has been relatively small over the years. In the early 2000s, damage suits were filed by residents rep - resenting local governments that had suffered dam - ages due to bid riggings by entrepreneurs in violation of the prohibition against “unreasonable restraint of trade” under the Act on Prohibition of Private Monop - olisation and Maintenance of Fair Trade (the “Antimo - nopoly Act”). Since then, damages claims relating to “unreasonable restraint of trade”, such as cartels and bid riggings, have been the predominant type of claims in private antitrust litigation in Japan. However, the recent trend shows that claims for compensation for damages arising from “unfair trade practice”, such as abuse of a superior bargaining position prohibited by the Antimonopoly Act, have been filed with the court more frequently than in the past. Moreover, there have been cases where claimants have filed a petition for injunction under Article 24 of the Antimonopoly Act based on allegations that their interests are infringed, or are likely to be infringed, by certain unfair trade practices. Other notable types of antitrust-related litigation recently include deliberative lawsuits pursuant to the Companies Act filed by the shareholders of a compa - ny against the directors of the company who engaged in conduct in violation of the Antimonopoly Act, seek - ing compensation for damages arising from the com - pany’s payment of administrative surcharges arising from this violation. 1.2 Recent Developments As an example of court cases where claimants sought compensation for damages based on an “unfair trade practice” in violation of the Antimonopoly Act, in June 2022, the Tokyo District Court rendered a judgment ordering the defendant (an operator of an online res - taurant review and search platform) to pay JPY38.4 million in damages to the plaintiff. The Court found
that the defendant had abused their superior bar - gaining position in violation of the Antimonopoly Act by changing their restaurant rating algorithm in an improper manner that was disadvantageous to the plaintiff. In this case, the Japan Fair Trade Commis - sion (JFTC) submitted an amicus brief in response to the court’s request and the court took into considera - tion the JFTC’s opinion on the application and inter - pretation of the Antimonopoly Act. While the Tokyo District Court decision was reversed by the Tokyo High Court in January 2024, this case is expected to promote potential claimants’ actions based on “unfair trade practice” in violation of the Antimonopoly Act. As an example of shareholders’ derivative lawsuits, in March 2022, the Tokyo District Court rendered a judg - ment ordering the defendant directors of an asphalt mixture manufacturing company to pay JYP1.5 bil - lion in damages. The Court held that the defendant directors had been involved in or had recognised cartel activities in violation of the Antimonopoly Act, constituting a breach of the directors’ duty of care, making the directors liable for damages equivalent to the amount of administrative surcharge conceded and paid by the company in question. Several sharehold - ers’ derivative lawsuits were filed following this deci - sion and are currently pending before the Japanese courts. It is therefore important for corporate man - agers to pay particular attention to the risk of being sued by shareholders as a result of violations of the Antimonopoly Act. 2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis Damages Claims As the statutory basis for a claim for damages for breach of competition law in Japan, a claimant who has suffered damages by conduct that constitutes pri - vate monopolisation, unreasonable restraint of trade or unfair trade practice in violation of the Antimonop - oly Act is entitled to bring a follow-on claim on the grounds of strict liability under Article 25 of the Anti - monopoly Act, or a standalone claim on the grounds of general tort under Article 709 of the Civil Code.
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