MEXICO Law and Practice Contributed by: Agustín Aguilar López, Carlos García Cueva, Claudio Catalán Arvide and Joana Karime Novia Ibarra, Aziz & Kaye Business Law
3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations Under both the reformed FECL and the prior regime, the competition authority has a ten-year statute of limitations to initiate investigations into anti-competi - tive conduct, counted from the date the conduct was committed or ceased to exist. By contrast, the period to initiate a damages claim is two years, starting from the date on which a decision by the competition authority is issued. Moreover, as mentioned in 1.1 Current Framework for Private Antitrust Litigation , under the reformed FECL, the initiation of a damages claim does not require the CNA’s decision to be final and unappealable. 3.2 Typical Length of Private Antitrust Litigation As it has been argued, in Mexico, there is no private antitrust litigation. Regarding “public” procedures, based on the authors’ experience, the processing of a case before COFECE or IFT – from the filing of the complaint to the issuance of the resolution – took at least three-and-a-half years. However, it remains uncertain how long the newly created CNA will take to resolve cases, given the recent nature of its estab - lishment. Additionally, the trial before a specialised judge may take around two years and the review by the superior specialised tribunal can take at least one more year. If the Supreme Court reviews constitutional matters related to the FECL, this could add at least anoth - er year, making the total duration of the procedures approximately seven-and-a-half years. Furthermore, considering that damages claims involve two instances, a trial before a federal specialised judge and, where applicable, an amparo lawsuit filed against the court’s judgment, claims for damages may take at least three years to resolve.
4. Class and Collective Actions 4.1 Statutory Basis
Currently, the Federal Code of Civil Procedures and, once it fully enters into force in 2027, the National Code of Civil and Family Procedure, set forth the pro - cedural rules governing claims for damages and evi - dentiary matters. 4.2 Opting In or Out An opting-in system has been adopted – ie, any per - son who does not join a class action, despite having suffered some damage derived from an anti-competi - tive conduct, will not be able to obtain any compensa - tion 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 indi - vidual basis can serve as a disincentive to pursue legal action against the economic agent declared liable by the competition authority. 4.3 Direct/Indirect Purchasers As noted in 1.2 Recent Developments , there are no antitrust damages verdicts in Mexico to date. Howev - er, both directly and indirectly affected parties, includ - ing 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 FECL, which establishes that individuals who suffered damages or losses due to anti-competitive conduct may go before specialised courts to defend their rights, as noted previously, once the competition authority issues a resolution, even if it is appealable. Finally, the authors’ opinion is that anyone can file complaints because Congress deemed it important to broaden the scope for pursuing such cases. Therefore, regardless of any influence the offenders may have over those directly or indirectly affected parties, illegal practices can still be reported and will be duly investigated. 4.4 Class Certification The Federal Code of Civil Procedures establishes that the person acting as common representative of a class must be part of the group, which must consist of
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