CHILE Law and Practice Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and María Jesús Gaete, Estudio Lizana
Passing-On Defences Regarding class actions for damages of collective interest, the “pass-on” or “pass-through” defence may be raised by the defendants when disputing the causal link between the anti-competitive conduct and the alleged damages. Please refer to 2.5 Pass-On Defences .
stopped receiving because of the anti-competitive conduct, including interest. In order to be compen - sated, all damages must be a direct consequence of the anti-competitive conduct penalised by the TDLC’s decision in the infringement proceeding. Punitive Damages DL 211 does not contemplate the possibility of a con - viction for punitive damages in addition to compensa - tory damages. Therefore, in this matter, the general principle of prohibition of unjust enrichment should apply, meaning that the value of the compensation is limited by the amount of the effective damage caused and cannot be transformed into an object of profit or gain for the indemnified party. Additionally, the deter - rent effect sought by punitive damages is already pro - tected by the sanctions applied by the TDLC in the previous infringement procedure. Notwithstanding the above, part of the national doc - trine maintains that Article 53 (B)(c) of the Consumer Protection Act establishes a special rule regarding punitive damages for class action lawsuits. Specifi - cally, Article 53 (B)(c) states that, in the decision that upholds a damage claim in a procedure for the protec - tion of collective or diffuse interests of consumers (ie, a class action), courts have the authority to increase the amount of damages by 25%, based on certain aggravating circumstances. The circumstances to be considered are: • previous sanctions for the same infraction by the offender; • the severity of the economic damage caused to consumers; • the severity of the damage caused to the physical or moral integrity of consumers; and • the impact on the safety of consumers or the com - munity even if no damage has occurred. It is unclear, however, whether courts with jurisdiction over antitrust matters, ie, the TDLC and the Supreme Court following an appeal, will apply this rule in pro - ceedings for class actions arising from anticompetitive conduct.
9. Liability and Contribution 9.1 Joint and Several Liability Joint and Several Liability
Concerning the fines imposed on legal entities con - victed of anti-competitive conduct, Article 26 of DL 211 expressly allows for the imposition of joint and several liability on their directors, managers and other individuals who benefited from the act in question, provided that they participated in its commission. As for claims for damages, Article 2317 of the Civil Code establishes joint and several liability for any harm resulting from a tort or quasi-delict committed by two or more persons. For both cases, once the debt is paid by any of the co-debtors, the obligation is extinguished for all the others as well. Liability Limitation of Immunity Applicants As noted in 6.3 Leniency and Settlement Agree - ments , DL 211 provides for leniency exclusively for cartel cases, granting full exemption from fines to the first leniency applicant and a reduction of up to 50% for the second applicant that provides additional infor - mation. Accordingly, first applicants are exempt from liability, whereas second applicants will benefit from a reduc - tion and remain jointly liable for the remaining balance of the fine. If the applicant is a legal person, then, in addition to the applicant itself, the legal persons that belong to the same business group, as well as their current and former officers, employees, advisors and/or agents will also benefit from the leniency.
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