USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
5.9 Timeline of Cartel Enforcement Process Investigations can often extend for a year or more, but unless an investigation target agrees to toll the running statute of limitations, the DOJ must file charges within five years of from the last act in furtherance of the alleged conspiracy.
adequacy of representation (the representative parties will fairly and adequately protect the interests of the class). 6.3 Indirect Purchasers and “Passing On” Defences In the United States, the issue of indirect pur - chasers or “passing-on” defences was tradition - ally handled through the application of the Illinois Brick doctrine. Under this doctrine, only direct purchasers have standing to sue for damages resulting from an antitrust violation, while indirect purchasers (such as consumers who purchase goods or services from the direct purchaser) do not have standing to bring a damages claim. However, there are several exceptions to the Illinois Brick doctrine. These exceptions allow indirect purchasers to have standing to bring an antitrust claim for damages when the indirect purchaser has a pre-existing, fixed quantity, cost-plus contract with the direct purchaser, when the indirect purchaser owns or controls the direct purchaser, or when a conspiracy exists between defendants and the direct purchaser. In addition, more than two-thirds of states and the District of Columbia have enacted laws that allow indirect purchasers to sue for damages. Generally, evidence obtained from governmental investigations or proceedings may be admissible in private civil litigation involving alleged cartels, subject to the usual rules of evidence. In some recent instances, courts have ordered defend - ants to produce documents provided to the government in parallel proceedings to private plaintiffs in the early stages of a case. 6.4 Evidence Obtained From Governmental Investigations/ Proceedings
6. Civil Litigation 6.1 Private Rights of Action
In the United States, there is a private right of action to seek damages for harm caused by antitrust violations, including alleged cartels. The threshold requirements for such an action generally require that the plaintiff demonstrate antitrust injury, which means injury resulting from conduct that violates antitrust laws and that harm competition. While civil actions carry a lower burden of proof than government actions, they must also focus on proof of damages, which the government does not need to prove in a cartel action. 6.2 Collective Action Private antitrust actions in the United States can be brought as class actions by individuals or companies that can demonstrate harm from the cartel conduct; generally, buyers of the price- fixed products. To bring a class action lawsuit, the plaintiff(s) must meet the requirements of Rule 23 of the Federal Rules of Civil Procedure, which include a numerosity requirement (the class must be so large that joinder of all members is impractical), commonality (there are questions of law or fact common to the class), typicality (the claims or defences of the representative parties are typi - cal of the claims or defences of the class), and
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