The CBA Competition Law Section has announced this year’s winner of the James H. Bocking Memorial Award.
Jury comments
The CBA Competition Law Section’s James H. Bocking Memorial Award Committee was pleased to receive six high quality submissions for its consideration on a variety of topics of current interest in the field of competition law and policy. The papers were literate, thoughtful, and provocative. Nevertheless, it was unanimous in its choice of Theo Milosevic’s paper, “Class Actions, Competition Policy, And Indirect Purchaser Standing in Canada” on the need to limit standing of some indirect purchasers in class action damage cases as the best of those that were received, having regard to its scholarly analysis, professional and logical presentation, and thoughtful insights.
The paper discusses some of the implications of the Supreme Court’s decision that indirect purchasers have standing to bring an action for damages under Section 36 of the Competition Act. In particular the paper asks the questions “whether every party that can conceptually be classified as an indirect purchaser should be able to bring a claim under s. 36” and if not on what grounds should standing be denied? The paper provides a compelling argument that standing should be limited and identifies grounds for exclusion of standing, both in principle and how those grounds should be incorporated in the adjudication of class action litigation.
The grounds identified for limiting standing of indirect purchasers are the potential for market disruption and a reduction in competition from bankruptcy, disproportionate recovery, and potential for duplicative recovery. The deficiencies with the present state of the law after the Supreme Court’s decision, as well as the grounds for the limiting principles on standing, are illustrated nicely with a discussion of three class action damages cases by indirect purchasers involving price fixing in financial markets. The panel found the discussion and analysis interesting, well-reasoned, informative, and timely.
The final paper will be published in the 2019 edition of the Canadian Competition Law Review.
The James H. Bocking Memorial Award will be presented to Theo Milosevic at the CBA Competition Law Fall Conference on September 27, 2018.