Companies go to court against cartels
Companies have increasingly resorted to the Judiciary to try to recover losses suffered from the action of cartels and other illegal practices of competition. A survey carried out by the The Brazilian Institute of Studies on Competition, Consumer Affairs and International Trade (Ibrac) shows that, between 2017 and 2020, 13 lawsuits were filed. In the previous 23 years, from 1994 to 2016, a total of 26 were filed.Claims to seek damages are made through so-called actions for damages — a practice that has been consolidated in other countries, such as the United States. In Brazil, the most famous case involves exporters, who are trying to receive around R$19 billion from the country's main banks, accused of cartel in the foreign exchange market.Generally, the lawsuits are filed after the convictions of cartels by the antitrust regulator CADE. The Ibrac survey only considers cases not under closed proceeding — a common request in these cases. The institution calculates that at least 20 cases are being processed confidentially.There is still no news of decisions on the merits of these cases and the tendency is for them to be lengthy processes and to proceed at all levels of Justice. For now, the judiciary system has analyzed preliminary issues, such as the prescription period for requests — three or five years. "The decisions indicate three years after CADE's final decision", says Pedro Paulo Salles Cristofaro, partner at law firm Chediak Advogados.There is a bill (nº 11.275/2018) on the subject making its way in Congress. It clarifies some points about these lawsuits and, if approved, could generate a boom in the volume of orders, according to Mr. Cristofaro.The proposal, which deals with statute of limitations, indemnity and arbitration, for example, has already been approved by the Senate and, in the Chamber of Deputies, awaits analysis at the Constitution, Justice and Citizenship Committee (CCJC) since 2019.The bill, however, say lawyers, is not a condition for the lawsuit to be proposed. The Competition Defense Law (No. 12,529 of 2011) already allows those harmed by any competition infringement to claim compensation. The Code of Civil Procedure (CPC) can also be the basis for compensation claims, according to Leonor Cordovil, partner at Grinberg Cordovil Advogados."The bill tries to improve and resolve discussions,", says Ms. Cordovil. The first of these, she claims, involves the cartel whistleblower at Cade (lenience agreement). The bill...
Para continuar a ler
PEÇA SUA AVALIAÇÃO