Antitrust: Will class actions follow the fines or the lines?

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Despite last month’s fines, handed out to 14 multi-national freight forwarders, the antitrust investigations into the transport and logistics industry are far from being over. While the EU is done for now with the forwarders, the US Department of Justice, which has already handed out fines, confirmed that its investigations would continue, which could see individuals penalized, or even imprisoned if the airline case is anything to go by.

There is also still the possibility of class action lawsuits by shippers, although Joost van Doesburg, lobbyist at Dutch shippers body EVO and a representative of the European Shippers Council, is hoping that the shippers won’t have to rely on “expensive lawyers” to come to an agreement with the freight forwarders. “We will invite them in for a conversation to see how what they can do for our members in terms of giving back the overpaid charges. We are very disappointed,” he told The Loadstar.

Others may still seek legal reparation. Claims Funding International, the litigation funding body, is still chasing the airlines over the 2010 cartel case. In March it announced it would appeal a decision of the Amsterdam District Court, which ordered a delay in a case being brought by more than 500 European claimants. The Court held that the case should be put on hold, pending the outcome of the airlines’ appeals against the Commission’s judgment.

And still to come is the case against the shipping lines.

A dozen of the world’s leading lines are currently under investigation by the European Commission after they were raided in May last year. Unlike other investigations, in which a company, under the leniency programme, dished the dirt, the case against the shipping lines was likely to have been initiated by the Commission itself – a so-called “fishing expedition”.

Lawyers at the time stated that Brussels, having outlawed the liner conference system in 2008, could have decided to give the industry some time to get used to the new regime before they then came in to check that the new rules were being applied. Two points are under scrutiny – the possibility of collective capacity manipulation when ships were in lay-up in 2010, and the possibility of unlawful signalling on rate or surcharge rises when demand began to recover.

But lines’ behavior since the dawn raids is likely to attract further scrutiny. The recent hike in rates on the Asia-Europe trade, almost universally implemented by lines at remarkably similar levels followed a period of disastrously low rates and overcapacity, and has causing suspicion among shippers. “It’s a bit of a coincidence,” said van Doesburg.

To add further uncertainty into the equation is whether any of the lines have decided to cooperate with EC investigators under the leniency programme, a la DHL in the case of forwarders, and Lufthansa in the case of the air cargo operators.

Uncertainty is, of course, exactly the effect the programme is desired to have, according to the EC spokesman: “Experience has proved that without a leniency programme, it would be very difficult, if not impossible, to detect cartels, sanction them, and therefore deter companies from entering into such practices.  The leniency policy also creates instability within cartels themselves: it seeds distrust and suspicion among cartel members, thereby destabilising the operation of existing cartels and facilitating their break-up.”

Even if the lines hadn’t secretly colluded, the EC may still find them guilty of price-fixing if it concludes that they have been signaling, a notoriously difficult concept to define.

This is what the EC competition spokesman told The Loadstar on signaling: “It is not the secret nature of the contacts that make them illegal under EU law, but the fact that competitors consciously decide to coordinate their behaviour on the market.”

Exactly how the EC is able to prove that remains unanswered, but neither is it divulging how the investigation into lines is proceeding, including whether any have applied to the leniency programme.

The shipping lines are in a difficult position, because under many jurisdictions – the US included – they are allowed to discuss rate levels, and in some cases coordinate capacity. This global mismatch of legislation must be driving some company representatives into a state of advanced commercial schizophrenia. A liner executive flying from a business meeting in Hong Kong to Hamburg must at some point over Siberia perform a voluntary mental gestalt flip of acrobatic proportions.

Additionally, members of the US Transpacific Stabilization Agreement, which would be banned under EU law, claim that all transport modes have a mechanism for controlling capacity, pointing out that “airline routes and capacity are controlled under international government agreements”.

(But we are reasonably certain that if you polled a group of airlines asking which sounds like a better stabilisation mechanism: government control over routes? Or being able to recommend rates to shippers? The answer would be pretty clear.)