Gleiss Lutz achieves withdrawal of actions for Ritter Sport in confectionery damages litigation

A Gleiss Lutz team has successfully defended German confectionery manufacturer Ritter Sport in a number of extensive private antitrust lawsuits: In the context of the so-called confectionery cartel, drugstores Schlecker, Müller and Rossmann brought actions for antitrust damages against the parties involved – which they have now withdrawn without any payment from the defendants.

Gleiss Lutz has been advising Alfred Ritter GmbH & Co. KG since the confectionery antitrust proceedings began in February 2008. In 2010, the Federal Cartel Office furthermore instigated vertical cartel proceedings on which Gleiss Lutz likewise provided Ritter Sport with extensive advice.

The withdrawal of the actions for damages is based on four factors: Three different and intersecting layers of offence are involved in the confectionery case, namely prohibited exchanges of information within the circle of four (Mars, Haribo, Nestlé, Ritter), the Konditionenvereinigung association and between Ritter and Kraft (Mondelez). This gave rise to great difficulty in justifying the asserted damage since it was not possible to clearly differentiate between the various layers. The plaintiffs’ expert reports on the damage proved to be unreliable. In addition, an expert report commissioned by Ritter impressively showed that no cartel damage had arisen since the price increase at issue back then was down to massive increases in the cost of raw materials.

Furthermore, the new case law of the Federal Court of Justice on the issue of prima facie evidence in cartel cases proved helpful to the defence against the lawsuits: In a landmark judgment on the rail cartel, the Federal Court of Justice decided that prima facie evidence did not apply even in the face of cartel arrangements. This applied even more for mere exchanges of information as occurred in the confectionery case.

Further lines of defence were the right of action and the vertical cartel proceedings: Some of the goods affected by the cartel were sold on internally by the plaintiffs, which would have caused damage to a different group company; the action was brought by the parent companies, posing the question of whether they had the right to sue.

In the vertical proceedings, the Federal Cartel Office furthermore imposed fines on the food manufacturers and food retailers alike for prohibited collusion on retail prices. This raises the question of how the drugstores could suffer any damage at all if their prices were agreed.

The following Gleiss Lutz team defended Ritter Sport in the private antitrust litigation: Dr. Christian Steinle (partner, lead), Simon Mannschreck, Dr. Matthias Klöpfer (all antitrust, all Stuttgart).