Johnson & Johnson advised by CMS in successful appeal against Schlecker’s competition-related claim

Frankfurt am Main – Frankfurt Higher Regional Court (HRC) has rejected the appeal brought by the Schlecker insolvency administrator against the dismissal of the claim for damages handed down by Frankfurt Regional Court (RC) (Case Ref. 11 U 98/18). The insolvency administrator of Schlecker, at one time Germany’s largest health and beauty chain, had filed a lawsuit at Frankfurt RC against various manufacturers of health and beauty products claiming damages under competition law totalling around EUR 212 million. The lawsuit was based on information sharing between manufacturers of health and beauty products in the so-called “KWR working group”. The Regional Court dismissed the action in 2018, citing formal errors. The HRC has now rejected the insolvency administrator’s appeal against that judgment.

The HRC did not follow the RC’s reasoning, deciding instead on the matter itself. It concluded that it was unlikely that the information sharing had resulted in any damage to Schlecker’s business. The HRC expressly referred to the standards set by the most recent case law handed down by the Federal Court of Justice in a rail antitrust case. Specifically, the HRC stated that there is no presumption of any damage in this type of sharing of general information. Furthermore, the HRC found in favour of the suppliers concerned, insofar as the economic evidence submitted by the claimant did not constitute sufficient proof of damage due to methodological errors and contradictions. The HRC also ruled out an appeal to the Federal Court of Justice. The claimant can now only counter this decision by lodging an appeal against denial of leave to appeal.

The Frankfurt HRC ruling is a landmark for parallel legal actions currently being conducted by other health and beauty chains against a number of different manufacturers.

A CMS team headed by lead partner Dr Michael Bauer previously represented Johnson & Johnson in antitrust proceedings before the Federal Cartel Office as well as before Frankfurt RC and Frankfurt HRC.

CMS Germany

Dr Michael Bauer, Lead Partner
Dr Rolf Hempel, Partner
Martin Cholewa, Senior Associate
Daphne Brunkhorst, Associate, all Competition & EU

Inhouse

Sophia Bohnau, Legal Director, Johnson & Johnson

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