- Counsel for the companies to argue individual issues afterward
- Efficient use of time as avoids repetition
- Common issues include magnitude of fine
In what is a first for India, two lawyers will argue a consolidated appeal before the Competition Appellate Tribunal (COMPAT) in a 2012 cement cartel case which involves 10 cement manufacturers and the Cement Manufacturers Association (CMA).
The case will be heard on 27 October by COMPAT’s two-member bench comprising chairman Justice G S Singhvi and member Rajiv Kher. The appeal was filed with the tribunal in November 2012 following the Competition Commission of India’s (CCI) 20 June 2012 order levying fines against CMA, Ambuja Cements, UltraTech Cement, Grasim Cements (now merged with UltraTech), JK Cement, India Cements, Madras Cements, Century Cements, Binani Cement, Lafarge India and Jaypee Cement.
The parties were collectively fined INR 63.07bn. The CCI order said that the cement manufacturers indulged in collusive price-fixing. The companies divided India into five zones to enable themselves to control the supply and determine or fix exorbitantly high prices through the cartel. While imposing the penalty, the regulator considered the parallel and coordinated behavior of cement companies on price, dispatch and supplies in the market.
Samir Gandhi from AZB & Partners and Nisha Uberoi from Cyril Amarchand Mangaldas, representing Lafarge India and Ambuja Cement respectively, will present the common issues of the cement manufacturers, a source familiar with the case told PaRR.
The presentation was consolidated to avoid repetition as most cement manufacturers are likely to argue the same issues on appeal, which can unnecessarily be time consuming considering the number of parties involved in the cartel case. Afterward, the remaining counsels will make individual arguments that relate specifically to their individual clients, the source familiar told PaRR.
While this is a first time for India, two US-based white-collar defense lawyers told PaRR that such a practice is would be unusual in the US. Paul Calli of Calli Law, pointed out that the concept of “group counsel" is more akin to civil class action matters.
Consolidating 11 parties’ arguments into presentations by two attorneys means a more efficient use of time and resources as the companies are likely to make similar arguments on the same issues. But it increases the burden on the two selected counsels, as they will be representing all the parties and voicing their collective concerns as opposed to addressing specific issues relating to the companies they represent.
According to some India-based antitrust lawyers, the common issues include the magnitude of the fine, the purported lack of sufficient evidence, and the fact that because cement is a homogenous commodity, prices tend to be similar.
When the appeal was filed three years ago, another India-based lawyer told PaRR that though the arguments are similar, companies would be unlikely to file a joint appeal because in cartel cases they tend usually to disassociate themselves from each other.