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In a recent judgement, the German Federal Supreme Court indicated that lump sum damages clauses in private follow on damages actions of up 15% are permissible. The decision is a clear example of judicial activism, and plaintiffs will read this as a positive sign.
Background
Over the past few years, the German Federal Supreme Court (
FSC) has clarified several important questions with regard to private antitrust enforcement. The most prominent series of decisions in this regard relates to a price-fixing cartel set up by German rail producers. On 10 February 2021, the FSC issued