1 BritNed Development Ltd v ABB AB and ABB Ltd  EWHC 2616 (Ch) (‘BritNed’).
3 Karl Aiginger and Michael Pfaffermayr, ‘Looking at the Cost Side of Monopoly’ Journal of Industrial Economics Vol. 45, 1997, pp. 245–67.
4 Clare Macallan, Stephen Millard, and Miles Parker, The Cyclicality of Mark-ups and Profit Margins for the United Kingdom: Some New Evidence, Working Paper No. 351, Bank of England, August 2008.
5 BritNed, para. 448. The documentary evidence is reviewed in ibid., 441.
8 ibid., para. 331, Table 6.
9 ibid., para. 453(9)(d)(iv).
11 The average gross margin on the 14 successful ABB cartel submarine projects was an average of 26.7%. However, the 14 projects listed in Table 6 of the Judgment have an average gross margin of 27.4% suggesting an excess margin of 6.3%. If BritNed is included, it is 26.7% as stated in the judgment but this gives 15 not 14 successful projects. This alters the percentage cost saving using the court’s formula in footnote 558 to (5.6%/21) x 15 = 4.0%; 5.6% - 4.0% = 1.6%, or without BritNed 2.1%, not 1.9% as stated in the judgment. Note two features of the court’s arithmetic: (a) the calculation can be simplified by multiplying ABB’s post-cartel failure rate by the gross margin difference; and (b) it is based on the averages of all ABB cartel projects and not the BritNed project only.
12 BritNed v ABB  EWCA Civ 1840, para. 235.
15 Sainsbury’s v Mastercard  CAT 11, para. 41. The judge (Marcus Smith J) was also a member of the CAT panel in Sainsbury’s v MasterCard.
16 BritNed, para. 264(1)(e).
17 ‘The material before me inevitably has gaps. These I seek to bridge through careful deployment of the broad brush.’ BritNed, para. 79.
18 BritNed, paras. 467 (8), 17(3), and 17(4).
19 Jeffrey H. Howard and David Kaserman, ‘Proof of Damages in Construction Industry Bid-rigging Cases’ The Antitrust Bulletin, Vol. XXXIV, 1989, pp. 359–93, especially pp. 375–7.
20 Cases COMP/34.579 MasterCard, COMP/36.518 EuroCommerce, and COMP/38.580 Commercial Cards (2009).
21 Asda Stores Ltd v MasterCard  EWHC 93 (Comm). This was a joined action consisting of supermarkets and High Street retailers some of which dropped out as claimants during the course of the proceeding.
23 Marc Rysman and Julian Wright, ‘The Economics of Payment Cards’ Review of Network Economics, Vol. 13, 2014, pp. 303–53. This survey article was ‘supported by a grant from Visa Inc’. But note that this paper is much more equivocal about the optimality of duopolistically determined interchange fees; and the welfare standard which should be adopted. cf. John Vickers, ‘Public Policy and the Invisible Price: Competition Law, Regulation and the Interchange Fee’ Competition Law Journal, Vol. 4, 2005, pp. 5–16.
26 Sainsbury’s v MasterCard, para. 212.
28 Jean-Charles Rochet and Jean Tirole, Must-Take Cards and the Tourist Test, DNB Working Paper No. 127 January 2007; and Jean-Charles Rochet and Jean Tirole, ‘Must Take Cards: Merchant Discounts and Avoided Costs’ Journal of the European Economic Association, Vol. 9, 2011, pp. 462–95. Jean Tirole, ‘Payment Card Regulation and the Use of Economic Analysis in Antitrust’ Competition Policy International, Vol. 7 (no. 1) 2011, pp. 137–58.
29 Published empirical research computing MIT MIFs have found them to be zero or significantly negative. Søren Korsgaard, ‘Paying for Payments Free Payments and Optimal Interchange Fees’, European Central Bank, Working Paper Series No. 1682, June 2014; European Commission, Survey on Merchants’ Costs of Processing Cash and Card Payments—Final Results, March 2015. Sainsbury’s gave evidence based on its accounting data that the MIT MIF was very close to zero at 0.04%.
30 See Cento Veljanovski, ‘The Law and Economics of Pass-on in Price Fixing Cases’ European Competition Law Review, Vol. 38, 2017, pp. 209–18.