A federal judge dismissed as inadmissible the first collective actions promoted by the Federal Economic Competition Commission (Cofece), which seeks to force pharmaceutical distributors to pay compensation of 2,316 million pesos.
Dinorah Hernández, First Judge Specialized in Economic Competition (Cofece), this Tuesday dismissed the actions of Cofece against the Association of Pharmaceutical Products Distributors of the Mexican Republic (Diprofar), as well as against the companies Casa Saba and Fármacos Nacionales.
The judge has not published her reasoning for dismissing the actions. Its decision can be challenged by Cofece, an autonomous constitutional body that is about to be eliminated by Congress, before a collegiate court of appeal.
For a decade now, Cofece has had the power to promote collective actions on behalf of those affected by abusive conduct by companies.
In this case, Cofece fined 21 individuals, five companies and Diprofar in 2021, for agreeing from 2006 to 2016 to manipulate sales prices to pharmacies, limit discounts and sales volume, and not distribute medications on certain days of the year. anus.
The fines amounted to 903 million pesos, the maximum allowed by law, but Cofece estimated the damage to consumers at more than two thousand 300 million pesos, an amount that it intends to recover with collective action, and then deliver it to the IMSS-Bienestar. .
This type of litigation, planned in Mexico since 2011 and similar to American class actions, has been a resounding failure, due to the procedural and practical obstacles to achieving final sentences.
A problem with the discarded actions could be the time that has passed, since the illegal agreement of the distributors operated until December 2016, but the deadline to file the lawsuit was three years and six months. The request to channel resources to IMSS-Bienestar was also unusual in a case of this type.
Even if Cofece disappears, the decentralized body that will be created to replace it – which will be part of the Executive Branch – could continue with this litigation, since it will inherit the open files and probably part of the personnel.
It is worth remembering that, in 2016, the IMSS filed civil lawsuits for monopolistic practices against six companies that colluded in their sales to the Government, claiming 700 million pesos in compensation, but those cases were not collective actions.
What are the key factors that influenced the decision to initiate collective actions by Cofece against pharmaceutical distributors, and how have these factors evolved over time?
Q1: Can you tell us about the background of the collective actions promoted by the Federal Economic Competition Commission (Cofece) against pharmaceutical distributors? What led to these actions being filed, and what were the initial steps taken by the parties involved?
Q2: What is your opinion on the ruling by Judge Dinorah Hernández to dismiss these actions? Do you think it was a justified decision, or does it present any concerns for cases of this nature in the future?
Q3: What challenges have you faced while promoting collective actions in Mexico, both during your tenure at Cofece and in previous positions? How can these challenges be addressed to ensure more effective enforcement of competition laws?
Q4: As the Cofece is set to be replaced by a new body within the Executive Branch, do you foresee any changes in the approach toward promoting collective actions against anticompetitive behavior? What impact might this have on the effectiveness of these actions in the future?
Q5: What role should consumer advocacy groups and government agencies play in promoting competition and protecting consumers from anti-competitive behavior in the pharmaceutical industry? How can they work together to ensure that companies do not engage in practices that harm consumers?
Q6: How can collective actions be used as an effective tool for redressing harm caused to consumers by anti-competitive behavior? What challenges still need to be addressed to ensure their success in Mexico, both procedurally and practically?
Q7: What lessons can be learned from the failure of collective actions in Mexico thus far, and what steps need to be taken to improve their chances of success in the future? Is it necessary to revisit the legal framework that governs these actions, or are there other measures that should be considered?
Q8: what advice would you give to individuals and companies facing allegations of anticompetitive conduct in light of the limited success of these collective actions in Mexico? How can they effectively protect their interests and ensure that their rights are upheld under the current legal framework?
