Slaughter and May helps BA secure OFT fine reduction

A five-year investigation concluded today with the OFT announcing that BA would be fined £58.5m for engaging in anti-competitive practices with Virgin Atlantic Airways between 2004 and 2006.

In 2007, under an early resolution, BA agreed to pay a £121.5m fine (2 August 2007), but that amount was reassessed in 2011 following legal developments on penalty setting and the consideration that not enough weight had been given to BA’s co-operation.

Virgin was not fined as it was the whistleblower.

The Slaughters team, led by competition partner Bertrand Louveaux, was first drafted in by BA after the US Department of Justice fined the airline $300m over conversations between senior figures at the airlines regarding levies added to tickets to cover the rising cost of oil.

Cohen Milstein Hausfeld & Toll (now Cohen Milstein Sellers & Toll) then announced a class action in the US and the UK against BA and Virgin Atlantic for their roles in the price-fixing cartel.

The OFT investigation was conducted by an in-house team of lawyers made up of Stephen Blake and Deirdre Taylor and led by Ali Nikpay, the senior director of cartels and criminal enforcement. They had advice from standing counsel to the OFT Daniel Beard QC of Monckton Chambers.

The OFT had tried to pursue criminal charges against four BA executives, but a trial collapsed in May 2010 (11 May 2010), raising further concerns about the watchdog’s ability to succeed with criminal convictions on cartels.

Nikpay said: ’This decision brings an end to this investigation and sends out a strong message that co-ordinating pricing through the exchange of confidential information between competitors is unlawful. The size of the fine underlines that it is important for companies to take steps to ensure that they have an effective compliance culture.

“The fine would have been higher still but for the co-operation provided by BA throughout the OFT’s investigation. Without this, together with BA’s admission of the infringement, the case would have taken considerably longer to resolve.”