HP-2020-000016 - [2025] EWHC 1451 (Ch)

Fecha: 16-Jun-2025

Conclusion on the unlawful agreements claim

Conclusion on the unlawful agreements claim

415.

I consider that MGA’s conduct involved agreements with The Entertainer, TRU and Smyths which were, in principle, restrictive of competition by object. Those agreements were, however, vertical agreements which were exempt under the VBER and therefore not prohibited by the Chapter I prohibition or Article 101(1) TFEU.

Heading
INTRODUCTION
THE EVIDENCE OF FACT
MGA’s witnesses of fact
Mr Larian’s breaches of purdah
THE EXPERT EVIDENCE
The economic and valuation experts: preliminary comments
Assessment of the economic and valuation evidence
The Decision Tree Model (DTM)
ISSUES
FACTUAL BACKGROUND
The UK toy industry
Table 1: NPD dolls classifications
MGA and LOL Surprise
Section 14
The founding of Cabo and development of Worldeez
Section 16
The initial marketing of Worldeez
Discussions with the launch retailers
The Entertainer
Toys R Us
Smyths
Other retailers
MGA’s intervention
Contacts with Cabo and Singleton
The Entertainer
Toys R Us
Smyths
B&M and other retailers
AB Gee
Worldeez repackaging and relaunch
Launch of Worldeez globe in B&M
Decline in B&M sales after August 2017
Sales to other retailers
Licensing and international distribution
Nickelodeon advertising
Demise of Cabo
PROCEDURAL BACKGROUND
ABUSE OF DOMINANCE CLAIM
The relevant market definition
The parties’ submissions
Mr Colley’s approach
Mr Parker’s approach
Section 44
Conclusions on market definition
Whether MGA was dominant on the relevant market
The parties’ submissions
Table 2: 2017 market shares for Colley and Parker markets (%)
Table 3: Parker market share estimates for 2018–19 (%)
Table 4: 2017 market shares for extended Colley market (%)
Market shares
Figure 1: Colley diagram of 2017 MGA and competitor market shares
Competition from products outside the relevant market
Barriers to entry and expansion
Countervailing buyer power
MGA’s conduct
Conclusions on dominance
Whether MGA’s conduct amounted to an abuse
The parties’ submissions
The overall exclusionary campaign
MGA’s “response to commercial attack” argument
MGA’s passing off defence
Section 63
Conclusion on abuse of dominance
UNLAWFUL AGREEMENTS CLAIM
Agreements with the toy traders
Discussion and conclusions
Anticompetitive object or effect
Discussion and conclusions
Exemption under the VBER
Scope of the VBER
Market share threshold
Excluded restrictions
Conclusion on the VBER
Exemption under s. 9 / Article 101(3)
Conclusion on the unlawful agreements claim
PATENT THREATS CLAIM
Threats of patent infringement proceedings
The parties’ submissions
Discussion
“Person aggrieved”
Conclusion on the patent threats claim
CAUSATION AND QUANTUM
Legal principles
Quantification of the loss
The approach to claims for lost profits
Conclusions on the overarching approach
Causative effect of MGA’s conduct
Actionable damage and causation: Cabo’s heads of loss
Whether Cabo would have traded profitably in the counterfactual case
Product quality
Section 92
Marketing campaign
Retailer support
Business plan/financial projections
Inventory management
Working capital
Toy expert evidence on commercial success
Breakeven analysis
Table 5: Volumes and working capital required to break even in 2017
International sales
Conclusions on whether Cabo would have traded profitably
The parties’ quantum models
Mr Colley’s quantum models
Table 6: Cabo calculations of losses (£m)
Assessment of Mr Colley’s models
Mr Parker’s quantum models
Table 7: MGA calculations of losses (£)
Assessment of Mr Parker’s significant success model
Table 8: Loss calculation for significant success model, comparing MGA and Cabo cost stacks (£)
Assessment of Mr Parker’s moderate success model
Figure 2: Parker moderate success model: average monthly revenue (£)
Conclusions on the quantum models
DECLARATORY RELIEF
Conclusions