TEAM CODE- 421

THE 4TH DSNLU NATIONAL MOOT COURT COMPETITION, 2018

Before
THE COMPETITION COMMISSION OF AVALON

UNDER SECTION 26 (8) OF THE COMPETITION ACT, 2002

COMPETITION CASE NO. 1 /2018

ZAPAPP INFORMANT
Versus
APPLE DELIGHTS OPPOSITE PARTY-I
BLUEBERRY OPPOSITE PARTY-II
CANDY CORNER OPPOSITE PARTY-III
Along with
COMPETITION CASE NO. 2 /2018
APPILICIOUS INFORMANT
Versus
ZAPAPP OPPOSITE PARTY
Along with
COMPETITION CASE NO. 3 /2018
BLUEBERRY INFORMANT
Versus
APPLE DELIGHTS OPPOSITE PARTY
Along with
COMPETITION CASE NO. 4 /2018
CANDY CORNER INFORMANT
Versus
APPLE DELIGHTS OPPOSITE PARTY

MEMORANDUM DRAWN AND FILED ON BEHALF OF THE PRO-FORMA PETITIONERS

 Memorandum on behalf of the Pro-forma Petitioners

TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................................................. 5

STATEMENT OF JURISDICTION....................................................................................................... 9
STATEMENT OF FACTS ................................................................................................................. 10
STATEMENT OF ISSUES ................................................................................................................. 11
SUMMARY OF ARGUMENTS .......................................................................................................... 12
ARGUMENTS ADVANCED.............................................................................................................. 13
1. THAT THE PRO-FORMA RESPONDENTS ARE GUILTY OF CARTELIZATION. .................... 13
1.1. Agreement .................................................................................................................. 13
1.1.1. Not a parallel conduct ......................................................................................... 13
1.1.2. Standard of Proof: The Doctrine of preponderance of probability ..................... 13
1.2. Boycott........................................................................................................................ 14
1.2.1. Horizontal Agreements violative per se.............................................................. 14
1.2.2. Appreciably adverse effect on Competition (AAEC) ......................................... 15
1.2.2.1. No defence of Objective justification or necessity is applicable .................. 16
1.3. Letter to Food Safety and Standard authority............................................................. 16
1.3.1. Issue not maintainable......................................................................................... 16
1.3.2. Malicious intent................................................................................................... 16
1.3.2.1. Attempt to attract penalty and legal scrutiny for competitors....................... 17
1.4. Exclusive Selling Agreement ..................................................................................... 17
1.4.1. The present issue is maintainable........................................................................ 17
1.4.2. Harmful effects of their indulgence in Exclusive Production............................. 17
2. THAT THE PETITIONERS CREATED NO BARRIER TO ENTRY................................................. 18
2.1. That there were no structural barriers to entry ........................................................... 18
2.1.1. No Cost advantage .............................................................................................. 18
2.1.2. No First mover advantage ................................................................................... 19
2.1.2.1. The test of Asymmetry.................................................................................. 19
2.1.3. Scope for product differentiation ........................................................................ 19
2.2. That there were no strategic barriers to entry............................................................. 19
2.2.1. Predatory pricing tactics...................................................................................... 20
2.2.1.1. Benefit of Doubt must be given .................................................................... 20
2.2.2. Higher salary to promote efficiency.................................................................... 20
2.2.3. Harm to brand name............................................................................................ 21
2.3. The petitioner is not liable for any barrier.................................................................. 21

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 Memorandum on behalf of the Pro-forma Petitioners

2.3.1. Doctrine of Mootness and method of Abuse Filter to be applied ....................... 21

2.3.1.1. Objective Justification ..................................................................................... 22
3. THAT THE PRO-FORMA RESPONDENT IS LIABLE FOR ABUSE OF DOMINANT POSITION.. 23
3.1. Meaning of Dominance .............................................................................................. 23
3.1.1. Relevant market defined...................................................................................... 23
3.1.2. Market Strength and other determinants ............................................................. 24
3.2. Abuse of dominance ................................................................................................... 24
3.2.1. Eliminating Rivals............................................................................................... 25
3.2.2. Arbitrary terms in listing..................................................................................... 25
3.2.3. Using position of leverage................................................................................... 25
3.2.4. Predatory pricing................................................................................................. 26
3.3. Essential facilities....................................................................................................... 26
3.3.1. Cost subsidization ............................................................................................... 26
3.3.2. Incentive Balance test.......................................................................................... 27
3.4. No real Choice ............................................................................................................ 27
4. THE FINDINGS OF THE D.G ARE NOT ERRONEOUS, HASTY AND SUFFERING FROM
OVERREACH .............................................................................................................................. 27
4.1. Issue Not maintainable ............................................................................................... 28
4.1.1. Alternative remedies........................................................................................ 28
4.1.2. No legal injury................................................................................................. 28
4.1.3. Independence of the DG at stake..................................................................... 29
4.2. Principles of Natural Justice not violated ................................................................... 29
4.2.1. Fair chance given to both parties......................................................................... 29
4.2.2. Decision not arbitrary.......................................................................................... 29
4.2.3. Acted in Good Faith ............................................................................................ 30
4.3. No Overreach of DG’s Powers................................................................................... 30
4.3.1. Acted within his powers...................................................................................... 30
PRAYER......................................................................................................................................... 31

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 Memorandum on behalf of the Pro-forma Petitioners

LIST OF ABBREVIATIONS

§ Section
AIR All India Reporter
AAEC Appreciable adverse effect on competition
Anr. Another
App. Applications
CCA Competition Commission of Avalon
CCI Competition Commission of India
Comp Cas. Competition case
CompAT Competition Appellate Tribunal
CompLR Competition Law Review
Corp. Corporation
CPA Consumer Protection Act, 1986
DG Director General
ECJ European Court of Justice
Ed. Edition
EU European Union
FSSAI Food Safety and standards authority of India

Hon’ble Calcutta
http. hypertext transfer protocol
Ltd. Limited
S.C.C Supreme Court Case
TFEU Treaty on the Functioning of the European Union
The Act Competition Act, 2002
UK United Kingdom
U.S. United States
v. Versus

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 Memorandum on behalf of the Pro-forma Petitioners

INDEX OF AUTHORITIES

I. LIST OF CASES

 A.Ganesh and Ors. v. Competition Commission of India, 2015 Indlaw COMPAT 17 (India).
.................................................................................................................................................. 15
 A.R Antulay v. R.S Nayak, (1988) 2 SCC 602 (India). ........................................................... 28
 A.S.Mittal v. State of U.P., (1989) 3 SCC 223 (India)........................................................... 18
 AKZO v. Commission, (1978) ECR 207 (UK)........................................................................ 17
 Allahabad Bank v. Radha Krishanan Maity, (1999) 97 Comp Cas. 117 (SC) (India). ............ 27
 American Tobacco Co. v. United States, 328 U.S. 781 (1946)................................................ 22
 ANI Technologies Pvt. Ltd. v. Fast Track Call Cab, (2015) 131 SCL 240 (CCI) (India). 16, 21
 Ansul Industries v. Shiva Tobacco Co., 2007 Indlaw DEL 608 (India). ................................. 13
 Arshiya Rail Infrastructure Ltd. v. Ministry of Railways, 2012 CompLR 937 (CCI) (India). 19
 Aspen Skiing v. Aspen Highlands Skiing, 472 U.S. 585 (1985). ........................................... 23
 Asstt. Cit v. Kishore Lal Balwant Rai, 2007 17SOT 380 (India)............................................. 27
 AstraZeneca v. Commerce Commission, NZSC 92 (2010) (UK)............................................ 14
 Belaire Owner's Association v. DLF Ltd., 2011 CompLR 239 (CCI) (India). .................. 14, 17
 Benzine en Petroleum Handelsmaatschappij BV v. Commission, (1978) ECR 1513 (UK).... 20
 Berkley Photo Inc. v. Eastman Kodak co., 603, F 2d 263, 275. .............................................. 22
 Big Apple BMW v. BMW of Noth Amer., 974 F.2d 1358 (3d Cir. 1992).............................. 12
 Biocon Ltd. v. Hoffman La Roche, (1979) ECR 461 (UK). .............................................. 22, 23
 Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food, (1986) Q.B. 716 (UK). ......... 14
 BPB Industries PLC v. Commission, (1993) ECR 385............................................................ 22
 Brown Shoe Co. v. United States, 370 U.S. 294 (1962). ......................................................... 23
 Bundesverband der Arzneimittel Importeure ev v. Bayer AG, (2004) ECR I-23 (UK). ......... 17
 Business Electronic Corp. v. Sharp Electronics Corp., 485 U.S. 717 (1988). ......................... 11
 C.A.A. v. University of Oklahoma, 468 U.S. 85 (1985).......................................................... 11
 Chandigarh Administration v. Narang Singh, JT 1997 (3) SC (India)..................................... 28
 Chandran Ratnaswami v. K.C. Palanisamy., (2013) 6 SCC 740 (India).................................. 18
 CIT v. East coast commercial Co. Ltd., AIR 1967 SC 765 (India).......................................... 10
 Commission of the European Communities v. Anic Partecipazioni, (1999) EC.R. I-4125
(UK).......................................................................................................................................... 10
 Competition Commission of India v. Steel Authority of India, (2010) 4CompLJI SC (India).
.................................................................................................................................................. 27
 Dhanraj Pillay and ors v. M.s Hockey India, (2013) CompLR 543(CCI) (India)................. 22
 Dinesh Bulakhi Harijan v. The State, 2009 CriLJ 114 (India)................................................. 18
 Director General v Gasom Gases Pvt. Ltd., (1995) 84 Comp Cas. 615 (India)....................... 24
 Eastern State Retail, Lumbers association v. United States, 234 U.S. 600 (1914). ................. 15
 Fast Track Call Cab Pvt. v. Ani Technologies Pvt. Ltd., 2017 CompLR 667 (CCI) (India). .. 16
 Federal Trade Commission v. Superior Court Trial Lawyers Association, 493 U.S. 411
(1990). ...................................................................................................................................... 11
 Ferozpur Chemist and Druggist Assn. v. CCI, 2016 CompLR 953 (CCI) (India)................... 26
 FNK v. Commission, (1997) ECR II-1739 (UK)..................................................................... 11
 Freemans Indus LIC v. Eastmen Chem co., 172 S.W 3d,512.................................................. 22

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 Memorandum on behalf of the Pro-forma Petitioners

 FTC v. Coca-Cola Co., 641 F.Supp. 1128, 1137 (1986).......................................................... 16

 Gopalakrishna Naidu v. M.P., (1952) A.N. 170 (India)........................................................... 15
 Greek Telecommunications Organisation v. National Commission (2005) E.C.C. 2 (UK). ... 20
 H.J. v. IT & T Corp., 867 F.2d 1513. ....................................................................................... 13
 Hanuman v. State of Madhya Pradesh, AIR 1979 SC 798 (India)........................................... 11
 Haridas Exports v. All India Float Glass Assn., (2002) 111 Comp. Cas. 617 (SC) (India)..... 20
 Hilti AG v. Commission of the European Communities, (1990) ECR II-163 (UK)................ 20
 Hindustan Pencils Pvt. Ltd. v. India Stationery Products Co., 1989 Indlaw DEL 219 (India).13
 Hoffmann La Roche & Co. AG v. Commission, (1979) ECR 461 (UK). ............................... 20
 Imperial Chemical Industries Ltd. v. Commission (Dyestuffs), 1972 ECR 619 (UK). ..... 11, 12
 In re British Sugar, Tate and Kyle, 2001 ECR-II 2035 (UK). ................................................. 11
 In re Italian Flat Glass II, 1989 OJ L 33/44 (UK).................................................................... 10
 In re JFE Engineering, (2004) ECR II-2501 (UK)................................................................... 18
 Indian Medical Association v. V.P.Shantha., (1995) 6 SCC 651 (India)................................ 18
 Interglobe Aviation Ltd. v. Competition Commission of India, 2010 (173) DLT 581 (India).14
 Irish Sugar plc ν. Commission of the European Communities, (1999) ECR II-2969 (UK). ... 20
 Italy v. Commission, C-307/03: ECJ 1963 (UK). .................................................................... 11
 Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1 (India). .......................... 28
 Jones v. Swansea City Council, (1990) 1 WLR 1453.............................................................. 14
 K. B. Nagpur, M.D. (Ayurvedic) v. Union of India, (2012) 4 SCC 483 (India)...................... 13
 Kamta Prasad Singh v. Regional Manager Food Corporation, AIR 1974 SC 376 (India). ..... 26
 Kelco Disposal v. Browning-Ferris Indus of Vt., 845 F.2d 404 (2d Cir.)................................ 16
 Kingfisher Airlines ltd. v. CCI, 2014 CompLR 1 (CompAT) (India)...................................... 14
 Klor’s, Inc. v. Broadway Hale Stores Inc. et. al., 359 U.S. 207 (1988)................................... 12
 Lafarge India Ltd. v. Competition Commission of India, 2013 CompLR 439 (India). .......... 26
 Law Offices of Curtis v. Bell Atlantic Corporation, 294 F 3d 307.......................................... 23
 Liner v. Jafco, Inc., 375 U.S. 301 (1964). ................................................................................ 19
 M.A.P Oil Co. v. Taxaco Inc., 691 F2d 1303 (9th Cir 1982).................................................... 24
 Mahindra & Mahindra Ltd. v. Union of India, (1979) 2 SCC 529 (India)............................... 12
 Maxwell v. Department of trade and industry, (1974) 2 AIIER 122 CA (India)................... 14
 MCX Stock Exchange Limited v. NSE India Ltd., (2012) 2 CompLJ 473 (India).................. 16
 Mega Cabs Pvt. Ltd. v. Ani Technologies Pvt. Ltd., 2016 CompLR 327 (CCI) (India). .. 16, 17
 Michelin v. Commission, (1983) ECR 3461 (UK). ................................................................. 19
 Midwest Radio Co. v. Forum Pub Co., 942 F.2d. 1294 (8th Cir. 1990). ................................. 18
 Naap Pharmaceuticals Holdings Ors. v. Office of Communications (2002) CAT 1 (India). .. 18
 Napier Brown v. British sugar, (1990) 4 CMILR 551 (UK).................................................... 23
 Napp Pharmaceutical Holdings v. Director General of Fair Trading, (2002) E.C.C. 13 (India).
.................................................................................................................................................. 20
 National Institute of Mental Health and scieneces v. Kalyana Raman, AIR 1992 SC 1806. .. 27
 National Society of Professional Engineers v. United States, 435 U.S. 679 (1948)................ 10
 NSE India Ltd. v. Competition Commission of India, 2014 CompLR 304 (India). ................ 24
 Neeraj Malhotra v. Deutsche Post Bank, 2011 102 CLA 181 (CCI) (India). .......................... 28
 Neeraj Malhotra v. North Delhi Power Ltd., (2011) 3 SCC 436 (India).................................. 18
 North East Petroleum Dealer Association v. CCI, 2016 CompLR 71 (India). ........................ 26

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 Memorandum on behalf of the Pro-forma Petitioners

 Northern Pacific Railroad Co. v. U.S., 356 U.S. 1 (1958). ...................................................... 12

 Nynex Copt. Et al. v. Discon Inc., 525 U.S. 128 (1988).......................................................... 11
 Perumon Bhagvathy Devaswom v. Bhargavi Amma, 2008 (8) SCC 321 (India).................... 15
 Polypropylene-Petrofina, 1991 ECR II-1087 (UK). ................................................................ 10
 Professional Real Estate Investors v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993).
.................................................................................................................................................. 14
 Ramakrishna Dalmia v. Union of India, AIR 1958 S.C. 538 (India)....................................... 23
 Ratanchand Hirachand v. Askar Nawaz Jung, AIR 1976 A.P. 112 (India). ............................ 25
 Ratnagiri Gas & Power Pvt. Ltd. v. RDS Projects Ltd.S, AIR (2013) S.C. 2000 (India)........ 23
 Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995). ......................... 19
 Robinson v. Kilvert, (1889) LR 41 ChD 88. ............................................................................ 26
 Sainsbury’s Supermarkets v. Mastercard Incorportated, (2016) CAT 11 (UK). ................... 18
 Sardara Singh v. State, 1961 SCC OnLine P&H 207 (India)................................................... 18
 Sebi v. Alka Syntehtic Ltd., (1999) 95 Comp. Cas. 772 (India). ............................................. 27
 Sh. Surinder Singh Barmi v. BCCI India, 2013 CompLR 297 CCI (India)............................. 26
 Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 CompLR1 (CCI) (India). .................. 16
 Standard Oil Co v. United States, 337 U.S. 293, 314 (1949)................................................... 13
 State of Karnataka v. Mangalore University, 2002 S.C. 1223 (India). .................................. 24
 State Oil Co. v Khan, 522 U.S. 3 (1997).................................................................................. 11
 Summit health Ltd. et. al. v. Pinhas, 500 U.S. 322 (1990)....................................................... 12
 Surinder Singh Barmi v., 2013 CompLR 297 (CCI) (India).................................................... 10
 Tetra Pak v. Commission, (1990) ECR II-309 (UK). .............................................................. 16
 The Financial Conduct Authority v. Macris, (2015) EWCA Civ 494 (UK). ........................... 22
 Twin Labs Inc. v. Wielder Health and Fitness, 900 F. 2db 566 (2nd Cir 1990)...................... 24
 Union of India v. Tulsiram Patel, (1985) 3 SCC 398 (India)............................................. 26, 27
 United Brands v. Commission, (1978) 3 C.M.L.R. 83 (India)................................................. 20
 United States of America v. Microsoft Corporation, 56 F3d. 1448. ........................................ 25
 United States v. Griffith, 334 U.S. 100, 105 (1948)................................................................. 11
 United States v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001). ...................................................... 22
 Usha Roy v. Ans Developers Pvt. Ltd., 2017 CompLR 925 (CCI) (India). ............................ 25
 Vadivel Mudaliar v. Pachiama Gounder, AIR 1974 Mad 87 (India). ...................................... 26
 Virgin Atl. Airways v. British Airways, 257 F. 3d 256. .......................................................... 24
 Vodafone India Ltd. v. CCI, 2017 CompLR 965 (Bom) (India).............................................. 17
 Voltas Limited v. Union of India, (1995) Comp. Cas. 228 (India). ......................................... 12
 Western Coalfields Limited v. SSV Coal Carriers Limited, 2017 CompLR 757 (CCI) (India).
.................................................................................................................................................. 13
 White Motor Co. v. United States, 372 U.S. 253 (1963) ......................................................... 11

II. LIST OF BOOKS

1. 1 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (4th ed. 1985).
2. 1 S.M. DUGGAR, GUIDE TO COMPETITION LAW AND POLICY (5th ed. 2010).
3. 14 RICHARD A. POSNER, ANTITRUST LAWS 2351 (2d ed. 2006).

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 Memorandum on behalf of the Pro-forma Petitioners

4. 2 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed. 2012).

5. 2 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed. 2012).
6. 2 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (4th ed. 1985).
7. ADAM SMITH, WEALTH OF NATIONS 244 (5d ed. 1786).
8. AVTAR SINGH, CONTRACT AND SPECIFIC RELIEF (11th ed. 2012).
9. D.P. MITTAL, COMPETITION LAW AND PRACTICE (3d ed. 2011).
10. HERBERT HOVENKAMP, FEDERAL ANTITRUST POLICY: THE LAW OF COMPETITION (4d ed.
2011).
11. LENNART RITTER, W. DAVID BRAUN, EUROPEAN COMPETITION LAW: A PRACTITIONER’S GUIDE
(3d ed. 2005).
12. M.P. JAIN, THE CONSTITUTION OF INDIA (7th ed. 2014).
13. RAJESH KUMAR, COMPETITION LAW OF U.S., E.U. AND INDIA (1d ed. 2017).
14. STEVEN NAHMIAS, PRODUCTION AND OPERATIONS ANALYSIS (7d ed. 2007).

III. LIST OF TREATIES AND STATUTES

1. Clayton’s Act, 1914.
2. Code of Civil Procedure, 1908.
3. Code of Criminal Procedure, 1974.
4. Competition Act, 2002.
5. Constitution of India, 1950.
6. Consumer Protection Act, 1986.
7. Indian Evidence Act, 1872.
8. Indian Penal Code, 1860.
9. Monopolistic and Restrictive Trade practices Act, 1969.
10. Sherman Act, 1890.
11. Treaty for the functioning of the European Union, 1957.

IV. ONLINE DATABASE

1. www.westlawindia.com
2. www.scconline.com
3. www.jstor.org
4. www.manupatra.com

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 Memorandum on behalf of the Pro-forma Petitioners

STATEMENT OF JURISDICTION

The pro-forma Petitioners have most humbly approached the Competition Commission of Avalon
under section 26 (8)1 of the Competition Act, 2002.

1
If the report of the Director General referred to in sub-section (3) recommends that there is contravention of any of
the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into
such contravention in accordance with the provisions of this Act.

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 Memorandum on behalf of the Pro-forma Petitioners

STATEMENT OF FACTS

Avalon, with New Town as its capital is has laws pari materia with India. Their Competition Act
was enacted in 2002 replacing the MRTP. The CCA gives due regard to precedents from India,
EU and US. In the bakeries and patisseries market of New town, ZapApp increased the sales of
small bakers by listing and promoting them on their mobile based App and entered into
an agreement with Zoom Service for delivery. Swaggy, a food listing application also entered the
market but couldn’t capture it. The following table summarizes the brief facts that led to the case.

CASE NO. RELEVANT FACTS LEADING TO CAUSE OF ACTION

Case No. 1 Conscious of the increasing presence of small players Apple Delights,
BlueBerry and Candy Corner also got listed on ZapApp but could not create
(Alleged
enough returns for the App and so they delisted themselves and joined similar
Cartelization)
platform owned by Apple delight. DG found their indulgence in
Exclusive
Production, common storage as in 2008 and common letter to FSSAI.
Case No. 2 After big brands leaving its platform, ZapApp waived off its commission but
charged only to those players listed on multiple platforms. It also started
(Barriers to
paying higher salaries to the Delivery Staff of Zoom.
Entry)

Case No. 3 & 4 BlueBerry and Candy after being listed on Appilicious approached it raising
concern over arbitrary pricing and unfair terms and conditions to which the
(Abuse)
justification provided was that as it was the sole proprietor, pricing and listing
was at its discretion.
DG took into account the report of Go Gourmet survey, sought information
from the parties and their competitors and submitted his report, which found
Findings of the
ZapApp not guilty on any count while there was Cartelization and Abuse. A
DG
copy of the same was given to the parties for objections on which
Apple
Delights submitted that it was erroneously held and suffered overreach.

The CCA clubbed the cases together and hence, the matter is presented before this Court.

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 Memorandum on behalf of the Pro-forma Petitioners

STATEMENT OF ISSUES

ISSUE I: WHETHER THE PRO-FORMA RESPONDENTS ARE GUILTY OF CATRELIATION

ISSUE II: WHETHER THE PETITIONER CREATED ANY BARRIER TO ENTRY

ISSUE III: WHETHER THE PRO FORMA RESPONDENT IS LIABLE FOR ABUSE OF DOMINANT
POSITION

ISSUE IV: WHETHER THE FINDINGS OF THE DG ARE ERRONEOUS, HASTY AND SUFFERING FROM
OVERREACH

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 Memorandum on behalf of the Pro-forma Petitioners

SUMMARY OF ARGUMENTS

ISSUE I: THAT THE PRO-FORMA RESPONDENTS ARE GUILTY OF CARTELIZATION

It is most humbly submitted that the pro-forma respondents entered into a cartel as it was
an agreement with the aim to boycott the petitioner and thereby distort competition in the market.
Exclusive selling and the letter to FSSAI attribute to the same effect and since the acts of the
respondents have more anti-competitive effects than pro-competitive effects and were not
proportionate, they are not eligible for any defence.

ISSUE II: THAT THE PETITIONER DID NOT CREATE ANY BARRIERS TO ENTRY

It is most humbly submitted that there are no barriers to entry created by the pro-forma petitioner.
Alternatively, none of them should be attributed to the petitioners since the issue to the extent of
structural barriers is moot and his acts, though not amounting to be anticompetitive are
nevertheless covered under the defence of objective justification.

ISSUE III: THAT THE PRO-FORMA RESPONDENT IS LIABLE FOR ABUSE OF DOMINANT POSITION

It is most humbly contended that in the present matter, the respondent has abused its position of
dominance. It has a position of dominance, determined by his market power which was abused by
indulging in predatory pricing tactics and employment of unfair terms and
conditions. Furthermore, he also leveraged his market position in one relevant market to enter
another one thereby harming the Competition.

ISSUE IV: THAT THE FINDINGS OF THE DG ARE NOT ERRONEOUS, HASTY AND SUFFERING
FROM OVERREACH

It is most humbly contended that the finding of the DG are not to be questioned in the current
proceedings. Even if it is brought to adjudication, it must be noted that § 36 of the Act provides
that D.G shall be guided by the principles of natural justice in discharge of its functions which
have been complied with. Furthermore, his actions didn’t suffer from overreach because
the investigations carried on by were within the powers conferred on him by the commission to
carry
on such a procedure.

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 Memorandum on behalf of the Pro-forma Petitioners

ARGUMENTS ADVANCED

1. THAT THE PRO-FORMA RESPONDENTS ARE GUILTY OF CARTELIZATION

A “Cartel” is an agreement amongst producers, distributors or service providers, with the object
of regulating supply in the market.2 'Enterprise' includes any entity carrying on any economic
activity.3 It is most humbly submitted that the pro-forma respondents entered into a cartel as it
was an agreement with the aim to boycott the petitioner and thereby distort competition in the
market. Exclusive production and the letter to FSSAI attribute to the same effect.

1.1.AGREEMENT

Any arrangement or understanding written or oral, formal or informal is an agreement 4. Action in

concert is a series of transactions, not necessarily in sequence to fulfill the agreement. 5 It is most
humbly contended that their acts amount to an agreement satisfying the standard of proof.

1.1.1. NOT A PARALLEL CONDUCT

Parallel conduct runs counter to the economic interests of the individual participants 6 and hence,
the fact that they stand to gain from coordination shows concert. 7 Evidence can be (i)
Direct evidence8 and (ii) Indirect evidence inferred from behavior which must have been
coordinated.9

1.1.2. STANDARD OF PROOF: THE DOCTRINE OF PREPONDERANCE OF PROBABILITY

Acting in concert has to be considered with regard to their relation, conduct and common
interest.10
Evidence of actual concert is not to be insisted upon 11 as it is conceived in secrecy. It is not
rebutted by instances of independent behavior.12 It can be proved by ‘preponderance of
probabilities’ and
‘liaison of intentions’.13Hanuman v. State of Madhya Pradesh14held that;

2
S.M. DUGGAR, GUIDE TO COMPETITION LAW AND POLICY 632 (5th ed. 2010).
3
Surinder Singh Barmi v. Board of Control for Cricket in India, 2013 CompLR 297 (CCI) (India).
4
HERBERT HOVENKAMP, FEDERAL ANTITRUST POLICY: THE LAW OF COMPETITION 90 (4d ed. 2011).
5
National Society of Professional Engineers v. United States, 435 U.S. 679 (1978).
6
In re Italian Flat Glass II, 1989 OJ L 33/44 (UK).
7
In re Polypropylene, 1986 OJ L 230/1 (UK).
8
Polypropylene-Atochem, 1991 ECR-II 867 (UK).
9
Polypropylene-Petrofina, 1991 ECR II-1087 (UK).
10
Commission of the European Communities v. Anic Partecipazioni SpA, 1999 ECR I-4125 (UK).
11
CIT v. East coast commercial Co. Ltd., AIR 1967 SC 765 (India).
12
Polypropylene-Petrofina, 1991 ECR II-1087 (UK).
13
S.M. DUGGAR, GUIDE TO COMPETITION LAW AND POLICY 698 (5th ed. 2010).
14
Hanuman v. State of Madhya Pradesh, AIR 1979 SC 798 (India).

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 Memorandum on behalf of the Pro-forma Petitioners

“Circumstances should be of a nature such as to exclude every hypothesis but the one proposed
to be proved or to show that within all human probability the respondents must have acted in
concert.”15
People of the same trade seldom meet together…but the conversation ends in conspiracy.16Ergo,
the Act forbids discussion with a competitor, the course of conduct they have decided. 17
The specific intent need not be proven18and the overt act must be looked at to find out if such
effect is calculated, or designed or could be predicted.19

1.2.BOYCOTT

Boycott may be defined as a concerted action of a group of competitors having the potential to
harm competitiveness or to express displeasure.20 Concerted practices knowingly substitutes
practical cooperation between enterprises for the risk of competition21. They are contrary to Art.
81(1) (d) of TFEU if they pose competitive disadvantage.22 It implies different treatment in like
situations or like treatment in different situations.23

1.2.1. HORIZONTAL AGREEMENTS VIOLATIVE PER SE

It is most humbly contended that there is a horizontal agreement with the aim to boycott, which is
between competitors not to sell or buy from another24 and is illegal per se25. Per se rule states that
an agreement is presumed to be unreasonable and illegal and no argument is needed to justify it.26
As such, agreements that are very harmful to competition,27 are subject this rule in many
jurisdictions like U.S.28, European Union29 and India.30 It makes restraints more certain to the

15
In re Ghai Enterprises Private Limited and Quality Ice Creams, RTP Enquiry No. 18/1983 (India).
16
ADAM SMITH, WEALTH OF NATIONS 244 (5d ed. 1786).
17
In re Britsh Sugar, Tate and Kyle, 2001 ECR-II 2035 (UK).
18
United States v. Griffith, 334 U.S. 100, 105 (1948).
19
P. MITTAL, COMPETITION LAW AND PRACTICE 176 (3d ed. 2011).
20
Supra at 222.
21
Imperial Chemical Industries Ltd. v. Commission, 1972 ECR 619 (UK).
22
FNK v. Commission, (1997) ECR II-1739 (UK).
23
Italy v. Commission, C-307/03: ECJ 1963 (UK).
24
Nynex Copt. et al. v. Discon Inc., 525 U.S. 128 (1998).
25
Business Electronic Corp. v. Sharp Electronics Corp., 485 U.S. 717 (1988).
26
D.P. MITTAL, COMPETITION LAW AND PRACTICE 172 (3d ed. 2011).
27
State Oil Co. v Khan, 522 U.S. 3 (1997).
28
White Motor Co. v. United States, 372 U.S. 253 (1963), See also, C.A.A. v. University of Oklahoma, 468 U.S. 85
(1985) and Federal Trade Commission v. Superior Court Trial Lawyers Association, 493 U.S. 411 (1990).
29
Imperial Chemical Industries Ltd. v. Commission, 1972 ECR 619 (UK).
30
Voltas Limited v. Union of India, 1995 Comp. Cas. 228 (India).

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 Memorandum on behalf of the Pro-forma Petitioners

benefit of everyone concerned and avoids a complicated and prolonged economic investigation 31
so that the court may apply the per se rule without finding of market power,32 proof of the power
to exclude or that of actual exclusion.33 It stems from the mischief rule. Neither the commission
nor the court can question the wisdom of the parliament for having statutorily determined so.34

1.2.2. APPRECIABLY ADVERSE EFFECT ON COMPETITION (AAEC)

The term refers to a particular economic consequence which harms the consumer welfare sense
of economies i.e. effect on price or output.35It the case of Mahindra & Mahindra Ltd.36 it was
held that;
“It is only where a trade practice has the effect, actual or probable, of restricting, lessening or
destroying competition that is liable to be regarded as a restrictive trade practice.”

The word “appreciable” means “Capable of being perceived or recognized in the senses,
perceptible but not a synonym of substantial.” 37 Thus, the restraint of trade would be tolerable
only if it is limited to what is reasonably necessary.38 The focus is upon the potential harm39. In
Klor’s, Inc.40it was held that a group boycott is not to be tolerated merely because the victim is
only one merchant.

It is most humbly submitted that, whenever a seller through pre-emption restricts his
rivals’ opportunities to compete, the potential impairment of the competitive proof
readily appears.41When a cartel has a high strength of the remaining competition, it may tend to
create a monopoly.42The prohibited degrees is a market share exceeding 5% threshold. 43 Even if
termed as an exclusive dealing agreement, the case of Standard Oil Co.44, gave a similar
quantitative
substantiality test based on degree of market share of the parties to the agreement.

31
Northern Pacific Railroad Co. v. U.S., 356 U.S. 1 (1958).
32
Big Apple BMW v. BMW of North America, 974 F.2d 1358 (3d Cir. 1992).
33
D.P. MITTAL, COMPETITION LAW AND PRACTICE 209 (3d ed. 2011).
34
S.M. DUGGAR, GUIDE TO COMPETITION LAW AND POLICY 761 (5th ed. 2010).
35
D.P. MITTAL, COMPETITION LAW AND PRACTICE 171 (3d ed. 2011).
36
Mahindra & Mahindra Ltd. v. Union of India, (1979) 2 SCC 529 (India).
37
S.M. DUGGAR, GUIDE TO COMPETITION LAW AND POLICY 689 (5th ed. 2010).
38
Supra at 690.
39
D.P. MITTAL, COMPETITION LAW AND PRACTICE 176 (3d ed. 2011).
40
Klor’s Inc. v. Broadway Hale Stores Inc. et. al., 359 U.S. 207 (1959).
41
S.M. DUGGAR, GUIDE TO COMPETITION LAW AND POLICY 727 (5th ed. 2010).
42
Supra.
43
COMMISSION NOTICE IN AGREEMENTS OF MINOR IMPORTANCE, (1998) 4 CMLR 192 (UK).
44
Standard Oil Co v. United States, 337 U.S. 293, 314 (1949).

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 Memorandum on behalf of the Pro-forma Petitioners

1.2.2.1. No defence of Objective justification or necessity is applicable

The petitioner’s act was Pari passu i.e. "fairly", "without partiality"45 in terms of Article 102 (c)
TFEU. Moreover, cost justification implies that differential prices would not be condemned if the
differences were proportional to the differences in marginal cost of serving two customers. 46 An
“objective justification” must comply with the principle of proportionality. 47 The court in the case
of Ansul Industries48 observed that the Court must also take into consideration necessity to protect
third party interest i.e. the general public or the buyer of the goods. 49 Alternatively, their act
would satisfy the three essential elements of attempt offence namely;

i. Specific intent to control prices or destroy competition

ii. Predatory or anti-competitive conduct
iii. A dangerous probability of success.50

1.3. LETTER TO FOOD SAFETY AND STANDARD AUTHORITY

1.3.1. ISSUE NOT MAINTAINABLE

The Forum non conveniens since the Commission does not have power to entertain such issues
under § 19 or § 26 of the Act as keeping the principle of strict necessity in mind 51, the
commission only addresses the competition issues and restores fair competition in the market. 52
Therefore, it is most humbly submitted that whether online aggregators should be covered under
FSSAI or not is not a matter to be questioned in this court but the court must take into account the
intent with which the latter was sent as a proof of their concerted behavior.

1.3.2. MALICIOUS INTENT

Bourgoin S.A.53opined that malice could be made out if the acts were done with an actual
intention to cause injury.54In the present matter, the act of sending the letter of FSSAI implies
malicious
intent since neither did they have a legitimate grievance nor the intention to comply.

45
HENRY CAMPBELL BLACK, BLACK'S LAW DICTIONARY 768 (2d ed. 2012).
46
14 RICHARD A. POSNER, ANTITRUST LAWS 2351 (2d ed. 2006).
47
United Brands v. Commission, (1978) 3 C.M.L.R. 83 (UK).
48
Ansul Industries v. Shiva Tobacco Co., 2007 Indlaw DEL 608 (India).
49
Hindustan Pencils Pvt. Ltd. v. India Stationery Products Co., 1989 Indlaw DEL 219 (India).
50
H.J. v. IT & T Corp., 867 F.2d 1513.
51
K. B. Nagpur, M.D. (Ayurvedic) v. Union of India, (2012) 4 SCC 483 (India).
52
Western Coalfields Limited v. SSV Coal Carriers Limited, 2017 CompLR 757 (CCI) (India).
53
Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food, (1986) Q.B. 716 (UK).
54
Jones v. Swansea City Council, (1990) 1 WLR 1453.

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 Memorandum on behalf of the Pro-forma Petitioners

1.3.2.1.Attempt to attract penalty and legal scrutiny for competitors

Use of public procedures and regulations may also constitute an abuse,55 as the concept is not
limited to behavior in the market only and it may result in serious anticompetitive effects,56which
'is manifestly not consistent with competition on the merits and the specific responsibility on such
an undertaking not to prejudice, by its conduct, effective and undistorted competition'.57

1.4.EXCLUSIVE SELLING AGREEMENT

1.4.1. THE PRESENT ISSUE IS MAINTAINABLE

In the judgment of Kingfisher Airlines58 and Belair Owner’s association59it was held that
agreements prior to May 2009, sought to be acted upon would be scrutinized under the
act. Intergiobe Aviation Ltd60 held that since the investigation was incomplete the matter was
rightly adjudged by CCI. A simple denial of the same by the accused without any evidence
doesn’t give him the benefit of doubt.61Ergo, it is redressable as the Pro-forma respondents
entered into an agreement in 2008 but continued until the act came into force.

Furthermore, it is most humbly submitted that since there is no limitation period in the
competition law. Even then, the limitation should receive a liberal construction so as to advance
substantial justice62i.e. want of "diligence" or "inaction" must be attributed only when something
required to be done by him, is not done.63Also, in double jeopardy a person must have been both
prosecuted and punished conjunctively.64

1.4.2. HARMFUL EFFECTS OF THEIR INDULGENCE IN EXCLUSIVE PRODUCTION

Bilateral agreements relating to production sharing are illegal per se.65 They are also restrictive
u/s
2 (nnn) of CPA and would be a “hard-core” cartel to share or divide markets by
allocating

55
Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993).
56
Astra Zeneca v. Commerce Commission, (2009) NZSC 92 (2010) (UK).
57
Id.
58
Kingfisher Airlines ltd. v. Competition Commission of India, 2014 CompLR 1 (CompAT) (India).
59
Belaire Owner's Association v. DLF Ltd., 2011 CompLR 239 (CCI) (India).
60
Interglobe Aviation Ltd. v. Competition Commission of India, 2010 (173) DLT 581 (India).
61
Maxwell v. Department of trade and industry, (1974) 2 AIIER 122 CA (India).
62
A. Ganesh v. Competition Commission of India, 2015 Indlaw COMPAT 17 (India).
63
Perumon Bhagvathy Devaswom v. Bhargavi Amma, 2008 (8) SCC 321 (India).
64
Gopalakrishna Naidu v. M.P., (1952) A.N. 170 (India).
65
S.M. DUGGAR, GUIDE TO COMPETITION LAW AND POLICY 660 (5th ed. 2010).
Page | 17
 Memorandum on behalf of the Pro-forma Petitioners

customers.66 In such a product division agreement, the firms agree that each will avoid production
of a single designated product produced by a rival. 67 Also, applying the inevitable
disclosure Doctrine, exchange of information is held to be anti-competitive 68even if openly
and fairly gathered and disseminated without attempting to reach an agreement.69

2. THAT THE PETITIONER CREATED NO BARRIER TO ENTRY

It is most humbly submitted that there are no barriers to entry created by the pro-forma petitioner.
Alternatively, none of them should be attributed to the petitioners since the issue to the extent of
structural barriers is moot and his acts, though not amounting to be anticompetitive are
nevertheless covered under the defence of objective justification.

2.1.THAT THERE WERE NO STRUCTURAL BARRIERS TO ENTRY

It is most humbly submitted that there are no structural barriers inherent to the structure of the
relevant market which create a disadvantage to the respondent as compared to the petitioner as
the test of asymmetry is not qualified since all gains of the petitioner are based on efficiency.

2.1.1. NO COST ADVANTAGE

Federal judges have tended to measure entry barrier by the absolute amount of money that it
takes to enter an industry.70 It was held in the case of Ani Technologies71,
“The key feature of the aggregator model is that the company does not have to invest capital and
therefore, it is not an entry barrier high enough to deter new entrants.”

Thus, cost advantage does not qualify entry barrier in this market. It includes Initial
Capital Investment, which is the exceptionally large capital investments,72Sunk costs or to the
costs that are irrecoverable if the attempt fails 73 and Economies of Scale which may not be a
barrier even
when there is a larger size or higher degree of vertical integration.74

66
HARD CORE CARTELS: THIRD REPORT ON THE IMPLEMENTATION OF THE 1998 COUNCIL RECOMMENDATION 8
OECD JOURNAL OF COMPETITION LAW AND POLICY (2006) (UK).
67
United States v. Microsoft Corporation, 253 F.3d 34 (D.C. Cir. 2001).
68
United States v. Container Corporation of America, 393 U.S. 333 (1969).
69
Eastern State Retail, Lumbers association v. United States, 234 U.S. 600 (1914).
70
Kelco Disposal v. Browning-Ferris Indus of Vt., 845 F.2d 404 (2d Cir.). See also, Fruehauf Corporation v. FTC,
606 F.2d 345, 357 (2d Cir. 1979).
71
ANI Technologies Pvt. Ltd. v. Fast Track Call Cab Pvt. Ltd., (2015) 131 SCL 240 (CCI) (India).
72
United Brands v. Commission, 1978 ECR 207 (UK).
73
Id.
74
MCX Stock Exchange Limited v. National Stock Exchange of India Ltd., (2012) 2 CompLJ 473 (India).

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 Memorandum on behalf of the Pro-forma Petitioners

2.1.2. NO FIRST MOVER ADVANTAGE

First mover advantage includes switching cost and customer loyalty. Switching costs are the one-
time costs the buyer faces when switching to a new entrant. The extra polation principle
recognizes that it is a once and for all cost which is compared to the advantages of that the
consumers foresee as gain.75 The court observed in Ani technologies76 in this regard, that
for apps, there are no significant costs preventing consumers from switching and using both.
Thus, there is freedom of choice on both the sides of the supply chain.77

2.1.2.1.The test of Asymmetry

Asymmetry as a test implies that barrier only exists if entrant can’t replicate it. 78 Customer
Loyalty and Goodwill can counter entry barriers. 79 In the case of Tetra Pak I80, it was observed
that a firm can leverage the value of the goodwill, given the inter-linkages between markets.81

2.1.3. SCOPE FOR PRODUCT DIFFERENTIATION

Product differentiation creates intense competition in the market giving the customer
ample choice.82Incumbents may also innovate the product offering of old entrant, thus depriving
it of a unique market niche.83Advantages of increased speed can be used.84 Differentiation may
take the form of differing product formulas, differing presentations or even differing trade
names.85

2.2.THAT THERE WERE NO STRATEGIC BARRIERS TO ENTRY

Strategic entry deterrence involves some kind of pre-emptive behavior by the firms. 86 The
strategic barriers as opposed to the natural barriers to entry is illegal. 87It is submitted that the
petitioner had no strategies and thus, accrued no liability as there was no price discrimination or
predatory pricing
and no harm to their brand name or degree of vertical integration.

75
LENNART RITTER, W. DAVID BRAUN, EUROPEAN COMPETITION LAW: A PRACTITIONER’S GUIDE 356 (3d ed. 2005).
76
Fast Track Call Cab Pvt. v. Ani Technologies Pvt. Ltd., 2017 CompLR 667 (CCI) (India).
77
Mega Cabs Pvt. Ltd. v. Ani Technologies Pvt. Ltd., 2016 CompLR 327 (CCI) (India).
78
Demsetz Harold, The cost of transacting, 9 Q J ECON. 82, 33-53 (1968).
79
FTC v. Coca-Cola Co., 641 F.Supp. 1128, 1137 (1986).
80
Tetra Pak v. Commission, (1990) ECR II-309 (UK).
81
Shamsher Kataria v. Honda Siel Cars India Ltd., 2014 CompLR1 (CCI) (India).
82
Belaire Owner's Association v. DLF Ltd., 2011 CompLR 239 (CCI) (India).
83
Brooke Group Ltd. v. Borwn & Williamson Tobacco Corp., 509 U.S. 209 (1993).
84
Vodafone India Ltd. v. The Competition Commission of India, 2017 CompLR 965 (India).
85
In re Zera/Montedison, OJ 1993 L272/28.
86
D.P. MITTAL, COMPETITION LAW AND PRACTICE 410 (3d ed. 2011).
87
LENNART RITTER, W. DAVID BRAUN, EUROPEAN COMPETITION LAW: A PRACTITIONER’S GUIDE 42 (3d ed. 2005).
Page | 19
 Memorandum on behalf of the Pro-forma Petitioners

2.2.1. PREDATORY PRICING TACTICS

Price discrimination may be defined as the sale or purchase of different units of a good or service
at prices not proportionate to differences in the cost of supplying them. 88There can be heavy loss
in business in terms of customer satisfaction.89 The penalty cost or the stock out cost is the cost
for not having sufficient stock on hand to satisfy a demand including the loss of goodwill
cost.90
Customer goodwill loss may lead to a unit penalty cost for unsatisfied demand due to the cost of
canceled orders and the cost of lessening customer dissatisfaction.91
Predatory pricing is the strategy of “driving competitors out of the market by setting the prices
below average variable costs92. It can be positively beneficial in terms of
allocative efficiency.93There must be a conceivable economic purpose other than elimination of
competitor.94

2.2.1.1.Benefit of Doubt must be given

The judgments of North Delhi Power Limited95 and Naap Pharmaceuticals Holdings96 assert that
a finding of abuse should be based on clear and cogent evidence. 97Distinguishing predatory
pricing from normal competitive behavior is difficult. 98Therefore, as was reiterated
Sardara Singh99benefit of doubt must be to the extent that the doubt can stand.100
In Chandran Ratnaswami101 the Court stated that the obligation to come with clean hands
102
is absolute Hence, the respondent is eligible for no protection since his acts are
anticompetitive as has already been proved.

2.2.2. HIGHER SALARY TO PROMOTE EFFICIENCY

It is most humbly submitted that increase in salary was to maintain and benefit own employees
and decrease the opportunity of vertical integration for the Pro forma respondents. In Midwest

88
What is an Abuse of a Dominant Position? 287 THE EUROPEAN COMPETITION LAW ANNUAL (2003).
89
Madras Hospitality Services v. Tangy Enterprises Pvt. ltd., 2014 (3) Bom CR 446 (India).
90
STEVEN NAHMIAS, PRODUCTION AND OPERATIONS ANALYSIS 207 (7d ed. 2007).
91
Supra.
92
AKZO v. Commission, (1978) ECR 207 (UK).
93
Bundesverband der Arzneimittel Importeure ev v. Bayer AG, (2004) ECR I-23 (UK).
94
Mega Cabs Pvt. Ltd. v. Ani Technologies Pvt. Ltd., 2016 CompLR 327 (CCI) (India).
95
Neeraj Malhotra v. North Delhi Power Ltd., (2011) 3 SCC 436 (India).
96
Naap Pharmaceuticals Holdings v. Office of Communications (2002) CAT 1 (India).
97
In re JFE Engineering, (2004) ECR II-2501 (UK).
98
D. Harbord, Barriers to Entry and Exit in European Competition Policy, 14 INT. REV. L.E. 411, 423 (1994).
99
Sardara Singh v. State, 1961 SCC OnLine P&H 207 (India).
100
Dinesh Bulakhi Harijan v. The State, 2009 CriLJ 114 (India).
101
Chandran Ratnaswami v. K.C. Palanisamy, (2013) 6 SCC 740 (India).
102
Rashmi v. SHO Parveen Kumar, (2010) 3 SCC 569 (India).
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 Memorandum on behalf of the Pro-forma Petitioners

Radio103the court held that it is not illegal to give incentive or higher salaries to employees as
long as it is aimed to improve its own production and distribution process. Predatory hiring
implies perpetuation of its monopoly104 which wasn’t intended in the present matter. The bakers
and Zoom got benefit of the efficiency and hence, the defence of passing on is applicable.105

2.2.3. HARM TO BRAND NAME

It is humbly contended that there is no harm done by the decline in ratings on the information
portal. § 2(1) (o) of CPA provides that service does not include the rendering of any service free
of charge.106Furthermore, if the infringement of the competition rules was a ‘Genuinely
excusable error’ i.e. ‘if a reasonable person applying reasonable standard of care couldn’t foresee
that the conduct restricted competition’ and A.S. Mittal v. State of U.P.107, the Apex Court
observed that mistakes will occur despite the exercise of reasonable skill and care. Also, no
action whatsoever, deliberate or unintentional, will be used to cause harm on oneself.108

2.3.THE PETITIONER IS NOT LIABLE FOR ANY BARRIER

It is most humbly submitted that the petitioner accrued no liability since there is no law of “no
fault” monopoly i.e. the innocent monopolist doesn’t violate the laws simply by charging its
profit maximizing price.109 Thus, as the petitioner in the present case, an undertaking with
superior economic efficiency should not be condemned because its conduct is based on
performance110 creating an unfair advantage for smaller firms111 which risks penalizing for
efficiency.112 Also, the structural barriers are moot and there is an Objective Justification.

2.3.1. DOCTRINE OF MOOTNESS AND METHOD OF ABUSE FILTER TO BE APPLIED

The Doctrine implies that the court cannot adjudge a matter with no detrimental effects in
its
practice113or any controversy.114In the present case the issue to the extent of the existence
of

103
Midwest Radio Co. v. Forum Pub Co., 942 F.2d. 1294 (8th Cir. 1990).
104
HERBERT HOVENKAMP, FEDERAL ANTITRUST POLICY: THE LAW OF COMPETITION 352 (4d ed. 2011).
105
Sainsbury’s Supermarkets v. MasterCard Incorporated, (2016) CAT 11 (UK).
106
Indian Medical Association v. V.P. Shantha., (1995) 6 SCC 651 (India).
107
A.S. Mittal v. State of U.P., (1989) 3 SCC 223 (India).
108
MONTI, EC COMPETITION LAW 219 (1st ed. 2007).
109
3 RICHARD A. POSNER, ANTITRUST LAWS 630-650 (3d ed. 2008).
110
Michelin v. Commission, (1983) ECR 3461 (UK).
111
Julia Heit, The justifiability of the ECJ’s wide approach to the concept of “Barriers to entry”, 15 ECLR 117 (1996).
112
BARRY ROGER, COMPETITION LAW AND POLICY IN THE EC AND THE UK 92 (3rd ed., 2004).
113
MICHEL ROSENFELD, THE OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL LAW 967 (1st ed. 2012).
114
Liner v. Jafco, Inc., 375 U.S. 301 (1964).
Page | 21
 Memorandum on behalf of the Pro-forma Petitioners

structural barriers is Moot since structural phenomena dictates the level of cost minimizing output
for all firms and relates to superior efficiency so they cannot be considered as anticompetitive
entry barriers.115Hence, it is not detrimental to a single firm or something that the petitioner is
guilty of. The method of abuse filter may be used, where the court will only intervene upon the
wrongful acts of the company116 when a reduction in competition actually reduces the consumer
welfare.117 A new entrant cannot claim that all advantages which an existing entrant has, as it is
not of law of equalization of the competitors.118

2.3.2. OBJECTIVE JUSTIFICATION

It is most respectfully contended that a dominant undertaking is entitled to take

reasonable measures to protect its commercial interests.119In the present case, the petitioner must
be allowed to use the defence of Objective justification that refers to three conceptual
categories:120

(i) Legitimate business behavior, includes “competition on the merits” 121 and “defence of
commercial interests”122;
(ii) Objective factors out of the control of the dominant company123 ; and
(iii) Efficiency gains124 which has two aspects. Firstly, non-implication of some kind of
inefficiency i.e. socially undesirable wastes of economic resources, 125 and
Secondly, conformance with public interest.126

“Meeting competition” defence is applicable when a lower price was made to meet an equally
low price of the competitor. 127It must comply with the principle of proportionality, i.e. the
conduct has to pursue a legitimate aim, be reasonable and proportionate to the threat
posed by its
competitors.128

115
3 RICHARD A. POSNER, ANTITRUST LAWS 112 (3d ed. 2008).
116
Id.
117
Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995).
118
Arshiya Rail Infrastructure Ltd. v. Ministry of Railways, 2012 CompLR 937 (CCI) (India).
119
United Brands v. Commission, (1978) ECR 207 (UK).
120
Hilti AG v. Commission of the European Communities, (1990) ECR II-163 (UK).
121
Hoffmann La Roche & Co. AG v. Commission, (1979) ECR 461 (UK).
122
United Brands v. Commission, (1978) ECR 207 (UK).
123
Benzine en Petroleum Handelsmaatschappij BV v. Commission, (1978) ECR 1513 (UK).
124
Irish Sugar plc v. Commission of the European Communities, (1999) ECR II-2969 (UK).
125
Weizsäcker, Barriers to Entry--A Theoretical Treatment 2 SERIES LECTURE NOTES IN ECONOMICS AND
MATHEMATICAL SYSTEMS NO. 185 (1980).
126
Haridas Exports v. All India Float Glass Manufacturers Association, (2002) 111 Comp. Cas. 617 (SC) (India).
127
3 RICHARD POSNER, ANTITRUST LAWS 2351 (2d ed. 2006).
128
United Brands v. Commission, (1978) 3 C.M.L.R. 83 (India).
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 Memorandum on behalf of the Pro-forma Petitioners

After the period of infancy comes the process of maturity and excuses for "promotional"
or "penetrative" pricing start veering. 129Several agencies stated that the discounts can
be anticompetitive if they effectively foreclose a large share of the relevant market130and exclude
rivals as a substantial impediment to entry and/or expansion.131

Therefore, it is most humbly submitted that there are no barriers to entry, structural or strategic
and alternatively, the petitioners are not liable for any barrier whatsoever.

3. THAT THE PRO-FORMA RESPONDENT IS LIABLE FOR ABUSE OF DOMINANT POSITION

It is most humbly contended that in the present matter, the respondent has abused its position of
dominance. It has a position of dominance, determined by his market power and other related
factors, which was abused by indulging in predatory pricing tactics and employment of unfair
terms and conditions. Furthermore, he also leveraged his market position in one relevant market
to enter another one thereby harming the Competition and creating hindrance in the market for
the free buying and selling of goods in the market.

3.1.MEANING OF DOMINANCE

Dominant position in § 4 of the Act to means a position of strength. 132 For establishing a
dominant position,133 it is necessary to define relevant market because competition cannot exist
in abstract, access market power depending on a large number of factors prevailing in the market
and consider whether the conduct of the undertaking amounts to an abuse of dominant position
u/s 4(2) (e).134

3.1.1. RELEVANT MARKET DEFINED

The product market includes all substitutes that a consumer may switch to if the price of
the product were to increase.135 The relevant geographic market is the area in which the
undertakings concerned is involved in the supply of relevant products or services where
the conditions are
homogenous.136 In the present case the relevant market is firstly, the market of production and
sale

129
MCX Stock Exchange Ltd. v. National Stock Exchange of India Ltd., (2012) 2 CompLJ 473 (India).
130
Greek Telecommunications Organization (OTE) v. National Commission (2005) E.C.C. 2 (UK).
131
Napp Pharmaceutical Holdings L. v. Director General of Fair Trading, (2002) E.C.C. 13 (India).
132
Supra at ¶4.6.
133
D.P. MITTAL, COMPETITION LAW AND PRACTICE 291 (3d ed. 2011).
134
Supra at 289.
135
Competition Act, 2000, section 2(t), No 12, Acts of Parliament, 2002 (India).
136
ANI Technologies Pvt. Ltd. v. Fast Track Call Cab Pvt. Ltd., (2015) 131 SCL 240 (CCI) (India).

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 Memorandum on behalf of the Pro-forma Petitioners

of confectionery products and secondly, the online market of promotion and delivery of
confectionary and sweet products in new town.

3.1.2. MARKET STRENGTH AND OTHER DETERMINANTS

The prime test of market strength is whether a firm is able to, through its own action, have a
significant impact on prices or on the range and quality of goods and services available. 137 Firms
which are insignificant in a market are unlikely to have any influence no matter what practices
they may adopt138 as compared to a firm that holds a dominant position139.

The control of an undertaking in a market can be measured on the basis of market shares, total
annual turnover140, size of the assets, number of employees and the time for which the share is
held.141Market share is in itself indicative of dominance unless there are exceptional
circumstances142and even depends on the market share of the competitors.143Strong purchasing
power,144and Know-how or confidentially held, 145 can also constraint the behavior of the firm.146

3.2.ABUSE OF DOMINANCE

Abuse of dominance147 occurs when a dominant firm imposes, directly or indirectly, unfair or
discriminatory condition or price148, in purchase or sale of goods and services149going by the SCP
model Structure.150 Using its dominant position in one market to enter into another relevant
market, in a way forecloses access to rivals.

Abuse can either be Exploitative and Exclusionary. 151 In the present matter, both these means of
abuse were employed. A firm in a dominant position has a special responsibility not to allow its

137
1 S.M. DUGGAR, GUIDE TO COMPETITION LAW AND POLICY 765 (5th ed. 2010).
138
Supra at 766.
139
D.P. MITTAL, COMPETITION LAW AND PRACTICE 334 (3d ed. 2011).
140
American Tobacco Co. v. United States, 328 U.S. 781 (1946).
141
COMMISSION NOTICE IN THE DEFINITION OF RELEVANT MARKET, 1997 OJ 372/3, ¶53 (UK).
142
Hoffmann La Roche v. Commission, (1979) ECR 461 (UK).
143
Freemans Indus LIC v. Eastmen Chem. co., 172 S.W 3d, 512.
144
United Brands v. Commission, (1978) ECR 207 (UK).
145
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
146
D.P. MITTAL, COMPETITION LAW AND PRACTICE 297 (3d ed. 2011).
147
Supra at 261.
148
Berkley Photo Inc. v. Eastman Kodak co., 603, F 2d 263, 275.
149
United Brands v. Commission, (1978) ECR 207 (UK).
150
The Financial Conduct Authority v. Macris, (2015) EWCA Civ. 494 (UK).
151
United States v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001).

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 Memorandum on behalf of the Pro-forma Petitioners

conduct to impair undistorted competition on the common market 152 in public interest153 as there
is a concept of sliding scale relationship 154along with the need to establish proportionality
between the harm avoided and the action undertaken to avoid this harm.155 The conditions are not
abusive only when their imposition is a legitimate competition need.156

3.2.1. ELIMINATING RIVALS

It is most humbly submitted that the respondent intended to inhibit free competition in the market
by abusing his dominant position. Since the direct proof of such condition is difficult to accrue,
an analysis of finding abuse of dominance is the sacrifice test. 157 It questions whether a
monopolist is willing to sacrifice short term profits in order to reap the benefits in exchange of a
long term impact on its rival,158 lacking” legitimate business purpose” 159

3.2.2. ARBITRARY TERMS IN LISTING

Appilicious was solely owned by Apple Delights, who was not only the owner but also a
customer. They used arbitrary terms in listing to thereby benefit one party, which amounts to be
abuse. In Ramakrishna Dalmia,160the court noted that using the terms and conditions to one’s
advantage so as to earn extra profits, is an abusive practice. Moreover, the other bakeries could
not compete on such terms since the product market was different as they did not have the means
or countervailing buying power to persuade the app to offer their products at a discount too.

3.2.3. USING POSITION OF LEVERAGE

It is most humbly contended that the Respondent indulged in the act of leveraging which means
that the dominant undertaking is using its position in one relevant market to strengthen its
position in another.161 It distorts competition to the downstream markets162 and is thus, abusive.
It is an
anti-competitive practice since others not similarly situated can not avail like benefits.

152
BPB Industries PLC v. Commission, (1993) ECR 385.
153
Biocon Ltd. v. Hoffman La Roche, (1979) ECR 461 (UK).
154
United States v. Image technical Services Inc., 504 U.S. 451, 488 (1992).
155
Dhanraj Pillay v. Ms. Hockey India, (2013) CompLR 543(CCI) (India).
156
D.P. MITTAL, COMPETITION LAW AND PRACTICE 297 (3d ed. 2011).
157
Ratnagiri Gas & Power Pvt. Ltd. v. RDS Projects Ltd, AIR (2013) S.C. 2000 (India).
158
Aspen Skiing v. Aspen Highlands Skiing, 472 U.S. 585 (1985).
159
Biocon Ltd. v. Hoffman La Roche, (1979) ECR 461 (UK).
160
Ramakrishna Dalmia v. Union of India, AIR 1958 S.C. 538 (India).
161
Napier Brown v. British sugar, (1990) 4 CMILR 551 (UK).
162
Law Offices of Curtis v. Bell Atlantic Corporation, 294 F 3d 307.

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 Memorandum on behalf of the Pro-forma Petitioners

3.2.4. PREDATORY PRICING

Predatory pricing means that discrimination is made between customers similarly placed 163. The
decisive factor therefore is whether the difference between the cost actually incurred and price
actually charged is excessive.164 Unjustified discounts are predatory in nature and so is
discriminatory pricing.165 Therefore, it is most humbly contented that the respondents indulged in
this abusive practice by giving an undue discount of 40% exclusively on the products of
one customer, thereby discriminating and harming the competitiveness.

Predation is an “objective concept” and is not normally necessary to prove intent or guilt 166 for
any direct effect167. Thus, the threat of anti-competitive action may suffice to achieve
anti- competitive effect168 and hence, the defence of no-fault cannot be invoked by the
respondent.

3.3.ESSENTIAL FACILITIES

It is most humbly submitted that the respondent potentially denied access to an essential facility
of using online marketing and listing application by employing unfair terms. A facility is
essential, if without its access, competitors would be subject to a serious, uneconomic handicap
making their activities uneconomical.169 The facility of an app is essential in the present time as,
as one hand, without the use of it, even established bakeries were facing losses and on the
other, it helped establish small bakeries and home bakers and make them competitive.

With the latest technological developments, having a mobile app is one of the easiest ways of
exposing customers to your brand at least once a day 170 and hence, the same projects a necessity
in the light of increasing presence of such applications.

3.3.1. COST SUBSIDIZATION

Cross subsidization practiced by a dominant firm means that it distorts competition by allocating
all or part of its cost in one product or in one geographical market (which it dominates) to another

163
Brown Shoe Co. v. United States, 370 U.S. 294 (1962).
164
FTC v. A.E Staley Mfg. Co., 324 U.S. 746 (1945).
165
Virgin Atl. Airways v. British Airways, 257 F. 3d 256.
166
M.A.P Oil Co. v. Taxaco Inc., 691 F2d 1303 (9th Cir 1982).
167
National Stock Exchange of India Ltd v. Competition Commission of India, 2014 CompLR 304 (India).
168
EUROPEAN COMMISSION - PRESS RELEASE, BRUSSELS, Commission Press Release No. IP/ 78/111 (12 Jan. 2018).
(UK).
169
State of Karnataka v. Mangalore University Non-teaching Employees Association, AIR (2002) S.C. 1223 (India).
170
Twin Labs Inc. v. Wielder Health and Fitness, 900 F. 2db 566 (2nd Cir 1990).

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 Memorandum on behalf of the Pro-forma Petitioners

product or market, enabling it to beat other competitors with offers which are made possible not
with efficiency and performance but by artificial means of internal subsidies.171

3.3.2. INCENTIVE BALANCE TEST

Welfare doctrine states when there is perfect competition in the market, the consumer is
sovereign, as his welfare is maximized. It is important to employ the incentive balance
test172which depends on a balancing of the legitimate individual interest resulting from
investments with that of public interest in ensuring that competition in the common market is not
distorted also in Art. 3 of EC treaty.

3.4.NO REAL CHOICE

It is most humbly submitted that the petitioners have not waived off their rights since they lacked
a real choice when they decided to join Appilicious and continue being listed on it, because:

(i) There was no Countervailing buying power. The expression means the customer can
switch to competing suppliers or promote new entry and have the power to negotiate and
thereby deter an enterprise with significant market share from specifying exploitive
conditions173.
(ii) They had unequal bargaining power as the parties are not on equal footing and hence
cannot affect the term to which they consent.174This situation of no parity is per se
violative of Public Policy or Public Good.175

Thus, it is most humbly submitted that that the respondent has abused his dominant position to
the detriment of competitiveness and public good.

4. THAT THE FINDINGS OF THE D.G ARE NOT ERRONEOUS, HASTY AND SUFFERING FROM
OVERREACH

It is most humbly contended that the finding of the DG are not to be questioned in the current
proceedings and even if it is brought to adjudication, it must be noted that § 36 of the Act
provides

171
Director General v Gasom Gases Pvt. Ltd., (1995) 84 Comp Cas. 615 (India).
172
United States of America v. Microsoft Corporation, 56 F3d. 1448.
173
Usha Roy v. Ans Developers Pvt. Ltd., 2017 CompLR 925 (CCI) (India).
174
J.Beatson et al, Anson’s Law of Contract 172 (Oxford University Press, Hampshire, 2010).
175
Ratanchand Hirachand v. Askar Nawaz Jung, AIR 1976 A.P. 112 (India).
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 Memorandum on behalf of the Pro-forma Petitioners

that D.G shall be guided by the principles of natural justice in discharge of its functions176 which
have been complied with and his actions didn’t suffer from overreach.

4.1.ISSUE NOT MAINTAINABLE

It is most humbly contended that the present issue is not maintainable in this court and the matter
must not be dealt with in the present proceedings since the questioning the report of the DG is to
question the acts of a public servant for which the law has provided various alternative remedies,
they suffered no legal injury and allowing such litigations would endanger his independence.

4.1.1. ALTERNATIVE REMEDIES

§ 58 declares that DG is a public servants and § 59 gives protection to action taken in good
faith.177
Administrative decisions in exercise of powers even if conferred in subjective terms are
presumed to be made in good faith.178 Furthermore, any allegation on the DG of such nature
come under offences dealt under § 166, § 167 or § 217 of the IPC which require the procedure
under § 197 of the CrPC to be followed.

4.1.2. NO LEGAL INJURY

Causing of damage, however substantial, to another person is not actionable in law 179 unless there
is also a violation of legal rights.180In this matter, even if the DG submits any report it is only for
admitting the case and subject to further review of CCI. 181The same was also reiterated in
Chemist and Druggist Association.182 The Commission does not abdicate its duty and simply
approve the findings of the DG and pass an order u/s 27 and/or 48 of the Act but the importance
of the report is limited to satisfy the court that the claim is not vexatious or frivolous. 183Thus, in
the present
case, the respondent has suffered no loss and is eligible for no relief.

176
HERBERT HOVENKAMP, FEDERAL ANTITRUST POLICY: THE LAW OF COMPETITION 504 (4d ed. 2011).
177
Lafarge India Ltd. v. Competition Commission of India, 2013 CompLR 439 (India).
178
Vodafone India Ltd. v. The Competition Commission of India, MANU/MH/2284/2017 (India).
179
Union of India v. Tulsiram Patel, (1985) 3 SCC 398 (India).
180
Robinson v. Kilvert, (1889) LR 41 ChD 88.
181
Sh. Surinder Singh Barmi v. Board of Control for Cricket in India, 2013 CompLR 297 CCI (India).
182
Ferozpur Chemist and Druggist Assn. v. CCI, 2016 CompLR 953 (CCI) (India).
183
North East Petroleum Dealer Association v. Competition Commission of India, 2016 CompLR 71 (India).
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 Memorandum on behalf of the Pro-forma Petitioners

4.1.3. Independence of the DG at stake

The consideration of work for a public authority is public interest and dispensing justice. 184 If
there are unnecessary hitches in its functioning, their working will be at stake along with the
people losing confidence in their work.185 Thus, such vexatious claims must not be allowed.

4.2.PRINCIPLES OF NATURAL JUSTICE NOT VIOLATED

It is most humbly submitted that the DG has performed his functions in a proper manner. The
powers of the D.G186 should be in conformity with the principles of natural justice 187as
this observance of natural justice is a pragmatic requirement of fair play in action.188

4.2.1. FAIR CHANCE GIVEN TO BOTH PARTIES

A person has a constitutional right of being heard and represented, and the person affected as
such may possess a legitimate expectation 189 of being given an opportunity of speaking in
matters affecting his interest as per the rule of Audi Aleterm Partem.190Fairness is that every
citizen to be treated fairly191 in his interactions with the state and its instrumentality. 192In this
matter, the DG not only heard both the parties but gave fair consideration to their arguments.

4.2.2. DECISION NOT ARBITRARY

One more principle of natural justice is procedural fairness 193 where the action must be
accompanied by reasons.194Administrative processes will require that the grounds upon which the
agency acted must be clearly disclosed and adequately reasoned.195Direct evidence is not readily
available or possible and thus, one has to fall back on the circumstantial evidence and apply the
test of human probabilities.196

184
Kamta Prasad Singh v. Regional Manager Food Corporation of India, AIR 1974 SC 376 (India).
185
Vadivel Mudaliar v. Pachiama Gounder, AIR 1974 Mad 87 (India).
186
Sebi v. Alka Syntehtic Ltd., (1999) 95 Comp. Cas. 772 (India).
187
Allahabad Bank v. Radha Krishanan Maity, (1999) 97 Comp Cas. 117 (SC) (India).
188
D.K Yadav v. J.M.A Industries Ltd., (1993) 3 SCC 259 (India).
189
A.R Antulay v. R.S Nayak, (1988) 2 SCC 602 (India).
190
2 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 1216 (8th ed. 2012).
191
D.K Yadav v. J.M.A Industries Ltd., (1993) 3 SCC 259 (India).
192
WHR WADE & C.F FORYTH, ADMINISTRATIVE LAW 494 (9th ed. 2008).
193
Union of India v. Tulsiram Patel, (1985) 3 SCC 398 (India).
194
National Institute of Mental Health and Neuro sciences v. K. Kalyana Raman, AIR 1992 SC 1806 (India).
195
Competition Commission of India v. Steel Authority of India, (2010) 4 CompLJI SC (India).
196
Asstt. Cit v. Kishore Lal Balwant Rai, 2007 17 SOT 380 (India).

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 Memorandum on behalf of the Pro-forma Petitioners

4.2.3. ACTED IN GOOD FAITH

Bad faith may be defined as referring to the state of someone, who knowingly by doing
something contrary to accepted principles of ethical behavior or honest commercial and
business practices, gains an unjust advantage or causes unjust damage to others.197

It is humbly contended that the actions of the DG were in good faith and caused no undue
damage.

Mistakes are mistakes and they can always be corrected by following due process of law. 198 The
expressions 'malfeasance’ applies in those limited cases where the State or its officers are liable
not only for breach of care and duty but that activated with malice or bad faith, not what may be
negligence or mistake.199 Thus, in the present case, the actions of the DG can at most be termed a
mistake not accompanied with malice.

4.3.NO OVERREACH OF D G’ S
POWERS

The Supreme Court of India has found that the purpose of a DG investigation is to “cover all
necessary facts and evidence in order to see as to whether there are any anti-competitive practices
adopted by the persons complained against”.200 Therefore, “the starting point of the inquiry would
be the allegations contained in the complaint” but during the course of the investigation “if other
facts also get revealed and are brought to light, the DG would be well within his powers to
include those as well in his report”.201

4.3.1. ACTED WITHIN HIS POWERS

The DG is empowered with all powers which are necessary for Conduct of investigation u/s 41
(3) of Competition Act which includes certain powers of the Civil Court under § 36 (2)
of the Competition Act.202These are, the power to summon, enforce attendance, examination of
witness,
discovery of documents and proof by affidavits. 203

197
Johnson Pump AB v. Johnson Pump Ltd. (Case R255/2006-1, 31 May 2007).
198
Chandigarh Administration v. Narang Singh, JT 1997 (3) SC (India).
199
Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1 (India).
200
A.R Antulay v R.S Nayak, (1988) 2 SCC 602 (India).
201
Excel Crop. Care Ltd. v. CCI, 2017 CompLR 355 (CCI) (India).
202
Neeraj Malhotra v. Deutsche Post Bank, 2011 102 CLA 181 (CCI) (India).
203
1 S.M. DUGGAR, GUIDE TO COMPETITION LAW AND POLICY 1080 (5th ed. 2010).
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 Memorandum on behalf of the Pro-forma Petitioners

PRAYER

Wherefore in the light of Issues raised, arguments advanced and authorities cited, the counsel on
behalf of the pro-forma Petitioners most humbly pray before this Hon’ble Commission to be
pleased to adjudge and declare that:

 The respondents are guilty of Cartelization.

 No barriers to entry were created by the Petitioner.
 The respondent abused its dominant position.
 The report of the DG is not erroneous.

And to pass any order or relief in favor of the pro-forma Petitioners which this Commission may
deem fit in the larger interest of justice.

All of which is respectfully submitted

Sd/-

COUNSEL FOR PRO-FORMA PETITIONERS

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