The Antitrust Litigation 2019 guide provides expert legal commentary on key issues for businesses. The guide covers the important developments in the most significant jurisdictions.
Last Updated: September 18, 2019
Antitrust litigation – at least in the form of follow-on damages claims against cartels – is now the norm in most European countries. It has been a standard part of the antitrust enforcement process for even longer in the United States, Australia, Canada and New Zealand. While antitrust litigation continues to grow and embrace new procedures and approaches in those jurisdictions (not least class actions), the focus in terms of developing jurisdictions is now moving to Asia. As China, Japan and Korea are seeing a growth in cartel investigations, so antitrust damages claims in those jurisdictions will start to become more common.
In preparation for Brexit, the UK government has passed statutory changes effective on the day following the UK's exit. These will bring the direct jurisdiction of EU institutions and treaties to an end in the UK and enable the UK courts to diverge from EU competition law post-Brexit. European Commission decisions issued after Brexit will no longer be binding on the UK courts. However, there are a number of grandfathering provisions which will preserve elements of the pre-Brexit framework. Most importantly, decisions of the European Commission issued pre-Brexit will still be binding in the UK courts. In addition, if alleged breaches of EU competition law took place before Brexit, the UK courts will be required to apply EU law as at exit day.
In Europe, as the competition regulators switch their focus to the big technology companies and increase the number of Article 102 TFEU abuse of dominance investigations, so we are beginning to see a growth in antitrust claims based on Article 102. Such claims are not limited to follow-on damages claims, but encompass standalone damages claims based on Article 102 and/or injunction applications to prevent an alleged abuse of a dominant position, often as a matter of urgency. Such injunction applications are often settled privately, without a court hearing, and never see the light of day. Twenty-plus years ago in England and Wales, Article 102 was probably more commonly relied on in commercial litigation disputes than Article 101 and such litigation is becoming front and centre again.
The majority of cartel damages claims are settled prior to the trial hearing. In the more significant claims in terms of value of sales and quantum claimed, it may take many years to arrive at the point where a principled settlement can be achieved, which is a genuine estimate of the claimant's loss, including an assessment of the extent to which such loss has been passed on to third parties. Such a principled assessment will require the parties to go through the steps of disclosure of documents, factual witness statements and expert economic reports to quantify the loss suffered (potentially, in addition to interlocutory applications on issues such as jurisdiction and/or limitation). In lower-value claims, parties may consider it worth trying to achieve a settlement in advance of doing the bulk of such work, particularly where the legal costs of years of trial preparation might exceed the value of the claim itself.
Class actions are increasing in popularity in a variety of jurisdictions in Europe, particularly in England and Wales and, most recently with the introduction of new collective action legislation, the Netherlands. The significance of antitrust litigation, both as a type of general commercial litigation and as one of the pillars of competition enforcement, is demonstrated by the fact that procedures are being introduced in some jurisdictions exclusively for antitrust litigation, whether it is the introduction of disclosure of documents across Europe for antitrust damages claims or the introduction of opt-out class actions for antitrust damages claims in England and Wales. There will be numerous examples of, as yet, unidentified procedural issues which will work their way through the courts for some years to come on issues relating to identifying the relevant class or disclosure of documents, particularly in those jurisdictions in which wide-ranging disclosure is an entirely new approach in any form of litigation.
The presence of specialist (often US) claimant firms in an increasing number of European jurisdictions and the growth in litigation funding generally, but specifically in the context of antitrust damages claims, are having a significant impact on the strategy for managing such claims. US claimant firms have pursued the introduction of class actions with evangelical zeal, positioning themselves as being on the side of the angels standing alongside the competition authorities and against the combined forces of the cartelists. The English courts are struggling with the practical impact of opt-out class actions. In the most prominent collective proceedings in England and Wales, Walter Merricks CBE v MasterCard, in which loss is claimed on behalf of an estimated 47 million people, the CAT ruled that the claim was not appropriate to be brought as a collective proceeding. This judgment was overturned by the Court of Appeal, and MasterCard has successfully sought leave to appeal to the UK Supreme Court, which will determine:
The trucks litigation in the UK is currently stayed pending the outcome of the appeal.
Other jurisdictions which are seeing an increasing volume of antitrust litigation include Israel and some jurisdictions in Latin America, including Argentina, Brazil and Mexico. Israel also has a class action regime and the claimant lawyers are beginning to focus on antitrust claims.