Antitrust Litigation 2023

Global Overview – Antitrust Litigation 2023

Antitrust litigation in the form of follow-on damages claims against cartels is now the norm in most European countries. The volume of claims has increased significantly in recent years since the implementation of the EU Damages Directive. France, Germany, the Netherlands, and Spain in particular have seen a sharp increase in the volume (and value) of antitrust litigation, partly fuelled by a huge volume of individual claims against the trucks cartel. Litigation has been a standard part of the antitrust enforcement process for even longer in the USA, 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.

To date, England and Wales has been the leading jurisdiction within Europe for EU-wide damages claims, in light of its highly respected commercial courts, specialist competition judges, and a litigation procedure most like the USA’s, including extensive disclosure requirements on both claimants and defendants. The first grant by the UK Competition Appeal Tribunal (CAT) of a collective proceedings order (CPO), in the Merricks v Mastercard collective action, has seen a huge boost to the development of collective (or class) actions for competition claims in the UK. However, the recent Supreme Court judgment in R (on the application of PACCAR Inc and Others) v Competition Appeal Tribunal and Others is going to require a wholescale review of Litigation Funding Agreements (LFAs) and is likely to put a break on the recent exponential growth in collective actions in the UK.

Class actions

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 collective action legislation, in 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 first grant by the CAT of a CPO in the Merricks v Mastercard collective action, in August 2021, has been a huge boost to the development of collective (or class) actions in the UK. After the CAT refused the application for a CPO on a variety of grounds, the Court of Appeal allowed the appeal by the proposed representative claimant and ordered that the CPO application be remitted to the CAT for re-hearing. In December 2020, the Supreme Court handed down its judgment dismissing Mastercard’s appeal against that judgment. The claim has now been certified by the CAT as one of (as of the date of writing) ten collective actions which have been certified. These include opt-in as well as opt-out claims, follow-on claims relying on pre-Brexit European Commission (EC) decisions (which remain binding post-Brexit), as well as standalone abuse of dominance claims, including claims against the large tech platforms Meta, Apple, and Google.

Collective actions, including the “trucks” litigation, which were previously stayed pending the outcome of the Merricks appeal, have been certified and are continuing in the CAT. However, in R (on the application of PACCAR Inc and Others) v Competition Appeal Tribunal and Others, the Supreme Court found that LFAs, pursuant to which the funder is entitled to recover a percentage of any damages awarded, do involve the provision of claims management service and, as such, are Damages Based Agreements (DBAs) within the relevant legislation. DBAs are not permitted in the UK for opt-out collective actions in the CAT. Therefore, LFAs – which are used in the majority of opt-out collective actions – will now have to be reviewed and likely amended. This is likely to put a break on the recent exponential growth in class actions in the UK.

The Brexit effect

The UK has now left the European Union and completed its post-exit transition period. This means that statutory changes passed by the UK government have become effective, bringing an end to the direct jurisdiction of EU institutions and treaties in the UK. UK courts are now able to diverge from EU competition law, and EC decisions issued after the UK’s Brexit transition period are no longer binding on UK courts. However, there are a number of grandfathering provisions which will preserve elements of the pre-Brexit framework, and UK courts will be free to have regard to EU jurisprudence in applying competition law in the UK. Importantly, decisions of the EC issued prior to the end of the Brexit transition will still be binding in the UK courts. In addition, if alleged breaches of EU competition law took place before the end of the transition period, the UK courts will be required to apply EU law as at the end of the transition. The UK’s exit from the EU has also given the UK competition authorities freedom to conduct investigations and market studies in areas of interest to the EU autonomously from the EC. The Competition and Markets Authority (CMA) has taken a renewed interest in digital markets and online platforms (eg, its market study into Apple and Google’s mobile ecosystems) and further decisions can be expected in this area, with litigation to follow, in the coming years. Where the CMA is not investigating, the EC can no longer intervene to stay standalone claims brought in the UK courts, making the jurisdiction increasingly attractive as a forum for antitrust claims with a global reach.

Claims based on an abuse of a dominant position

In Europe and beyond, as competition regulators switch their focus to the big technology companies and increase the number of investigations based on abuse of a dominant position, the number of antitrust litigation claims based on such allegations has increased. Such claims are not limited to follow-on damages claims, but encompass standalone damages claims 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. However, most of these claims are unsuccessful and the cost consequences in those jurisdictions that order costs to be paid by the losing party (including in the UK) can be significant. As a result, such claims – particularly on a standalone basis – should be considered very carefully.

Trends in antitrust investigations

In recent years, authorities around the globe have been focused on investigating a number of prominent technology companies, including the EC’s investigations into Apple’s App Store Rules and Apple Pay, the US DOJ and State Attorneys General filing a civil antitrust lawsuit relating to alleged exclusionary practices in the search and search advertising markets, and the UK’s CMA opening investigations into both Google and Apple over suspected anti-competitive behaviour. There has also been a particular focus in Europe and the UK in recent years on investigations into pharmaceutical companies, principally focusing on allegations of excessive pricing and/or anti-competitive agreements. These investigations may lead to follow-on damages claims.

Principled assessment

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.

Specialist firms

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.

Antitrust litigation in other jurisdictions

Other jurisdictions seeing an increasing volume of antitrust litigation include Israel and some jurisdictions in Latin America which have active national competition authorities, including Argentina, Brazil, and Mexico. Israel also has a class action regime and the claimant lawyers are beginning to focus on antitrust claims.

Antitrust litigation post-pandemic

Many of the legal issues arising from the pandemic to date concerned consumer law issues (rather than competition law issues), such as price gouging. Many businesses have considered co-ordinating their activities with others in response to the pandemic. This may have entailed the development of common standards, exchanging sensitive information, and co-ordination to address supply chain issues. However, where businesses are rivals or co-operation could otherwise result in the disclosure or receipt of competitors’ competitively sensitive information, such collaboration could amount to competition law infringements. Many competition authorities around the world, including the CMA in the UK, and the EC, have taken a reinvigorated interest in potential competition law breaches affecting consumer prices as the world adjusts to post-pandemic economic conditions. The CMA has stated that it will consider any evidence that companies have broken competition law, for example by charging excessive prices, and take appropriate action. Follow-on damages claims may follow from any such enforcement action. The last financial crisis resulted in the largest global cartels in terms of volume and value at the time: the Libor cartel and the foreign exchange cartel. It remains to be seen whether the next financial crisis will result in an increase in cartels and cartel damages litigation. However, the usual motivation for cartels in a financial crisis – falling profit margins – combined with increased working from home and the risk of lighter-touch compliance in the new post-pandemic circumstances is a potentially toxic combination which may well lead to an increase in cartel damages claims in years to come.