Global Antitrust in 2024: 10 key themes
uptick in enforcement with tougher powers and increased interagency cooperation
In an already aggressive antitrust environment, businesses should prepare for increased regulatory enforcement in 2024. Leniency applications (triggering investigations) are increasing, and antitrust authorities are enhancing their investigatory and enforcement powers while deploying existing powers more aggressively. In practice, this means broader information requests from regulators, expansive interagency cooperation (including multi-jurisdictional dawn raids), and regulators using their antitrust powers to pursue infringements outside the scope of their original investigation or to remedy alleged violations of consumer or data protection laws.
The FTC and the DOJ are broadening the scope of investigations to uncover unrelated antitrust violations. Now more than ever, businesses approaching competition authorities should be equipped with a complete understanding of global antitrust risk.
Antitrust Partner, Washington, DC
A changing legislative environment and new areas of regulatory focus
New legislation underpins competition authorities’ more proactive approach to enforcement. Recently, the German Federal Cartel Office’s (FCO) powers have expanded significantly, and the UK Competition and Markets Authority (CMA) seems likely to follow suit. The UK’s Digital Markets, Competition and Consumers Bill – expected to come into effect in late 2024 – would enable the CMA to impose tougher penalties on businesses, expedite investigations, and gather more extensive information from parties, including from foreign domiciled entities.
Agencies have also proposed new rules or rolled back guidance to expand their ambit. In the US, the Federal Trade Commission (FTC) recently proposed a rule banning non-compete clauses in labor contracts, which it continues to consider, and the US Department of Justice (DOJ) Antitrust Division withdrew long-standing guidance regarding the acceptability of information sharing between competitors. The rollback underscores the DOJ’s increased scrutiny of anticompetitive information exchanges, embodied in the DOJ’s recent suit against Agri Stats, in which the agency alleges Agri Stats organized and managed anticompetitive information exchanges between competitors. Labor markets are also increasingly under the microscope in the UK: the CMA currently has two investigations open into alleged wage-fixing.
Information sharing between foreign regulators and the CMA looks set to increase, and we can expect additional cooperation agreements between regulators and more coordinated requests for information. The CMA is also set to obtain new powers to require production of cloud data and other forms of electronically stored evidence and to make individuals subject to a duty to preserve any evidence where they know or suspect that an infringement has taken place.
Antitrust and Dispute Resolution Partner, London
Increased exercise of existing powers
Businesses should expect agencies to continue with their recent practice of issuing wide-ranging requests for information (RFIs). Often these RFIs necessitate complex electronic searches and expansive document submissions in short time frames. RFIs can be directed to an entire industry and go beyond the scope of the authority’s original investigation, requiring the production of responsive documents without any leniency discount in return. In the US, the FTC has shown an increased willingness to enforce these RFIs against non-responsive third-party recipients of an RFI. For example, the FTC recently enforced an information request against an entity that was not the subject of the FTC’s investigation, emphasizing the need for recipients of such notices to develop comprehensive response strategies and clearly assess the benefits and burdens of compliance.
Authorities’ recent practice of issuing extensive RFIs leaves companies with difficult strategic decisions on how best to preserve and, if necessary, defend their right not to incriminate themselves while avoiding significant fines for noncompliance.
Antitrust Partner, Düsseldorf
Authorities are also developing their own tools to supplement existing powers. For example, the Spanish competition authority announced in October 2023 that it had developed a tool based on machine learning that predicts whether a tender is likely to be competitive or not, which would enable it to initiate “pure” ex officio cartel investigations.
Simultaneously, authorities are launching more frequent and burdensome market studies, which can evolve into standalone investigations for affected companies or even shape future legislation to develop or protect markets. We have seen this pattern in many jurisdictions, and the FCO stated publicly that its recent market investigations will inform various upcoming investigations. This trend appears likely to continue as the CMA bolsters its powers with more procedural flexibility and the ability to impose condensed timetables on respondents.
The pattern is also playing out in Asia. The new Economic Analysis Office is bolstering the Japanese Fair Trade Commission’s investigative powers in several areas, including digital advertising, public-sector IT system procurement and cloud services. In China, updates to the Anti-Monopoly Law are empowering the State Administration for Market Regulation to increasingly act in non-horizontal cases and impose harsher penalties for serious antitrust violations. In Hong Kong and elsewhere in the region, regulators have prioritized enforcement in sectors affecting people’s livelihoods, including consumer goods and pharmaceuticals.
The recent uptick in market investigations is a strong indicator that more investigations into individual companies will follow suit. This is a global phenomenon but also something we especially expect to see in Asia. Consumer-facing sectors are particularly prone to investigation.
Antitrust Counsel, Hong Kong
The trend toward interdisciplinary investigations
Interdisciplinary investigations are on the rise as agencies leverage existing investigations to pursue ancillary or even unrelated theories of harm. For example, in the US, the FTC recently alleged, after investigating a merger, that the transaction violated a standalone antitrust prohibition against interlocking directorates without challenging the underlying transaction. To complete the deal, the parties agreed to an extensive settlement to resolve the FTC’s standalone claims regarding interlocking directorates and information exchange.
Regulators are also focusing on new legal areas. The FCO was recently empowered to investigate consumer-related issues and has focused on the intersection of antitrust and data protection laws. Similarly, the French competition and data protection authorities published a joint declaration in December 2023 vaunting increased cooperation and highlighting the “distinct but compatible objectives” and “synergies to be harnessed” in better integrating privacy and competition in the respective agendas of the two authorities. And in the UK, new legislation will enable the CMA to enforce breaches of consumer law with up to 10 percent of the company’s global turnover. We expect the CMA to use its new powers to focus on dual consumer and competition theories of harm, broadening its investigatory scope and covering issues such as data use and privacy.
The increasing importance of data in the digital economy is likely to drive further overlaps between antitrust and data regulators. Coordination and strategic alignment remain key in responding to crossover investigations.
Global Transactions Partner, London
Global interagency cooperation and coordination
Regulators are also aiming for more frequent and extensive cross-border collaboration, including via information sharing and coordinated investigations. In 2023, the DOJ and the FTC hosted an Enforcers’ Summit, convening various international enforcement agencies to discuss enforcement priorities and strategies for effective coordination. The DOJ further announced it is working with antitrust agencies around the globe on future enforcement activities, including with the CMA and the European Commission. Association of Southeast Asian Nations member states are negotiating a framework agreement to facilitate coordination on competition policy and law, which presages increased regulatory alignment in Asia. Leniency applications are also on the rise. When faced with these ever-expanding multi-jurisdictional investigations, seamless interdisciplinary legal advice is key.
Looking ahead in 2024
- Monitor legislative and market study developments. Understand the existing complex web of international enforcement powers and track new powers that regulators may exercise. Prepare for the potential implications of market studies and be ready (where relevant) to respond to extensive RFIs from regulators, recognizing that enforcers are cracking down on any perceived lack of responsiveness.
- Prepare for more expansive, interdisciplinary and interagency investigations. Be mindful of increased cooperation between competition regulators. Expect regulators to work closely together and frequently exchange information among themselves. Recognize that investigations into one market can quickly lead to additional investigations into other potential areas. Consider preparing for any tangential antitrust investigations by conducting internal risk assessments.
With thanks to Dominic Divivier, Sam Fulliton, Sarah Holland, George Lumbers and Jack Bailey for their contributions to this theme.
- 01. Taking center stage global antitrust for the mid-2020s
- 02. Merger enforcement the path to clearance gets even tougher
- 03. Investing across borders in 2024 – strengthened controls to protect domestic capabilities
- 04. Digital markets antitrust and artificial intelligence – the next frontier?
- 05. Consumer driven enforcement consumer facing businesses in the regulatory spotlight
- 06. In focus: life sciences and pharma – conduct and commercial practices under the microscope
- 07. Antitrust and sustainability will 2024 bring regulatory alignment or will the chilling effect of uncertainty persist?
- 08. Dominance and monopolization back to the future?
- 09. Antitrust investigations uptick in enforcement with tougher powers and increased interagency cooperation
- 10. Cross-border claimant strategies – focused on investigations and litigation
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