Global Antitrust in 2024: 10 key themes
Cross border claimant strategies
focused on investigations and litigation
In 2024, well-resourced competitors, commercial counterparties and claimants will continue the trend of leveraging competition regimes to further their commercial goals through increasingly sophisticated strategies. Cross-border coordination on regulatory engagement, novel litigation approaches and public relations campaigns are increasing their chances of success. Particularly attractive targets for these strategies are businesses that operate internationally. Coordinated action is already visible in the litigation and regulatory scrutiny faced by some major international firms, such as those in the tech industry.
Because clients are increasingly fighting parallel (and often simultaneous) investigations and litigation in multiple jurisdictions across the globe, deploying a coordinated litigation strategy across forums is now more important than ever.
Antitrust Partner, Silicon Valley
The (continued) rise of cross-border and cross-forum strategies
Sophisticated complainants have developed increasingly complex and coordinated cross-border litigation and regulatory strategies, combined with publicity campaigns, to maximize the impact of their complaints and to further their commercial aims.
Cross-border litigation and regulatory engagement can increase the practical effectiveness of complaints and litigation through arbitrage between different national procedural rules, such as the use of wide disclosure regimes in one jurisdiction to identify key information or documents for more targeted use in other jurisdictions. Similarly, claimants are increasingly scrutinizing defendant submissions across jurisdictions and across both defenses and regulatory submissions (where obtainable), with the aim of identifying alleged admissions or inconsistencies that could give rise to estoppel-type arguments. At the other end of the spectrum, “shotgun” strategies – making complaints to a number of regulators across different jurisdictions in an attempt to ensure regulatory engagement – are increasingly effective as they can allow complainants to benefit from the broadening and deepening of cross-border collaboration and communication between antitrust regulators globally.
These methods are often adopted alongside other forms of pressure, such as international publicity campaigns aimed at driving the complaint into public consciousness in an effort to drive complainant-friendly resolutions.
Recent examples of the deployment of some or all of these strategies include:
- A major video game and software developer launched parallel litigation seeking injunctive relief in the US, the UK and Australia against app marketplace operators alleging that the fees charged on in-app purchases constitute an abuse of dominance or monopolization. These standalone claims were combined with cross-border regulatory complaints, including to the European Commission (EC) and the UK’s Competition and Markets Authority (CMA), and a major public relations campaign. EC and CMA investigations are ongoing, while the US private plaintiffs’ cases on related claims have advanced to the merits stages. Following a trial in 2021, a US district court determined that an application marketplace operator did not have a monopoly under US federal law, but also ruled in favor of the plaintiff on a US state law claim. That case is currently on appeal. Meanwhile, the US private plaintiff went to trial against another operator in the fall of 2023, and the jury found in favor of the plaintiff on the monopoly claim.
- A semiconductor producer is facing a claim brought in England and Wales drawing on an (unrelated) infringement decision issued by the Korea Fair Trade Commission. Claimants in these proceedings are attempting to leverage the adverse factual findings of the Korean regulator and are seeking, via England’s rules of disclosure and for use in English proceedings, documents from the case file of the Korean regulator.
- The announcement of a formal investigation by the EC into allegations that a technology company was unfairly bundling communication and collaboration products with its productivity software (itself spurred by a complaint from a communication and collaboration competitor) was quickly followed by a call for action from other regulators by a separate competitor. The complainant was reported to have held informal discussions in relation to the same conduct with other regulators including in the US, the UK and Germany, while its CEO referred to its concerns in a public forum. These public comments reignited media interest in the bundling allegations, with a number of articles reporting on the comments appearing in the business press.
- A major technology company has faced regulatory scrutiny around the globe (including investigations in the US, the EU, the UK, France and Australia) regarding the company’s advertising products. At least one of these investigations was preceded by a complaint to the regulator filed by an online news publisher. Claimants have launched litigation against the company in multiple countries, including by drawing on regulatory findings in other jurisdictions, seeking damages for alleged monopolization or abuse of dominance in online advertising technology.
An expanding waterfront of jurisdictions friendly to complainants and claimants
The past few years have seen, alongside traditional hotspots for competition litigation like the US, Germany, the Netherlands and the UK, growth in major antitrust claims brought in newer forums, driven by legislative change and claimant-friendly decisions.
Antitrust and Dispute Resolution Partner, London
A key reason it is easier for complainants and claimants to arbitrage between jurisdictions is the growth in the number of attractive venues for major antitrust litigation.
Examples include Portugal, which has an established class action regime increasingly being used to bring large antitrust claims with an international angle, together with a specialist Competition Court that in the past year has listed several class actions against tech companies relating to in-app transaction fees. The local firms advising the Portuguese class representative are supported by an international firm that has brought similar suits in other jurisdictions, including the UK and the US, and are being financed by a Spanish legal services company.
Spain itself will feature prominently in the thoughts of claimant firms deciding where to bring claims, following a series of claimant-friendly rulings from the Supreme Court of Spain earlier this year, which identified a low standard of proof for claimants to establish loss and causation and endorsed the use of high-level considerations and judicial estimation to justify awards of damages in certain circumstances.
The upcoming implementation of the European Representative Actions Directive may result in further major antitrust claims in even more jurisdictions. While the directive itself does not require member states to apply the regime to competition infringements, a number of jurisdictions may in fact do so, with proposals to extend the regime to cover antitrust claims having been raised in at least Spain and France.
Litigation funders continue to regard the Netherlands as one of the more favorable jurisdictions for claimants. The country has witnessed a significant increase in competition litigation, encompassing not only traditional follow-on damages claims but also, more recently, claims related to the abuse of dominance.
Mijke Sinninghe Damsté
Dispute Resolution Partner, Amsterdam
Looking ahead in 2024
- Claimants and complainants will embrace widening opportunities. The global environment has rarely been more favorable for the use of antitrust claims and complaints to achieve commercial aims. Companies looking to use antitrust law offensively will challenge their advisors to think globally and holistically, and to propose strategies that are deep and broad enough to test defendants across multiple pressure points.
- Defendants will focus on identifying and managing regulatory risk across jurisdictions. Increasing regulatory coordination and deployment of foreign regulatory decisions in claims means that international businesses must redouble efforts to ensure that their regulatory engagement, litigation and public relations strategies are joined up, including across countries and regions, with relevant risks in one region notified to the wider business early to facilitate the identification of (and response to) coordinated international attacks.
It is more important than ever to avoid geographic and subject-matter silos. One practical step that we see increasingly adopted at an early stage when issues do arise is the engagement of a coordinating external counsel tasked with providing global oversight across jurisdictions.
Antitrust and Dispute Resolution Counsel, London
With thanks to Xander Friedlaender, Claire Leonard and Lydia Ream 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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