Class actions and collective claims around the globe
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10 key themes
Mass Claims and Antitrust Litigation
IN BRIEF
Mass claims remain at the forefront of risk issues for businesses, especially those operating across many jurisdictions. There is a general uptick in this type of litigation in the antitrust space, with many novel features, largely being fueled by the willingness of plaintiffs to initiate proceedings, stand-alone or otherwise, based on a wide array of alleged abusive practices (many of which push the boundaries of conventional competition law breaches).
Private proceedings based on novel conduct claims on the rise
As antitrust agencies globally continue to investigate a broader range of abusive conduct, particularly in the technology and life sciences spaces (see Theme 2), private antitrust enforcement based on novel theories of harm continues to increase.
It has never been more important to assess antitrust mass claims exposure on a global basis. The proliferation of US class actions together with the emergence of new fora in continental Europe and the continued evolution of the UK collective proceedings regime creates a complex web of risks and opportunities.
Ricky Versteeg
Antitrust and Dispute Resolution Partner, London
This is particularly evident in the United States, where we are seeing private plaintiffs asserting more claims based on single-firm conduct – and in particular monopolization claims against large technology companies. Many of these claims depend on novel theories targeting conduct that US courts have not previously considered unlawful (such as limiting interoperability and self-preferencing), seeking to achieve results through litigation that have (as of this writing) stalled in Congress. While private cases traditionally followed investigations led by the federal antitrust agencies, plaintiffs are increasingly bringing claims based on the investigations of foreign enforcers and state attorneys general as well as claims developed through their own efforts. The uptick in monopolization cases coincides with the DOJ prosecuting fewer large-scale cartels, leading to a decline in the overall number of private antitrust cases. Five years ago, private plaintiffs were filing more than 600 cases per year in the United States, but they brought just half as many cases in 2022.
With government agencies pressing technology companies to change how they operate going forward, private plaintiffs in the United States will not be far behind in trying to extract substantial amounts from the same companies based on past practices.
|
Andy Ewalt |
Thriving mass claims environment in the UK and Europe
2022 has witnessed a surge of collective proceedings in the UK. Ten applications for collective proceedings were filed this year (with others threatened) across a wide range of industries and subject matter, including cryptocurrency and environmental issues. A significant number of recent claims relate to an alleged abuse of a dominant position, and a majority have been brought on a stand-alone basis (where there is no underlying infringement decision by a competition authority).
Companies serving substantial numbers of customers face significant risk in the UK from opt-out competition class actions; in particular, claims involving novel alleged abuses of dominance based on general consumer protection, product liability or privacy breach grounds.
Mark Sansom
Antitrust and Dispute Resolution Partner, London
A common theme of cases in the UK is the use of competition collective actions to pursue fundamentally consumer protection complaints rather than conventional alleged competition law breaches. Claims include that:
- a social media platform abused a dominant position by requiring users to give access to their personal data to access the platform, without monetary return;
- a mobile phone handset maker failed to be transparent to its customers about an alleged battery life issue supposedly caused by an operating system update and that it failed proactively to offer a remediation service; and
- wastewater utilities abused their market position to the detriment of consumers by allegedly failing to comply with environmental legislation – the first “environmental” antitrust class action.
While we are not yet seeing across all EU jurisdictions the sorts of expansionist abuse-based damages claims that are prevalent in the United States and emerging in the UK, there has, nevertheless, been a significant increase in the volume of competition damages claims across all member states. In the Netherlands, the number and size of competition law damages claims are set to grow even where there is limited connection to the Netherlands, though this has resulted in jurisdictional challenges. The Dutch class action rules now allow collective damages claims, and a class action for damages relating to competition infringements is likely soon to follow. In France, there has also been a recent increase in competition damages claims going to trial in the civil and administrative courts. The actions are stand-alone and follow-on with an increase in assignment-based mass claims and claims handled by a single law firm on behalf of many individuals. In Portugal, opt-out remedies are being pursued for alleged abuse of dominance by university professor Fabrizio Esposito (instead of the usual consumer associations), assisted by Portuguese, English and Spanish counsel acting on behalf of 6.5 million individuals.
In Spain, factors such as lower litigation costs, unlimited contingency fees, the direct involvement of consumer and sector associations, and claimant-friendly court decisions come into play. This has resulted in follow-on damages claims thriving, with courts awarding damages even in the absence of detailed quantifications.
Spain is now at the forefront of antitrust litigation in continental Europe, and this will only increase in the years to come given the current leading role of litigation funds.
|
Natalia Gómez |
This environment has led litigation funds, self-financing plaintiffs’ law firms or combinations of the two to develop and implement a massive, but fragmented, litigation model. And first-instance judgments can be rendered in a few months. Further, courts are considering mechanisms to make procedural rules even easier. For example, there has been a recent referral from the Spanish Supreme Court to the European Court of Justice about serving claims on the Spanish subsidiary of a defendant, even if the defendant has not been served, to avoid claimants incurring translation costs.
In Germany, the Federal Court of Justice has recently taken a more liberal approach to the admissibility of assignment-based mass claims (although not in antitrust matters). The German legislator is also currently working on the introduction of yet another tool for collective redress implementing the European Directive on Representative Actions (for further information please see our 2023 Class and Collective Actions Guide). As things stand, procedures will be available to both consumers and small businesses. It remains to be seen whether such potential claimants will make use of them in order to pursue cartel damages.
In 2023, many German cases will enter into the ‘evidence phase.’ How will the courts deal with quantum reports by econometric experts? This is unprecedented in Germany – especially in mass claims scenarios with numerous cases pending before different courts.
|
Roman A. Mallmann |
Looking ahead in 2023
-
The focus on large technology companies will continue to intensify in the United States as federal and state competition authorities and private plaintiffs push antitrust law up to (and perhaps beyond) established boundaries to reach an increasingly wide array of practices. Accordingly, there will likely be no shortage of antitrust litigation, particularly in the technology sector, even if there remain fewer high-profile cartel prosecutions than there were five years ago.
-
In the UK, some cases will move toward consideration of the substantive merits of the claims. The courts will then need to consider whether (i) such claims involve an overreach of competition law; (ii) they would result in a divergence opening up between UK and EU law on abuse of dominance; and (iii) it is appropriate for antitrust to be used as a catch-all law of unfair competition or a general consumer protection panacea.
-
There will be no respite in Spain. Spain will remain a hot spot for private antitrust litigation. The claimant bar and litigation funders have certainly not run out of ideas for bringing these claims.
-
The German courts will have to handle quantum reports by court-appointed experts. Fierce opinion battles are to be expected here, including long expert hearings. It will be interesting to see how deeply courts will dive into the econometrics and how they will deal with remaining uncertainties, as this is largely unprecedented in Germany.
With thanks to Ashmita Garrett, Alex Holroyd, Kerstin Lampert, Franziska Leinemann, Jérôme Philippe, Eileen Ramos and Lauren Vaca for their contributions to this theme.
10 key themes
Mass Claims and Antitrust Litigation
IN BRIEF
Mass claims remain at the forefront of risk issues for businesses, especially those operating across many jurisdictions. There is a general uptick in this type of litigation in the antitrust space, with many novel features, largely being fueled by the willingness of plaintiffs to initiate proceedings, stand-alone or otherwise, based on a wide array of alleged abusive practices (many of which push the boundaries of conventional competition law breaches).
Private proceedings based on novel conduct claims on the rise
As antitrust agencies globally continue to investigate a broader range of abusive conduct, particularly in the technology and life sciences spaces (see Theme 2), private antitrust enforcement based on novel theories of harm continues to increase.
It has never been more important to assess antitrust mass claims exposure on a global basis. The proliferation of US class actions together with the emergence of new fora in continental Europe and the continued evolution of the UK collective proceedings regime creates a complex web of risks and opportunities.
Ricky Versteeg
Antitrust and Dispute Resolution Partner, London
This is particularly evident in the United States, where we are seeing private plaintiffs asserting more claims based on single-firm conduct – and in particular monopolization claims against large technology companies. Many of these claims depend on novel theories targeting conduct that US courts have not previously considered unlawful (such as limiting interoperability and self-preferencing), seeking to achieve results through litigation that have (as of this writing) stalled in Congress. While private cases traditionally followed investigations led by the federal antitrust agencies, plaintiffs are increasingly bringing claims based on the investigations of foreign enforcers and state attorneys general as well as claims developed through their own efforts. The uptick in monopolization cases coincides with the DOJ prosecuting fewer large-scale cartels, leading to a decline in the overall number of private antitrust cases. Five years ago, private plaintiffs were filing more than 600 cases per year in the United States, but they brought just half as many cases in 2022.
With government agencies pressing technology companies to change how they operate going forward, private plaintiffs in the United States will not be far behind in trying to extract substantial amounts from the same companies based on past practices.
|
Andy Ewalt |
Thriving mass claims environment in the UK and Europe
2022 has witnessed a surge of collective proceedings in the UK. Ten applications for collective proceedings were filed this year (with others threatened) across a wide range of industries and subject matter, including cryptocurrency and environmental issues. A significant number of recent claims relate to an alleged abuse of a dominant position, and a majority have been brought on a stand-alone basis (where there is no underlying infringement decision by a competition authority).
Companies serving substantial numbers of customers face significant risk in the UK from opt-out competition class actions; in particular, claims involving novel alleged abuses of dominance based on general consumer protection, product liability or privacy breach grounds.
Mark Sansom
Antitrust and Dispute Resolution Partner, London
A common theme of cases in the UK is the use of competition collective actions to pursue fundamentally consumer protection complaints rather than conventional alleged competition law breaches. Claims include that:
- a social media platform abused a dominant position by requiring users to give access to their personal data to access the platform, without monetary return;
- a mobile phone handset maker failed to be transparent to its customers about an alleged battery life issue supposedly caused by an operating system update and that it failed proactively to offer a remediation service; and
- wastewater utilities abused their market position to the detriment of consumers by allegedly failing to comply with environmental legislation – the first “environmental” antitrust class action.
While we are not yet seeing across all EU jurisdictions the sorts of expansionist abuse-based damages claims that are prevalent in the United States and emerging in the UK, there has, nevertheless, been a significant increase in the volume of competition damages claims across all member states. In the Netherlands, the number and size of competition law damages claims are set to grow even where there is limited connection to the Netherlands, though this has resulted in jurisdictional challenges. The Dutch class action rules now allow collective damages claims, and a class action for damages relating to competition infringements is likely soon to follow. In France, there has also been a recent increase in competition damages claims going to trial in the civil and administrative courts. The actions are stand-alone and follow-on with an increase in assignment-based mass claims and claims handled by a single law firm on behalf of many individuals. In Portugal, opt-out remedies are being pursued for alleged abuse of dominance by university professor Fabrizio Esposito (instead of the usual consumer associations), assisted by Portuguese, English and Spanish counsel acting on behalf of 6.5 million individuals.
In Spain, factors such as lower litigation costs, unlimited contingency fees, the direct involvement of consumer and sector associations, and claimant-friendly court decisions come into play. This has resulted in follow-on damages claims thriving, with courts awarding damages even in the absence of detailed quantifications.
Spain is now at the forefront of antitrust litigation in continental Europe, and this will only increase in the years to come given the current leading role of litigation funds.
|
Natalia Gómez |
This environment has led litigation funds, self-financing plaintiffs’ law firms or combinations of the two to develop and implement a massive, but fragmented, litigation model. And first-instance judgments can be rendered in a few months. Further, courts are considering mechanisms to make procedural rules even easier. For example, there has been a recent referral from the Spanish Supreme Court to the European Court of Justice about serving claims on the Spanish subsidiary of a defendant, even if the defendant has not been served, to avoid claimants incurring translation costs.
In Germany, the Federal Court of Justice has recently taken a more liberal approach to the admissibility of assignment-based mass claims (although not in antitrust matters). The German legislator is also currently working on the introduction of yet another tool for collective redress implementing the European Directive on Representative Actions (for further information please see our 2023 Class and Collective Actions Guide). As things stand, procedures will be available to both consumers and small businesses. It remains to be seen whether such potential claimants will make use of them in order to pursue cartel damages.
In 2023, many German cases will enter into the ‘evidence phase.’ How will the courts deal with quantum reports by econometric experts? This is unprecedented in Germany – especially in mass claims scenarios with numerous cases pending before different courts.
|
Roman A. Mallmann |
Looking ahead in 2023
-
The focus on large technology companies will continue to intensify in the United States as federal and state competition authorities and private plaintiffs push antitrust law up to (and perhaps beyond) established boundaries to reach an increasingly wide array of practices. Accordingly, there will likely be no shortage of antitrust litigation, particularly in the technology sector, even if there remain fewer high-profile cartel prosecutions than there were five years ago.
-
In the UK, some cases will move toward consideration of the substantive merits of the claims. The courts will then need to consider whether (i) such claims involve an overreach of competition law; (ii) they would result in a divergence opening up between UK and EU law on abuse of dominance; and (iii) it is appropriate for antitrust to be used as a catch-all law of unfair competition or a general consumer protection panacea.
-
There will be no respite in Spain. Spain will remain a hot spot for private antitrust litigation. The claimant bar and litigation funders have certainly not run out of ideas for bringing these claims.
-
The German courts will have to handle quantum reports by court-appointed experts. Fierce opinion battles are to be expected here, including long expert hearings. It will be interesting to see how deeply courts will dive into the econometrics and how they will deal with remaining uncertainties, as this is largely unprecedented in Germany.
With thanks to Ashmita Garrett, Alex Holroyd, Kerstin Lampert, Franziska Leinemann, Jérôme Philippe, Eileen Ramos and Lauren Vaca for their contributions to this theme.
10 key themes
- Introduction
- 01. The Changing Face of Antitrust
- 02. Is Merger Control Fit for Purpose – Evolution or Revolution?
- 03. Foreign Direct Investment – Record Year for Prohibitions and New Developments
- 04. Financial Investors – In The Regulatory Spotlight
- 05. Collaboration and Licensing – New Risks and Opportunities
- 06. A Vertical Revival – Expanding The Enforcement Toolkit
- 07. A New Age For Investigations – Prepare for Agencies to Come Knocking
- 08. Digital Regulation – Contagion of New Rules
- 09. Mass Claims and Antitrust Litigation
- 10. Trade and Subsidy Control
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