Aren’t damages claims for cartels?
While damages claims are often thought of in the context of harm caused by cartels, there is an increasing trend of damages claims against dominant companies.
There are a number of claims in particular against Big Tech. This includes a class action launched against Google in the Netherlands in October 2022 – on behalf of 13.4 million Android users allegedly overcharged up to €305 million when using the Play Store. There are also damages actions against Big Tech in a number of other jurisdictions, including the US and UK regarding issues such as iPhone battery life, app store terms and conditions and Facebook terms and conditions.
Increased litigation against Big Tech reflects the focus of investigations by authorities – damages claims are inevitable against a background of numerous investigations. New digital regulatory regimes are also expected to lead to further claims – see, for example, our recent briefing here on private enforcement regarding the EU’s new DMA regime.
But claims aren’t only against Big Tech
Dominant, or near dominant, companies in all sectors should be aware that claims are being brought against companies active in a range of sectors – not only Big Tech. In the UK, for instance, there are damages claims for alleged abuses of dominant position against firms active in sectors such as rail, telecoms and metals, in addition to number of claims against Big Tech.
More generally this reflects that damages claims are becoming normal for any type of suspected antitrust infringement – not only horizontal cartel conduct, but also vertical arrangements (e.g. RPM) and abuse of a dominant position or monopolization.
Latest antitrust and competition trends
Merger control and jurisdictional creep
An increasing challenge for M&A parties is identifying where their deals will be reviewed in a context where merger control authorities are finding new ways to take jurisdiction over transactions falling below traditional (usually turnover-based) notification thresholds
Merger control and new theories of harm
Linked to jurisdictional creep and killer acquisitions is the trend of competition authorities looking at new theories of harm when assessing transactions for substantive concerns, with much greater focus in particular on innovation competition, dynamic competition and vertical concerns.
Internal documents, gun-jumping and merger control penalties
An enduring merger control trend is the authorities’ greater focus on parties’ internal documents, and the related risk of penalties and delays to reviews where parties fail to submit complete responses to RFIs or provide incomplete or misleading submissions.
Growth of foreign direct investment (FDI) and national security regimes
Many countries are continuing to introduce and strengthen their FDI and national security regimes, due to an evolving appreciation of what is a risk to national security and lines being blurred with economic stability.
Digitalization, Big Tech and copycat antitrust investigations
A noticeable global trend is more antitrust investigations into Big Tech, in particular for suspected infringements of rules that prohibit the abuse of a dominant position or monopolization, as well as privacy concerns.
Antitrust investigations and new areas of focus
As well as the recent focus on Big Tech, there are a number of other new areas of focus for antitrust authorities. See below to learn more about these.
More aggressive antitrust enforcement?
In the US, the Biden administration is synonymous with more aggressive enforcement in all areas of antitrust, emphasised by Lina Khan (FTC Chair) and Jonathan Kanter (DOJ Assistant Attorney General for the Antitrust Division).
The continuing rise of antitrust damages actions
The US and Canadian antitrust damages regimes are well-established and continue to thrive.