In January 2022 Kelly Daly and John Lazar directed questions concerning global trends in antitrust and competition to a respected group of law firm leaders. Their perspectives are gathered and excerpted below.
What notable 2021 event or trend has impacted how companies approach their antitrust and competition litigation recovery efforts in 2022?
Philip Iovieno: The main trend in 2021 was the growing escalation of individual opt-out lawsuits filed by companies affected by antitrust violations. An escalating trend for years now, it has increased substantially in the last few years. Going back to the early 2000s and the Vitamins case, there were several companies that opted out, and then from 2008-2015 there were a number of price-fixing cases in the electronics industry (LCD, CRT, Batteries, Capacitors, etc.) where more companies opted out but the total number of opt-out suits was still in the low dozens or fewer. Since then, opt-outs have significantly expanded and the Broiler Chicken antitrust case is a prime example. The first Broiler Chicken opt-out case was filed in 2018, followed by a flood of new cases filed in 2021 by major companies such as McDonald’s, Costco, Burger King, Wendy’s, Chick-Fil-A and others. To date, there are over 180 individual opt-out plaintiffs, representing well over 50% of the entire direct purchaser market. History has shown time and again that companies with large antitrust claims recover significantly more by opting out than they do remaining an absentee member of the class. Companies are increasingly aware of this reality and are seeking to maximize their recoveries when they’ve been the victims of established antitrust violations. Major corporations’ growing awareness and willingness to pursue individual opt-out cases when they are victims of antitrust conspiracies has led to a significant expansion in antitrust litigation generally and is a trend I see as further escalating in the years to come.
Kate Vernon: 2021 was a year in which we saw the grant of collective proceedings orders (CPOs) by the Competition Appeal Tribunal (CAT), more and more standalone business to business claims were filed in the High Court and CAT, and many settled there, too. These factors continued the trend of competition damages litigation being something that is a real option for those businesses that have been harmed by anti-competitive conduct, or for those that advocate on behalf of consumers harmed by anti-competitive conduct. Funders’ continued willingness to fund meritorious claims of this nature is key, and there is now a significant established practice that gives comfort and reassurance for the commencement and litigation of claims.
Given the changing regulatory environment and stronger focus on cross-border merger enforcement, how should clients prepare?
Philip Iovieno: Right now, we’re dealing with a lot of regulatory uncertainty, particularly in the US, and clients need to get comfortable with that uncertainty and prepare for it. We are no longer in a world where parties can agree to merge and work out the details later—merging parties need to think hard about possible challenges, outcomes and contingencies long before they get to the regulators. Regulators are not only questioning the traditional business and economic impact of mergers, but also issues like labor, social and governance considerations and the environment. The US Federal Trade Commission (FTC) in particular has expressed frustration about mergers cleared in the past and has recently reinstated its so-called “Prior Approval Policy”. This policy, dormant for the past 25 years, seeks to deter merging parties from pursing anticompetitive deals by requiring that any settlement by consent order include a prohibition on further acquisitions in an affected market (and sometimes even broader markets) for at least ten years. The FTC recently challenged DaVita Inc.’s acquisition of certain of the University of Utah’s dialysis services. To get the deal through, DaVita had to agree with the FTC not only to divest certain dialysis clinics (a traditional remedy to allegations of an anticompetitive merger), but it also had to agree on restrictions related to physician non-compete clauses and non-solicitation practices for a period of two years—and of course to the terms of the Prior Approval Policy, meaning DaVita cannot seek future acquisitions or mergers regarding dialysis in Utah without prior approval of the FTC for ten years. Companies have been dealing with cross-border transactions and enforcement long enough that I think most are already aware of the risk and can prepare for the possibility of inconsistent merger enforcement decisions, although the uncertainty in the US makes it harder to predict the actual inconsistencies and to craft common remedies. What’s less obvious is the coordination that occurs among regulators, which has been increasing, and depending on the jurisdiction may not be disclosed to the merging parties.
Kate Vernon: The best preparation is early assessment of where and how the competition authorities may be expected to be involved; and to recognize that the authorities talk to each other about their investigations and conclusions. Coordination on strategy, remedy potential and substantive analysis is critical across the different jurisdictions. It is also important to know the endgame and plan for it—so if a prohibition or divestment order is something the parties want to challenge in the courts, then from the outset it is important to position arguments with future litigation in mind.
With the EU aggressively bringing suits against US tech companies for anticompetitive behavior, do you expect the US to respond with increased regulation of its digital economy?
Karma Giulianelli: Yes, we definitely see more awareness from regulators worldwide of the impact of consolidated power, particularly in the digital economy. Recent US administrations have focused on a handful of companies that have power in markets that impact much of our daily activity. The focus on Facebook and Google from federal and state competition authorities in the courts is a precursor to increased regulation, particularly if the current antitrust laws prove inadequate to address some of the issues we face in the digital economy.
Kate Vernon: I think there is a general global trend towards an increased regulatory focus on the digital economy. It is inevitable that competition law will form a core part of the global analysis of the challenges and opportunities of the digital economy and we will see many different kinds of action across all major jurisdictions.
Philip Iovieno: There is little debate in the US that there should be increased regulation of the digital economy—it might be the only major issue with bipartisan support out there right now, and the antitrust leadership in both the prior Trump administration and the current Biden administration have made regulation of digital markets a priority. The question being debated is whether, at the end of the day, the antitrust laws or potential new laws are the most effective means to that end. And if it is to be the antitrust laws, do they need to be reformed to do the job? That said, US federal regulators have been directed by an Executive Order from the Biden White House to make enforcement of the tech sector a priority. They also have been joining with the attorney generals of various states to bring lawsuits against tech giants like Google and Facebook. I would not characterize any of this as a “response” to the fact that the EU has brought suits against big US tech companies, so much as the fact that those companies have an outsized impact and are an enormous part of the US economy and compel close scrutiny. US regulators have been active in regulating fintech for quite a while and this, too, is an important part of regulating the digital economy. One reason we’ve seen the large actions against US tech companies in Europe is that European antitrust laws are written to prevent all monopolies, while US laws recognize that some monopolies may be beneficial. On the flip side, the US allows for private enforcement of the antitrust laws as a means of regulation in the form of class-actions and individual lawsuits, and there are dozens of major lawsuits against the tech giants (Google, Facebook, Amazon and Apple) in this posture. The antitrust regulators in the G7 countries recently had a summit in the UK to discuss and compare notes on regulating digital markets, and I expect we will see continued efforts in that direction as well.
We routinely encounter clients who aren’t aware of valuable existing claims they could pursue on an opt out basis, often due to the resources needed to stay on top of the complex universe of claims based on anticompetitive behavior. Is that also your experience? What do you see as the best roles for law firms and legal finance providers in educating clients about these potential affirmative recoveries?
Kate Vernon: This is a really important issue as we see many opportunities arising from lawyers and/or funders educating themselves first about the potential claims that may exist and then talking to their clients about these. I think the best role for law firms and for funders to work together to provide clients with worked up opportunities and to make it as easy as possible for a claim to be assessed from a business perspective by clients. Law is fundamentally a people business, and, as human beings who are busy, we all need to have clear and fulsome information to be able to make decisions, especially if speed is of the essence. The investment of time in really thinking through opportunities and how they could work is so important in order to be able to prepare clear and full analysis.
Philip Iovieno: I have certainly found it to be the case that often companies are not aware of potential, very valuable recovery opportunities. More recently, however, I have found it more common for companies to be aware that these claims exist but unsure whether and how to pursue them. It is in this space where I see an important place for a law firm or litigation funder to assist. A substantial part of my practice involves analyzing potential claims for companies and advising them on the different strategic alternatives for pursuing that claim, ranging from doing nothing and staying in the class to opting out, with many other strategies in between. While opting out often makes sense for large purchasers, there is no simple formula for determining what to do, and I believe the best value I can provide to these companies is to help them align their business interests with the ultimate strategy they choose to pursue for these claims.
No one size fits all—these are complicated cases with a lot of moving parts and different companies can have different strategies and goals. Indeed, it is not uncommon for me to spend a year or more in this process assisting a company to determine what’s best for it, even before we discuss a fee arrangement should they decide to pursue the case. I believe that this process in and of itself provides considerable value for a company, as it shows that they are vigilantly fulfilling their fiduciary obligations by considering their options. In my experience, should a company decide to opt out, it is most common they will pursue the claim on a full contingency fee basis, but there are many different kinds of alternative fee arrangements, such as tiered contingency fees, for a company to consider. I also see more and more companies utilizing an RFP process to select counsel with the proper experience who can provide the type of representation they are familiar and comfortable with and who best aligns with that company’s particular business goals for the litigation. As such, doing the diligence ahead of time to determine the company’s objectives and identify the best strategies is time well spent.
Karma Giulianelli: While large companies with significant claims are becoming more sophisticated about their affirmative recovery programs, we find that pursuing these claims often is not the focus of a legal department or the business. Pursuing affirmative claims typically doesn’t take on the urgency that defending against significant downside exposure does. Obtaining internal funding and resources to pursue such claims can be a challenge, particularly where the business is facing other more pressing issues. Still, companies often leave significant money on the table by failing to monitor and explore these claims. Some law firms provide routine counseling for potential opt outs, but in-house legal departments can also designate a lawyer to monitor a handful of potentially relevant MDLs to determine whether they merit an opt-out discussion. Litigation funders can aid in this discussion by providing the resources to obtain outside counsel to dig into potential claims and damages ranges before making the decision to opt out one way or another. Sometimes this involves months of work to determine the best course.
What are you watching for in antitrust and competition in 2022?
Philip Iovieno: We’ve been in a period of market uncertainty, starting with the Trump administration’s trade wars and continuing today in the form of supply chain disruptions, but also not much scrutiny in terms of cartel enforcement. I work frequently with experts who study cartels and business behavior and one thing I’ve learned is that anticompetitive conduct such as price-fixing and allocation of markets is often linked to or has its origins in times of industry disruptions and uncertainty. Supply and demand shocks in particular create incentives for competitors to talk to each other, which can lead to anticompetitive outcomes under certain circumstances. Separately, one development I’ve been watching is the growth of private enforcement of competition laws in the UK and Europe, including collective actions. We’ve seen more US-style approaches, including litigation funding, taking hold there. It will be interesting to see how these European actions develop and what kind of opportunities they present.
Karma Giulianelli: There are a few potential significant developments on the horizon, including how courts will deal with the question of market definition in the high-tech world where products are not physical, but rather defined by sets of code and how market power will be assessed in these markets. The Google cases pending in the Northern District of California and Washington, DC, will provide some insight into how to look at relevant markets and power in a world defined by a handful of high-tech companies. We will also continue to keep an eye on class certification standards, and how the Ninth Circuit assesses those standards in the context of cases where statistical evidence is used to show class-wide damages. We will keep an eye out for the outcome in Olean Wholesale Grocery Cooperative, Inc. v Bumble Bee Foods LLC for more insight into the standards for class certification.
Kate Vernon: The progression of the opt-out regime past the grant of the recent CPOs by the CAT is a key focus. We have lived through six years of observing how the pre-CPO/grant of CPO phase works out and now we are moving on to see how these cases progress and ultimately go to trial or settle. This will be a fascinating year for the class actions regime in the UK.
I am also very interested to see how the Competition and Markets Authority (CMA) develops its investigations mandate now that we are fully post the transition period after Brexit and how this shakes out in the UK courts in terms of follow-on actions. There is still a long tail of EU follow-on potential, but the CMA’s new investigations will also gather pace and provide new and exciting developments in the law and procedure.
Karma Giulianelli is a partner at Barlit Beck in Denver where she has tried cases for Fortune 500 companies in almost every region of the country. With over 25 years of experience, her cases have included a broad range of bet-the-company litigation, including antitrust, contract, product liability, fraud, and securities cases. Before joining the firm, she was a trial attorney for the Antitrust Division at the Department of Justice, where she was a member of the core trial team in United States v. Microsoft.
Philip Iovieno is a partner in Cadwalader’s New York office and the co-chair of the firm’s Antitrust Litigation Group. He represents plaintiffs and defendants in antitrust and other complex commercial litigation in federal and state courts throughout the country. He has recovered more than $1 billion for corporate victims of various price-fixing cartels and other antitrust violations and has also obtained dismissals of a wide variety of antitrust and other claims brought against Fortune 500 and private corporations, as well as non-profit institutions.
Kate Vernonis a partner and Head of the Competition Litigation Practice in Quinn Emanuel’s London office.
She has vast experience in EU and UK competition law and was previously head of the UK Competition Team at DLA Piper. She is Quinn Emanuel's GDPR internal compliance partner and advises clients on commercial litigation and regulatory investigations together with GDPR compliance and GDPR / UK Data Protection Act litigation.
Kelly Daley is a Director and the head of Burford’s US commercial underwriting group, which assesses and prices investment opportunities in US commercial litigation. Prior to joining Burford, she was a senior litigator at Orrick Herrington. Her practice focused on the litigation needs of media and technology companies, including intellectual property litigation, contract disputes, content protection and product liability.
John Lazar is a a Managing Director with responsibility for overseeing the growth of Burford’s substantial business in the UK and Europe by developing Burford’s strategy and marketing opportunity. Prior to joining Burford, he was a litigator at Cravath, Swaine & Moore and at Wollmuth Maher & Deutsch.