JUVE Law Firm of the year

Antitrust

New competition laws driving increase in damages claims

Antitrust law is undergoing a major shift: the ninth revision of the German Act Against Restraints on Competition sets forth a comprehensive reform that will take years for companies, courts and lawyers to come to grips with. In addition to payment for damages caused by cartels, it will now be possible to sue for information; this novelty and the question of how it will work out in practice could provide plenty of material for disputes. One extremely complex factor is that the greater demands for information could be used as a litigation tactic by both claimants and defendants.

Long-standing basic questions about antitrust damages claims are already occupying the Federal Court of Justice (Bundesgerichtshof). In the prominent Lottoblock II proceedings, the Karlsruhe judges recently determined just how far the binding force of an official antitrust law violation extends. In the cement cartel, the case of the construction-materials retailer Kemmler has now gone before the Federal Court of Justice. Because it involves difficult questions about statutes of limitations, which could influence numerous other damages claims, the market is following the progress of this case closely.

Truck cartel triggers gold-digger mentality

Ever since the truck cartel case, the issue of damages has seemed to be turning many lawyers into gold diggers. Companies are increasingly asking themselves how attractive leniency applications really are, when a discount on their fine hardly makes a dent in the potentially horrendous damages claims that would follow.

The European Commission and the Federal Cartel Office have reacted to the falling number of leniency applications by setting up whistleblower hotlines. However, the scandal that came to light in summer 2017 about possible agreements between Daimler, VW, BMW and other manufacturers, as well as corresponding applications for leniency, will occupy the market for a long time.

Other consequences of the new law will be felt in digital markets. The market power of platforms such as Amazon and Google is falling under increasing suspicion from the authorities, as a record fine from the EU Commission showed last summer.

Antitrust and litigation converge

The ascendancy of damages suits in the antitrust market demands greater expertise in litigation on the part of lawyers. At the big firms, antitrust and litigation practices are growing closer and sharing structures. At Freshfields Bruckhaus Deringer, Latham & Watkins, Hengeler Mueller and Gleiss Lutz, there are now several litigation partners who regularly work with antitrust lawyers in damages cases. Firms that still organize this area from within antitrust law, such as Cleary Gottlieb Steen & Hamilton and CMS Hasche Sigle, are becoming a minority.

Antitrust lawyers at firms with strong M&A practices are currently in demand for merger controls. They are being consulted early on with regard to the structuring of deals and anticipation of risks. The Boehringer/Sanofi division swap is one prominent example.

Partners at Freshfields Bruckhaus Deringer, Cleary Gottlieb Steen & Hamilton, Latham & Watkins and Linklaters are often in the spotlight here as part of international teams. As a further example of this trend, the ambitious M&A firm Sullivan & Cromwell greatly expanded its antitrust practice with laterals in order to acquire the necessary capacity.

 

The following entries deal with firms that have very different focuses and interfaces for their antitrust advice. Antitrust law overlaps substantially with ?distribution, ?state aid, ?public procurement and ?compliance. Those chapters also contain relevant information about antitrust specialists, as do the chapters on ?media, ?telecoms, ?pharmaceuticals and healthcare and ?energy.


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