The scope and scope of investigations by global competition authorities have changed significantly, as has the number of antitrust litigation. With a change in administration in the US and political shifts in other jurisdictions, an increased focus on enforcement of competition and antitrust laws by regulators, rapidly changing guidelines and increasing cooperation between regulators, it is expected that the number of collective or mass competition lawsuits will increase in the year To be continued in 2021. Not only do enforcement authorities take into account the business and economic impact of mergers, but recent developments also suggest that they are playing the role of competition law in achieving goals related to labor, environmental and sustainability agreements, as well as other social and governance issues evaluate.
On June 22nd, a panel of competition / antitrust experts from the US, Canada and Europe discussed the increased scrutiny of cross-border merger and competition investigations, the impact of these developments on legal strategy and the new technology tools used by the parties for efficient and transparent results to deliver for customers. The panel also discussed antitrust disputes and the impact of government investigations on civil claims. The panel included:
- Tom Bolster, Partner, antitrust proceedings, Hausfeld, London / Paris
- Mark Katz, Partner, Competition, Antitrust & Foreign Investment Review, Davies Ward Phillips & Vineberg, Toronto
- Doug Jasinski, Counsel, Antitrust, White & Case, Washington, DC
- Bishu Solomon Girma, Vice President, Customer Service, Epiq Global, EMEA
Cross-border cooperation
The supervisory enforcement of competition and antitrust law, in particular the enforcement of cross-border mergers, was given greater focus. Antitrust authorities have maintained their tough approach and cross-border mergers are often subject to foreign investment scrutiny.
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When transactions are subject to concurrent investigations e.g. B. through the Department of Justice (DOJ), the Federal Trade Commission (FTC), the Canadian Competition Bureau (the Bureau), the European Commission and the Competition and Markets Authority (CMA), coordination between regulators on the legal strategy can be relied upon and impact the approach to responding to fusion investigations. While there can be overlap in coordination, the unique laws governing a particular region can change the course and outcome of the transaction.
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Coordination in merger control is a ubiquitous and unavoidable part of doing business internationally. Law enforcement agencies have worked successfully together on merger investigations affecting their jurisdictions for many years. For example, the Competition Bureau requires parties to disclose which other agencies are investigating a transaction and asks for waivers to speak to them. The Bureau believes that it does not need the consent of the merging parties to share information with other authorities as it is allowed under competition law.
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The parties must also consider the coordination required from a data protection perspective, as the information and the nature of the matters are subject to rules and guidelines that govern how and when it may be disclosed. Cross-border litigation and mergers require a consistent approach to the process and information provision.
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Despite international coordination by the regulatory authorities, the results do not necessarily match. In Canada, for example, the Competition Bureau has decided not to refuse transactions that have been challenged in another jurisdiction, as in Canada a formal one Efficiency defensewhich allows otherwise anti-competitive mergers to be justified on the grounds that the likely anti-competitive effects are outweighed by the likely efficiencies resulting from the merger.
Beyond mergers
Global enforcement is not limited to mergers only. Cooperation between regulators in investigating cartels has continued, including in older, high profile cases such as the Air Cargo Case and newer ones such as the Maritime Car Carrier Case, although the course of action and results may vary by jurisdiction.
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In order to ensure successful coordination in cross-border investigations, the parties need to consider where documents and witnesses are located, both from a practical and legal point of view, and whether waivers are required.
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The increasing international coordination underscores the benefits of dealing with lawyers and service providers who have a global presence and skills to support this investigation.
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In the UK, there has been a significant increase in stand-alone litigation rather than follow-up litigation, as well as an increase in competition claims in countries like France, even though France is not perceived as a disclosure-friendly jurisdiction.
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Competition disputes have been rampant in the United States for some time, and a significant number of antitrust class action lawsuits follow antitrust investigations, not only in the United States but also investigations in other jurisdictions, to retrieve this foreign evidence for class action litigation purposes in the United States.
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When providing information to law enforcement agencies for the purpose of reviewing a merger, information discovered in connection with a merger investigation may lead to other types of investigations.
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Cross-border investigations can also increase the likelihood of civil and antitrust litigation by providing plaintiffs with richer and more diverse sources of evidence about a cartel to use in domestic litigation, and sometimes by boosting litigation on the ground.
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Panellists highlighted the importance of maintaining data in complex cross-border investigations and enforcement actions, especially when there is a likelihood of a similar investigation in another jurisdiction where parties may consider individual records for multiple jurisdictions. While enforcement may have ended in a particular jurisdiction, it may not have ended worldwide.
Use of advanced technologies
Using advanced litigation technology can manage costs and improve outcomes for customers. This includes data mapping for the preservation of information sources, the use of legal hold technology and database archiving. Providing analysis during early case assessment is critical to identify potential problems, risks, or issues that support your position, such as: E.g. using key documents from the merger review to find similar documents in the extended litigation dataset.
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