January 31, 2023

Private Antitrust Litigation in the UK and the US: Comparison and Strategic Considerations


The UK has been relatively slow to foster the development of private competition law damages litigation. Historically, UK damages actions have failed to prove attractive enough for claimants. This is despite the UK having several concurrent regulators with competition law enforcement powers, the introduction of the specialist Competition Appeal Tribunal (CAT), the 2014 overhaul of the UK competition law regime (including the UK implementation of the EU Damages Directive (2014/104/EU), and the EU courts' efforts to galvanize a pan-EU private damages regime.

However, private damages actions have taken off in the UK over the past two years, following developments in collective actions. Most notably, the Supreme Court's judgment in Merricks v Mastercard [2020] UKSC 51 (Merricks) lowered the bar for certification of opt-in collective proceedings in the UK.

In contrast, claims for antitrust (competition law) damages have been commonplace in the US for many years, due in part to the possibility of class actions and treble damages awards. Private actions based on developed US federal and state antitrust law (since the adoption of the Sherman Act in 1890) show no signs of abating. 

This Practice Note provides practical guidance on a number of issues likely to arise in UK and US proceedings, such as the choice of forum, handling data, and managing settlements. It compares and contrasts the US and developing UK positions. Many of the considerations for collective action proceedings are similar and can inform strategy and decision-making in either jurisdiction, particularly when parallel claims are brought in both jurisdictions.

Reproduced from Practical Law with the permission of the publishers. For further information visit www.practicallaw.com.

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