Five Antitrust Conversations In-House Lawyers Should Be Having Right Now

 

Global antitrust authorities have grown increasingly concerned about the potential for ephemeral messaging to facilitate secret collusion and cartel behavior. Commonly used in popular applications like Snapchat, WhatsApp, Telegram, and Signal, ephemeral messaging is a form of digital communication where messages automatically disappear after receipt, or shortly after, and is frequently used to conduct business. Antitrust authorities in the United States have recently issued policy statements explicitly addressing ephemeral messaging, and instructing firms to maintain records of digital communications on third-party platforms. Europe is some way behind in terms of issuing specific guidance. However, last year the European Commission (“Commission”) imposed a €15.9 million fine on a company when a senior leader deleted relevant WhatsApp messages during a dawn raid. In the United Kingdom, the new Digital Markets, Competition and Consumers Act (“DMCCA”) has given the Competition and Markets Authority (“CMA”) powers to target ephemeral messaging during its investigations and places more extensive onerous obligations on businesses to preserve evidence, including ephemeral messages. It will be interesting to see if formal guidance follows in Europe, potentially taking inspiration from the US position. In the meantime, in-house counsel must ensure document retention policies are up to date, and employees must understand that messages on their personal devices might be required by enforcers.¹

 

Notwithstanding the growing importance of digitalization and artificial intelligence, human intelligence and knowledgeable staff members remain key for successful businesses. Antitrust authorities around the world are increasingly active in taking steps to safeguard competitive labor markets. In 2024, over the dissents of now-Chairman Ferguson and Commissioner Holyoak, the Federal Trade Commission (“FTC”) adopted a rule that imposed a blanket prohibition on employment non-competes and made them per se illegal. Although the rule was enjoined in court almost immediately and finds no support among the current Commissioners, Chairman Ferguson stated that he is committed to investigating anticompetitive labor practices on a case-by-case basis. More recently, Chairman Ferguson announced the FTC Labor Task Force and assigned it responsibilities including investigation and prosecution of deceptive, unfair, or anticompetitive labor market conduct, including no poach, non-solicitation, no-hire, wage-fixing, and noncompete agreements.

 

In Europe, labor markets have typically been left to Member States to handle given their inherently national nature, reflecting local cultures and employment environments. However, over the past few months, the European Commission has stepped up its enforcement against anti-competitive conduct in labor markets focusing on no-poach agreements and wage fixing.² Indeed, in late 2023, dawn raids in the online ordering and food-delivery sector focused on suspected no-poach agreements.³ Furthermore, the EU regulator has made clear that restrictive agreements in this area are likely to be considered as restrictions of competition “by object”, such that their anti-competitive harm is presumed, with no analysis of their effects being required. It has also made clear that going forward, it might exercise regulatory scrutiny of so called “acqui-hires” on the basis of its merger rules where the staff acquisitions may lead to a change in market conditions.

 

Most recently in the United Kingdom, the CMA imposed a fine on five sports broadcast and production companies after they found that the companies had colluded on rates of pay for freelancers.⁴ This decision came with a clear warning to employers in general to ensure they do not breach competition law, and has promised to issue further guidance in this space soon. Evidently, labor markets are high on the watchlist for enforcers around the world, and businesses should consider training up HR personnel on antitrust compliance, not just front-line leaders and legal staff.

Notwithstanding several comments from enforcers appearing to accept that market players exchanging information can be pro-competitive, in practice, this remains a risky area. For over 30 years, companies in the United States relied on the Department of Justice (“DOJ”) guidance outlining permissible forms of information exchange. These “safety zones” or “safe harbors” allowed firms to share information without drawing DOJ antitrust scrutiny under specified conditions. An information exchange was considered presumptively valid under the guidelines if:

1. the exchange was conducted through a third party;
2. the information was at least three months old; and
3. at least five other companies participated in the exchange.

The guidance was originally issued in connection with healthcare antitrust litigation, but it has been regularly applied to protect firms sharing information in many other industries. However, US firms can no longer rely on this long-standing guidance to exchange information without risking DOJ action, as in 2023, the DOJ withdrew the three policy statements establishing the “safety zone” and “safe harbor” protections. The Department reasoned that “the statements [were] overly permissive on certain subjects, such as information sharing” because “the healthcare landscape has changed significantly” over the last three decades. Further, the Department argued that the withdrawal would promote “transparency” and promised enforcement actions on a “case-by-case” basis.

Since the guidelines were withdrawn, the DOJ has pursued multiple antitrust litigations involving information exchanges. There is, however, ongoing uncertainty as to what forms of information exchange are currently permissible, as the DOJ has yet to replace the withdrawn guidelines and has not committed to when we can expect such a development.

In Europe, there has been a similar tightening of the rules: following a revision of the Commission’s Horizontal Guidelines in 2023, when an undertaking receives information, it is now presumed to have taken that information into account and to have adapted its market conduct accordingly. To avoid liability and hefty fines, companies must take proactive steps, such as clearly distancing themselves from the exchange or reporting the conduct to the relevant authorities. In-house counsel should also be aware of the risks of collusive outcome at the EU level when asked to submit data to a benchmarking exercise, even if carried out by a third party, especially since the revised Guidelines suggest that an exchange of individualized data for the purpose of benchmarking would generally not be considered indispensable.  

More generally in Europe, while information exchange has long been a priority in competition enforcement, recent developments suggest a renewed focus on how market players communicate commercially sensitive information and in particular in digital environments. Although Europe currently lacks the kind of algorithmic collusion cases which we are seeing in the United States, recent activity by the competition authorities shows a particular emphasis on digital exchanges and technological tools, with the Court of Justice confirming that the use of digital platforms can lead to illegal coordination of prices. In addition, over the past few months, the Commission has become increasingly attentive to the ways in which apparently harmless disclosures and, in particular, how public disclosures may lead to aligned behavior between competitors in certain market conditions. Against this backdrop, in-house counsel should be aware that the boundary between legitimate disclosure and unlawful price signaling appears increasingly blurry, especially in markets where pricing intentions can quickly influence the conduct of competitors.

The legal framework around these technologies is constantly evolving, suggesting that vigilance around digital pricing strategies and internal system design is key for in-house counsel who assist companies who use these technologies, or who may be a victim of unlawful activity in this ever-growing area.

 

5. Collective Actions

In the United States, antitrust, unfair competition, and consumer protection claims (as well as follow-on actions like securities law claims against publicly traded companies) remain a common target for plaintiffs’ class action lawyers. The availability of attorneys’ fees awards and treble damages in antitrust cases make them lucrative options for the plaintiffs’ bar, and the permissive standard for initial pleadings and broad scope of discovery in federal litigation mean that antitrust cases can create outsized litigation cost and substantial pressure for in terrorem settlement values. Companies engaging in mergers and acquisitions, operating in industries subject to heavy regulatory scrutiny (such as technology or healthcare), or responding to other kinds of government investigations or studies often find that private class actions follow in the wake of government action, even where the transaction does not ultimately close, or when the investigation is completed with no enforcement action taken.

Companies seeking to mitigate the risk of potentially costly antitrust class action litigation are well served by instituting robust compliance and employee training programs and periodically refreshing those programs to ensure that employees are aware of and appropriately trained in best practices relating to common areas of antitrust risk, such as competitor communications, pricing, marketing, and distribution processes, and other commercial and strategic functions. Likewise, the engagement of skilled antitrust counsel early in the lifecycle of a transaction and integrating antitrust counsel into strategic planning for substantial business decisions can help ensure that best practices are followed early on and can help mitigate the potential for class actions becoming an expensive and time-consuming distraction from the company’s everyday operations.

In-house counsel for US-headquartered international businesses must also be aware of the increasing prevalence of antitrust class actions being brought against such companies in both the United Kingdom and the European Union, including those where they have settled antitrust class actions in the United States relating to the same products and markets. This has been driven in large part by: (i) rapid developments of the European class action litigation regimes; (ii) an active claimant bar with participants including US claimant law firms opening transatlantic practices; and (iii) a significant increase in the availability of litigation funding. The UK regime in particular has experienced rapid growth since a key Supreme Court decision unlocked the regime in 2020, growing from a standing start to more than 50 cases in 2025, which collectively allege damages in excess of £160 billion. The EU regimes have seen similar growth, and the Representative Actions Directive requires each Member State to implement at least an opt-in class-actions regime in its domestic law, with many such as Portugal and the Netherlands already having well-established and active class-actions regimes.

US companies that may not previously have considered antitrust class actions in the United Kingdom or European Union should take steps to consider their exposure in those jurisdictions. This will include reviewing past and current business practices, agreements, and communications that may involve the United Kingdom or EU Member States. Where these nexuses are identified, companies will benefit from early engagement with antitrust counsel to assess the likelihood of class action claims being brought against them and how to best mitigate that risk, including using the strategies outlined above in relation to the United States. Given the rapid pace of change in the European regimes, companies should also monitor legislative changes and key case law developments both in the United Kingdom and European Union, reviewing and updating antitrust compliance policies and litigation strategy to ensure they reflect the latest developments.

Closing

Notwithstanding promises of “pro-business, pro-growth” approaches to competition enforcers, it is clear that businesses continue to face risks of unprecedented levels of intervention by antitrust authorities and/or by private claimants. Although the stakes are high—with ever increasing penalties and/or fines, and a greater likelihood of personal liability being attributed to senior leaders when things go wrong—having key conversations ahead of time and establishing strategies to handle these risks allows businesses to turn these difficult conversations into opportunities for their businesses to thrive.

Because of these developments, it is more important than ever to seek legal guidance if your company has questions regarding dawn raids, ephemeral messages, labor markets, information exchanges, or collective actions. Mayer Brown is prepared to advise and counsel companies on the implications of these developments in their current and future business activities. Please do not hesitate to reach out to any of the authors for further information about this topic and additional developments.

 

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¹ See our Legal Update, “The Vanishing Point: Antitrust Risks Raised by Ephemeral Messages.”

² Aresu, Alessio, and Brigitta Renner-Loquenz. Antitrust in Labour Markets | Competition Policy Brief No 2/2024. European Commission, May 2024.

³ “Antitrust: Commission Carries out Unannounced Inspections in the Online Food Delivery Sector.” European Commission - European Commission, Nov. 2023.

⁴ “Sports Broadcast and Production Companies Fined £4 Million in Freelancer Pay Investigation.” GOV.UK, Mar. 2025.