Antitrust litigation

Our experience includes:

• Successfully defending ABB in the ground-breaking cartel follow-on damages action brought by BritNed (a National Grid and TenneT joint venture) concerning the power cables cartel. The case was the first follow-on cartel damages claim to go to full trial and final judgment, with the claimant recovering less than a 10th of the damages it sought and bearing all of its costs for having effectively lost the case. The judgment is now the leading authority on cartel damages follow-on litigation and is currently before the UK Court of Appeal.

• Defending Mastercard in the first major opt-out collective (class) action under the regime introduced by the UK’s Consumer Rights Act 2015 before the UK Competition Appeal Tribunal. It has also reached the Court of Appeal and Supreme Court on appeal on points of law in respect of the collective action certification procedure. The action is brought on behalf of a class of around 46m UK consumers for a total of £14bn in damages, reportedly the largest civil damages claim ever brought in the UK courts.

• Defending London and South Eastern Railway in the ‘rail tickets’ collective action before the UK Competition Appeal Tribunal. This is the first collective proceeding in the UK in which an abuse of a dominant position has been alleged, and also the first claim in that regime to be pleaded on a ‘standalone’ basis, without the benefit of a regulatory infringement finding.

Our experience includes:

• Co-ordinating Volvo/Renault Trucks’ multijurisdictional defence of litigation arising from its participation in the trucks cartel - the most extensive and largest-scale competition damages litigation ever seen in Europe, with thousands of claims being pursued across a wide number of European jurisdictions. 
• Securing a landmark EU General Court win in 2020 overturning the European Commission’s prohibition of CK Hutchison’s acquisition of O2 UK back in 2016.  The ruling is an important precedent that will require the European Commission to reconsider its approach to challenging mergers in concentrated markets, with the Court having now set tight boundaries to the Commission's margin of discretion. This is only the second time in the last 18 years that an EU merger prohibition has been overturned - Freshfields also represented UPS in its successful headline annulment action in 2019 against the European Commission’s prohibition of its acquisition of TNT.
• Defending Holcim in a claim brought against it by Cartel Damage Claims before Dusseldorf’s Higher Regional Court in relation to Germany's cement investigation, the first German class action-type damages claim.
• Acting for ABB in relation to litigation arising out of cartels concerning gas insulated switchgear, power transformers and power cables in numerous jurisdictions, including Germany, Ireland, The Netherlands and Israel.
• Advising thyssenkrupp on the co-ordination of multiple proceedings across jurisdictions including Austria, Belgium, Germany and The Netherlands in the elevators cartel case. This involved novel indirect purchaser claims and admissibility of umbrella claims (including a reference to the Court of Justice of the European Union on these issues), limitation periods, jurisdiction over foreign parties, joint and several liability, and disclosure of documents on the European Commission's file.

Our experience includes:

• Defending Evonik’s acquisition of its competitor, PeroxyChem, against the FTC - a rare loss for the FTC (the first since 2015 and only the second since 2011) and breaking the agency’s seven-case winning streak in litigated merger challenges.
• Defending Hachette Book Group, a leading global publisher, in class action litigation and related proceedings surrounding the DoJ’s investigation of eBooks pricing.         
• Defending Pepsico in the US and securing dismissal of price fixing, predatory pricing, attempt to monopolise and price-discrimination claims.