United States: Competition Litigation Comparative Guide

1 Legal framework

1.1 Which laws regulate competition in your jurisdiction?

US antitrust law is derived primarily from the Sherman Act and the Clayton Act. In particular:

• Section 1 of the Sherman Act (15 USC § 1) prohibits agreements that unreasonably restrain trade;
• Section 2 of the Sherman Act (15 USC § 2) prohibits anti-competitive monopolisation; and
• Section 7 of the Clayton Act (15 USC § 18) restricts anti-competitive mergers and acquisitions.

The Hart-Scott-Rodino Act (15 USC § 18a) requires that:

• mergers and acquisitions of a certain size be notified to the federal government; and
• the parties comply with a waiting period prior to consummation, to allow for a review by federal authorities.

Other statutes include:

• the Federal Trade Commission Act ('FTC Act'), which prohibits "unfair methods of competition" (15 USC § 45); and
• Section 8 of the Clayton Act (15 USC § 19), which prohibits competing companies from sharing directors under certain circumstances (so-called 'interlocking directorates').

The Robinson-Patman Act (15 USC § 13) prohibits certain forms of price discrimination. While the Robinson-Patman Act has not been the subject of enforcement by federal regulators in recent years, federal enforcers have indicated a renewed focus on the act, and it has remained the subject of private litigation.

In addition, most US states have their own antitrust and/or unfair competition statutes that may vary from federal standards. Many state statutes are modelled after, and interpreted consistently with, their federal counterparts and federal precedent.

1.2 Which authorities are responsible for enforcing the competition legislation? What is their general approach to enforcement?

At the federal level, the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) share responsibility for enforcing competition policy. Only the DOJ has authority to prosecute criminal violations of the antitrust laws. Both the FTC and the DOJ have authority to pursue civil non-merger enforcement actions and have responsibility for merger enforcement. Where both agencies share jurisdiction, there is a clearance process to determine which agency will pursue a given investigation. The federal agencies generally share a similar approach to enforcement. The DOJ and FTC have published joint guidelines regarding a variety of enforcement topics, which often inform but do not bind judicial analysis of antitrust cases. The agencies approach enforcement:

• by pursuing investigations relating to specific parties and conduct; and
• through advocacy and policy outreach.

The DOJ Antitrust Division is part of a centralised Executive Branch agency, the Department of Justice. The Antitrust Division is led by an Assistant Attorney General who operates under the supervision of the head of the Department of Justice, the Attorney General, and of the Associate Attorney General. Both are appointed by the President and confirmed by the US Senate. In contrast, the FTC is an independent commission led by a bipartisan group of five Commissioners who are appointed by the President and confirmed by the Senate for staggered terms.

The DOJ Antitrust Division is currently led by Assistant Attorney General Jonathan Kanter. Kanter has emphasised the need to thoroughly litigate perceived antitrust violations and "not settle, unless a remedy fully prevents or restrains the violation", while questioning some substantive bedrocks of modern US jurisprudence such as the consumer welfare standard. Under his leadership, the DOJ has been aggressive in litigation and has re-emphasised lesser-utilised statutes such as Section 8 of the Clayton Act.

The current Chair of the FTC is Lina Khan. Under Khan, the FTC has been aggressive in litigation, especially in the technology sector. Khan has joined Kanter in voicing scepticism of antitrust enforcement focused exclusively on the consumer welfare standard. In 2022, the FTC announced an expanded approach to enforcement of Section 5 of the FTC Act outside of traditional antitrust jurisprudence, to scrutinise conduct that "goes beyond competition on the merits" insofar as it is "facially unfair" and "negatively affects competitive conditions". The FTC has also foreshadowed renewed federal enforcement of the Robinson-Patman Act.

State antitrust laws are enforced by each state's attorney general, who for some states is a directly elected official. State attorneys general may:

• bring enforcement actions on behalf of the state for violations of state competition laws; and
• bring damages claims for violations as parens patriae on behalf of injured persons within their geographic boundaries (15 USC § 15c).

State attorneys general may launch investigations and bring enforcement actions independently or in coalitions with other states. States also frequently work jointly with the federal agencies on investigations and enforcement actions.

2 Private claims

2.1 What types of private claim may be brought for breach of competition law in your jurisdiction?

The Sherman Act, the Clayton Act and the Robinson-Patman Act may be the subject of private litigation; whereas the Hart-Scott-Rodino Act and the Federal Trade Commission Act may not. Qualifying parties may bring many of the same civil actions as government enforcers (eg, cartelisation, monopolisation, merger challenges). Private parties can sue to recover treble damages as well as injunctive relief under Sections 4 and 16 of the Clayton Act (15 USC §§ 15, 26). State statutes vary widely on this issue, but at least some provide for a private right of action and many of those also allow for recovery of multiple damages.

2.2 What is the legal basis for bringing a claim for breach of competition law?

Section 1 of the Sherman Act (15 USC § 1) prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations". Longstanding jurisprudence interprets 'in restraint of trade' as requiring an "unreasonable restraint of trade".

Section 2 of the Sherman Act (15 USC § 2) declares:

Section 7 of the Clayton Act (15 USC § 18) prohibits:

The Robinson Patman Act deems it illegal to:

• "discriminate ... against competitors of the purchaser, in that, any discount, rebate, allowance, or advertising service charge is granted to the purchaser over and above any discount, rebate, allowance, or advertising service charge available at the time of such transaction to said competitors in respect of a sale of goods of like grade, quality, and quantity;"
• "sell, or contract to sell, goods in any part of the United States at prices lower than those exacted by said person elsewhere in the United States for the purpose of destroying competition, or eliminating a competitor in such part of the United States;" and
• "sell, or contract to sell, goods at unreasonably low prices for the purpose of destroying competition or eliminating a competitor."

Please see question 6.3 for more detail on the elements of claims brought pursuant to these statutes.

3 Parties

3.1 Who has standing to bring a claim for breach of competition law?

Federal antitrust enforcers – the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) – can bring challenges to enjoin violations of the Sherman Act, the Clayton Act and the Robinson Patman Act. The DOJ can also bring challenges for statutory penalties under the Hart-Scott-Rodino Act. The DOJ can also bring damages actions under Section 4a of the Clayton Act. The FTC has exclusive jurisdiction to enforce the FTC Act.

As discussed in question 2.1, private plaintiffs may bring claims under a more limited set of statutes. Even with a private right of action, all private plaintiffs must have constitutional standing to sue (eg, see Lujan v Defenders of Wildlife, 504 US 555 (1992)). In addition, federal antitrust claimants must be able to demonstrate an 'antitrust injury', which broadly requires that their alleged injury be caused by the antitrust violation itself and reflect the anticompetitive effect of the violation (eg, see Brunswick Corp v Pueblo Bowl-O-Mat, Inc, 429 US 477 (1977)). Further, the Supreme Court has drawn a 'bright line' between:

• direct purchasers (ie, those that paid for a product or service which was subject to the violation); and
• indirect purchasers (ie, purchasers further downstream).

Federal claimants must be direct purchasers under Illinois Brick Co v Illinois, 431 US 720 (1977) to recover damages for violations of federal antitrust law. Many states, however, have 'repealed' Illinois Brick to enable indirect purchasers to pursue damages claims under state antitrust statutes.

3.2 Can a claim for breach of competition law be brought against parties outside the jurisdiction?

Yes. Sections 1 and 2 of the Sherman Act apply to all "persons" affecting any part of "trade or commerce among the several states or with foreign nations" (15 USC §§ 1, 2). Similarly, Section 7 of the Clayton Act applies to any "person engaged in commerce or in any activity affecting commerce" (15 USC § 18). In both cases, the term 'person' is defined to include "corporations and associations existing under or authorized by ... the laws of any foreign country" (15 USC §§ 7, 12).

Federal antitrust laws apply to foreign conduct that has a substantial and intended effect in the United States. Under the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), Sections 1 and 2 of the Sherman Act and the FTC Act apply to import commerce. Non-import foreign commerce, however, is not covered by the Sherman Act or the FTC Act, unless the "conduct has a direct, substantial, and reasonably foreseeable effect on commerce within the United States, US import commerce, or the export commerce of a US exporter, and that effect gives rise to a claim". The FTAIA does not restrict the Clayton Act, but federal enforcers have stated that they will apply these same principles when analysing mergers and acquisitions.

3.3 Can a claim for breach of competition law be brought against individuals, or only companies?

Yes. Both individuals and companies may be held liable for criminal and civil violations.

4 Collective actions

4.1 Is it possible to bring a collective action for breach of competition law in your jurisdiction? If so, what is the applicable regime?

Yes. Rule 23 of the Federal Rules of Civil Procedure provides for class action lawsuits in federal court (some states also permit collective actions). Class actions allow representative plaintiffs to sue on behalf of similarly situated persons, and the decision in such a litigation is binding on all class members that do not 'opt out' in a timely manner in cases where it is permissible to opt out. Antitrust lawsuits are amenable for class actions on the same terms as other cases. Importantly, class action settlements must be approved by a court.

4.2 Do collective actions proceed on an 'opt-in' or an 'opt-out' basis?

Rule 23 provides for three broad types of class actions:

• limited fund actions;
• injunctive or declaratory relief actions; and
• damages actions.

Limited funds and injunctive or declaratory relief actions are mandatory – if certified, all covered persons are in the class and will be bound by the decision. Classes seeking damages, however, proceed on an opt-out basis. Potential class members have the right to reasonable notification and the opportunity to opt out, at which point they may pursue their own independent action. If potential class members do not opt out in a timely manner, they will be considered part of the class and will be bound to the outcome of the case under most circumstances.

In the case of a class settlement for damages, class members that did not opt out may still challenge the terms of the settlement in certain circumstances. Class members may challenge the settlement on the grounds that their due process rights were insufficiently protected by the structure of the class, the representative plaintiffs, and/or class counsel. Federal class actions do not proceed on an 'opt-in' basis.

4.3 Do collective actions require certification? If so, what requirements must be met to obtain certification?

Yes. Classes must be certified by the court, including classes established exclusively for the purposes of settlement. The burden is on the party seeking to certify the class to satisfy the requirements of Rule 23.

Substantively, Rule 23 has four 'prerequisite' requirements:

• Numerosity: "the class is so numerous that joinder of all members is impracticable";
• Commonality: "there are questions of law or fact common to the class";
• Typicality: "the claims or defenses of the representative parties are typical of the claims or defenses of the class"; and
• Adequacy: "the representative parties will fairly and adequately protect the interests of the class" (Rule 23(a)).

Some federal courts also recognise an implied requirement that the class be ascertainable or 'administratively feasible'; but other courts have rejected that requirement.

In addition, classes must satisfy the conditions for one of four recognised types of classes:

• where either:
• • prosecuting individual actions would create a risk of incompatible decisions; or
  • adjudications on behalf of one individual might practically impair the rights of another individual (ie, common fund cases);
• where injunctive relief is sought and would be appropriate; or
• where common legal and factual questions predominate over individual ones such that a collective action is superior to individual actions.

Suits for damages usually fall in the last category.

5 Forum

5.1 In what forum(s) are claims for breach of competition law heard in your jurisdiction?

Both federal courts and state courts of general jurisdiction hear competition law claims. The private right of action to enforce the federal antitrust law, however, limits jurisdiction for such claims to federal court (15 USC, § 15).

When the Federal Trade Commission (FTC) brings an enforcement action, it has the exclusive opportunity to bring the case in an FTC administrative proceeding. This administrative forum applies the same substantive antitrust principles as a federal court; procedural rules vary. Most importantly, there is no jury in the administrative forum.

6 Bringing a claim

6.1 What is the limitation period for claims for breach of competition law in your jurisdiction?

Generally, federal civil antitrust claims for damages must be brought within four years (15 USC § 15b; Clayton Act § 4B). This limitation, however, begins to run when the cause of action accrues. This is normally triggered when the plaintiff suffers injury, rather than when the violation itself occurs. The time period may be extended if new injuries are sustained or if new overt acts in furtherance of the violation occur (eg, see Zenith Radio Corp v. Hazeltine Research, 401 US 321 (1971)). The time period can also be extended based on a finding of fraudulent concealment of the cause of action.

Separately, federal criminal antitrust cases must be brought within five years.

6.2 What are the formal requirements for bringing a claim for breach of competition law?

A complaint must be filed with the court and served on the defendant.

6.3 What are the procedural and substantive requirements for bringing a claim for breach of competition law?

To bring a complaint in federal court, the plaintiff must allege sufficient facts that, if viewed in the light most favourable to the plaintiff, would state a claim for antitrust liability (eg, see Bell Atlantic Corp v Twombly, 550 US 544 (2007)).

At a high level, to substantively prove a violation of Section 1 of the Sherman Act (conspiracy to restrain trade), a party must prove the following:

• An agreement exists;
• The agreement restrains interstate or international commerce; and
• The restraint of trade is unreasonable.

Agreements can be proven by either direct or circumstantial evidence. However, mere parallel behaviour is not enough to prove an agreement unless it is coupled with additional 'plus factors' – for example, evidence that the behaviour would be irrational in the absence of an anti-competitive agreement.

For a claim under Section 2 of the Sherman Act (monopolisation), the plaintiff must prove the following:

• The defendant has monopoly power in the relevant market; and
• This power was acquired, enhanced or maintained by exclusionary conduct.

Monopoly power can be proven by either direct or indirect evidence. Conduct that may be deemed 'exclusionary' for the purposes of Section 2, includes, but is not limited to:

• exclusive dealing;
• tying;
• bundling;
• discounting;
• predatory pricing;
• refusals to deal;
• refusals to license;
• product design;
• product hopping;
• manipulation of standards-setting organisations; and
• enforcement of a patent obtained by fraud.

There is significant case precedent regarding whether conduct is or is not 'exclusionary'.

Plaintiffs may also allege attempted monopolisation under Section 2 of the Sherman Act, which requires proof of:

• specific intent to monopolise;
• exclusionary or anti-competitive conduct; and
• a dangerous probability of success.

In cases alleging certain conduct – such as price fixing, allocation of customers or territories or bid rigging – unreasonableness is established per se. No in-depth analysis of the economic effects of the conduct is required. However, for conduct that is not considered by the courts to be per se unlawful, the 'rule of reason' applies. It is typically the case that monopolisation claims and claims regarding agreements between non-competitors are analysed under the rule of reason. This requires that the fact finder consider the totality of circumstances and balance the pro-competitive effects against the anti-competitive effects of the challenged restraint to determine whether the conduct is unreasonable (eg, see Chicago Board of Trade v United States, 246 US 231 (1918); Continental TV Inc v GTE Sylvania Inc, 433 US 36 (1977)). As discussed in question 8.3, the courts usually apply a burden-shifting framework to structure this analysis. Rule of reason analysis requires a relevant market definition. Market definition includes:

• product definition (the affected product and all reasonable substitutes); and
• a geographic definition (the reasonable geographic area within which customers will travel to find a substitute).

To challenge a merger or acquisition under Section 7 of the Clayton Act, the plaintiff must prove that the transaction has a substantial likelihood of reducing competition in a relevant market. Merger analysis is similar to rule of reason analysis insofar as it accounts for the totality of the circumstances and rests upon a market definition; but merger analysis requires a reasonable prediction of the future effects of the acquisition. Common theories of merger harm include:

• coordinated effects (ie, fewer competitors increases the likelihood of coordination or outright conspiracy); and
• unilateral effects (ie, more market power for the merged company will allow it to engage in anti-competitive conduct).

Potential new entrants and potential merger-specific efficiencies can mitigate or outweigh any anti-competitive effects of the merger.

A Robinson Patman Act claim for price discrimination under Section 2(a) applies only to the sale of commodities, and not to the purchase of services or leases of products. To prove a violation, plaintiffs must show a difference in price between goods of "like grade and quality" sold by the defendant to two or more competing purchasers. The plaintiff must further prove that the price difference creates a likely injury to competition. A claim under Section 2(d) or 2(e) requires a showing that the defendant did not provide proportionally equal marketing assistance or promotional allowances or services to competing customers. Claims under Section 2(d) and 2(e) are assessed under a per se standard and do not require a demonstration of injury to competition.

6.4 What are the implications if a public enforcement action in relation to the same behaviour is pending? Can a claim still be brought?

Yes. However, the courts may stay a private action in whole or in part while the government action is pending.

6.5 How is jurisdiction over the claim determined?

State courts have general jurisdiction over state law claims. Federal courts have jurisdiction over:

• any federal question (28 USC § 1331);
• any state claim among parties from diverse states where the amount in controversy is higher than $75,000 (28 USC § 1332); and
• state claims brought alongside and sufficiently related to a federal question (12 USC § 1367).

Again, the private right of action to enforce the federal antitrust laws limits jurisdiction to federal courts (15 USC § 15).

Under certain circumstances, a defendant may 'remove' a case filed in state court to federal court. Defendants may remove a case bringing only state law competition claims brought by individuals in state court if:

• the parties are citizens of different states;
• no defendant is a citizen of the state where the action was filed; and
• the "amount in controversy" exceeds $75,000 (28 USC § 1441(b); 28 USC § 1332(a)).

Furthermore, collective actions alleging state law claims in state court can be removed by defendants under the Class Action Fairness Act as long as:

• the amount in controversy exceeds $5 million;
• the class includes at least 100 plaintiffs; and
• at least one class member is a citizen of a state different from any defendant (28 USC § 1441(a); 28 USC § 1332(d); see Dart Cherokee Basin Operating Co, LLC v Owens, 574 US 81, 84–85 (2014)).

6.6 How is the applicable law determined?

Federal precedent governs federal antitrust decisions. All federal courts are bound by Supreme Court precedent. The US court system is divided into appellate 'circuits'. Federal trial courts are bound by the appellate precedent in their circuit and by Supreme Court decisions; but other federal cases are frequently cited for their persuasive value. Legal and economic academic writings (eg, treatises and articles) are also routinely cited. When a federal court hears state law claims, it will apply the appropriate state law. State courts will apply the state's laws.

6.7 Under what circumstances must security for costs be provided?

Security is not generally required in US litigation. In the antitrust context, the most common situation where security is required is a preliminary injunction (PI) or temporary restraining order (TRO), as discussed in question 6.8.

6.8 Are interim remedies available in competition litigation? If so, how are they obtained?

In both public enforcement and private litigation, parties may seek a TRO and/or a PI to maintain the status quo while issues are litigated. A federal TRO will enjoin the alleged violation for no more than 14 days (unless extended by the court); whereas a PI will remain in place until the litigation is resolved. Unlike a PI, the court may issue a TRO ex parte (without the other party being notified or participating in the hearing). In both cases, the movant must post a bond that secures the enjoined party from costs and damages in the event that the court eventually decides that it was wrongfully restrained (Fed R Civ P 65(c)). The federal government is exempted from the bond requirement (id).

Substantively, the standards for both forms of interim relief are the same:

As preliminary injunctions are considered "extraordinary and drastic remedies", the movant must make a "clear showing" that these factors are satisfied (Mazurek v Armstrong, 520 US 968, 972 (1997)).

State rules are generally similar but may vary in important respects.

7 Disclosure and privilege

7.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply?

Federal Rules of Civil Procedure 26 to 37 regulate disclosures and discovery in federal litigation. States often have similar rules, but these may vary in important ways by state.

Unless the court rules otherwise, all parties must make initial (and ongoing) disclosures that include:

• individuals likely to have discoverable information;
• documents and evidence that the party may use to support its claims or defences;
• computations of damages; and
• applicable litigation insurance policies.

Parties must also disclose the opinions and materials relied upon by any expert that they intend to call to testify. Additionally, parties may request admissions, answers to interrogatories, documents, access to premises and so on from opposing parties.

Discovery generally extends to all non-privileged information relevant to any party's claim or defence and proportional to the needs of the case. Information may be 'discoverable' even if it would not eventually be admissible in court (eg, hearsay and unauthenticated documents). Discovery must be limited if the requests are "unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive" (Rule 26 (b)(2)(C)). Further, parties may seek protective orders – if good cause is shown, the court may "issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense" (Rule 26(c)(1)). These orders may either prevent discovery or require that information be maintained confidentially.

7.2 What rules on third-party disclosure apply in your jurisdiction?

Federal Rule of Civil Procedure 45 regulates federal subpoenas. Subpoenas are court orders served by plaintiffs and defendants upon third parties. The orders may compel a non-party to:

• give deposition testimony;
• appear for trial testimony;
• produce discoverable material; or
• allow a certain premise to be inspected.

Non-parties, however, may generally be compelled to comply only within 100 miles of their residence or place of work (or at the location of the relevant premise). Moreover, the party enforcing the subpoena must take reasonable steps to avoid undue burden or expense on the non-party. Finally, non-parties may move for the issuing court to 'quash' the subpoena on various bases (Fed R Civ P 45).

7.3 What rules on privilege apply in your jurisdiction?

Generally, any communication between attorney and client made for purposes of obtaining legal advice or services is protected by attorney-client privilege. In the United States, this privilege extends to in-house attorneys on both the federal and state level. Federally, communications with accountants and other professionals do not have the same immunity. State rules may vary by profession. Federal courts do, however, recognise a work product immunity doctrine that protects discovery of "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative", which extends beyond the attorney-client privileged to cover attorney work product (Fed R Civ P 26(c)(3)(A)).

8 Evidence

8.1 What types of evidence are permissible in your jurisdiction? Is expert evidence accepted?

Generally speaking, any relevant information may be admissible evidence (Fed R Evid 402). This includes circumstantial evidence and direct evidence. Opinion evidence by a qualified expert is permitted, as long as the court determines that:

• the witness's expertise will be helpful to the trier of fact;
• the opinion is based on sufficient facts;
• the opinion is derived by reliable principles and methods; and
• the expert reliably applies those principles and methods to the facts at hand (Fed R Evid 702; see Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993)).

Evidence will be excluded, however, if its probative value is substantially outweighed by the danger of:

• unfair prejudice;
• confusion;
• misleading the jury;
• undue delay;
• time wasting; or
• unnecessary repetition (Fed R Evid 403).

Further, courts in the United States will not generally admit hearsay as evidence (Fed R Evid 802). Hearsay includes any statement that "the declarant does not make while testifying at the current trial or hearing" and that "a party offers in evidence to prove the truth of the matter asserted in the statement" (Fed R Evid 801(c)). Various exceptions and definition exclusions are provided by the rules (Fed R Evid 801, 803–807). Definitional exclusions include statements by a party opponent and a witness's prior testimony (conditions apply to both exclusions) (Fed R Evid 801(d)).

Beyond hearsay, other evidentiary exceptions include evidence of liability insurance and settlement negotiations, if it is offered to imply guilt (Fed R Evid 408–411). Similarly, the so-called 'subsequent remedial measures' rule excludes from evidence any measures that the defendant took to prevent similar injures or conduct from occurring in the future (except if the evidence is offered to prove the feasibility of preventing the injury) (Fed R Evid 407).

Finally, documents must be authenticated to be presented as evidence (although some documents are considered self-authenticating) (Fed R Evid 901–903).

8.2 What is the applicable standard of proof?

See question 8.3.

8.3 On whom does the burden of proof rest?

The ultimate burden to prove all elements of the claim always rests with the government or the plaintiff, not with the defendant. The defendant has the burden, however, to prove any affirmative defences (see question 8.4).

When assessing anti-competitive effects in a 'rule of reason' case, the courts will employ a three-step burden-shifting approach:

• The plaintiff must show substantial anti-competitive effects – a prima facie case that the alleged conduct violated the law.
• The defendant may demonstrate a legitimate pro-competitive justification for the conduct.
• If the defendant can show a valid rationale, the burden shifts back to the plaintiff to demonstrate that the same objective could be reasonably achieved through less restrictive means (Ohio v Am Express Co, 138 S Ct 2274, 2284 (2018)). Ultimately, the burden remains on the plaintiff to prove that the anti-competitive effects outweighed the pro-competitive effects.

8.4 What defences are typically available in competition litigation?

Defendants commonly argue that:

• the plaintiff has failed to establish the elements of the claim; and
• in a rule of reason case, the overall impact of the alleged conduct was pro-competitive or increased consumer welfare.

Affirmative defences, for which the burden is on the defendant to prove, include that the statute of limitations has run.

Other narrow affirmative defences exist for particular types of claims, including the 'failing firm' defence in merger litigation (ie, that the acquired firm would exit the market 'but for' the transaction and therefore no competition is lost in the transaction). Generally speaking, the US courts will not accept an argument that competition is inappropriate or inefficient in a particular market or industry.

One common defence to a Robinson-Patman Act claim is 'meeting competition'. This defence applies to price differentials if the seller acts "in good faith to meet an equally low price of a competitor" (Standard Oil Co v Fed Trade Comm'n, 340 US 231, 234 (1951)).

9 Settlement

9.1 Can the proceedings be discontinued without a full trial? If so, how; and what are the implications?

Yes. A case may be voluntarily dismissed by the plaintiff before an answer or summary judgment is served (Fed R Civ P 41(a)). If filed before a motion to dismiss or summary judgment, the court will dismiss the case 'without prejudice', allowing the party to re-file (Fed R Civ P 41(a)(1)). Otherwise, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper" (Fed R Civ P 41(a)(2)). A case can also be dismissed by the court sua sponte for lack of subject-matter jurisdiction. This will be a dismissal without prejudice and the case can be brought again in an appropriate forum.

Cases may be dismissed for a defect or insufficiency in the complaint, on a motion to dismiss by the defendant(s) (Fed R Civ P 12(b)). If the issue can be cured and there is no evidence of bad faith, courts will typically provide time to amend the complaint or dismiss without prejudice to allow refiling. If the defect persists or the defect is more fundamental, dismissal may terminate the case. Such a dismissal normally can be appealed once final.

The court also may hear a motion for summary judgment, which allows for the disposition of a litigation when there is no genuine dispute as to material facts and the movant is entitled to judgment as a matter of law (Fed R Civ P 26(a)). Summary judgment is binding on the parties and can be appealed.

Finally, a case can be settled between individual private parties at any time. The parties can stipulate to a dismissal and the settlement agreement will be enforced as a contract between them. Importantly, however, settlements with the Antitrust Division of the Department of Justice must be made public and approved by the court. Settlements with the Federal Trade Commission (FTC) must be published and are subject to public comment, and then must be approved by a majority of FTC Commissioners. Some courts may be taking a more active role in scrutinising such settlements. The settlement procedures of state attorneys general may vary.

9.2 In the case of collective actions, is collective settlement possible? If so, how; and what are the implications?

Yes. As discussed in question 4, classes can be certified for the limited purpose of settlement. In federal litigation, the court must approve any settlement of a class action in order to protect the rights of absent members. Typically, the court will hold a hearing to determine whether the settlement is fair and in the interests of the absent class members. Class settlements are nonetheless sometimes collaterally challenged by absent members which allege that their due process rights were violated due to some flaw in the class certification, structure, representatives or counsel.

10 Court proceedings

10.1 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?

With limited exceptions, court proceedings are public. Typically, a case will have a protective order in place that allows the parties to maintain internal company documents and other sensitive materials as confidential during the course of the litigation. It is possible, with the permission of the court, to file briefs and documents that contain sensitive information 'under seal' so that they are not available to the public. Similarly, if a court proceeding involves very sensitive material, a court may seal the courtroom such that the public is excluded from the proceeding. However, this is the case in a very limited subset of proceedings. Courts have a very strong preference for proceedings to be public and will limit to the greatest extent possible any proceedings under seal.

10.2 How do the court proceedings unfold in your jurisdiction?

This question focuses on federal district court civil litigation, with and without a jury. State civil litigation is often similar, but may vary. Federal Trade Commission administrative procedures are similar to the description of a bench trial below, but may also vary. Criminal procedure differs substantially. The course of any two litigations may differ substantially. This summary provides only common milestones as a trial progresses in US federal civil court.

Filing and early motions practice: In civil proceedings, the plaintiff files a complaint and serves a copy with a summons on the defendant. The defendant may either:

• file an answer responding to the allegations in the complaint; or
• move for dismissal on any number of grounds (some of which are waived if the defendant does not move for dismissal before answering).

The defendant may also seek to change the venue of the litigation to another court by agreement or by court order.

Discovery, class certification, summary judgment: If the complaint is not dismissed, the court will, in consultation with the parties, establish a schedule for the case. The schedule will typically set deadlines for:

• fact discovery;
• expert discovery;
• motions for class certification (in collective actions);
• motions for summary judgment; and
• trial.

The schedule may also lay out rules governing discovery in the case, to the extent that they differ from the default.

The parties will engage in discovery, which can be very complex and time intensive in an antitrust case. The parties manage discovery largely on their own, bringing disputes to the court for resolution; the court is not closely involved in the exchange of documents and information. Often in large and complicated cases, a magistrate judge or a special master may be appointed to handle discovery disputes. In complex cases, discovery may also be broken up into multiple rounds (eg, class certification fact discovery, class certification expert discovery, merits fact discovery, merits expert discovery). If the plaintiffs seek to certify a class, they may move to do so after limited discovery, depending on the court's scheduling order. By the end of discovery, all parties have the option to move for summary judgment, which may dispose of all or part of the litigation.

If multiple actions relating to the same conduct and defendants are filed in the same federal court, they may be consolidated to increase efficiencies. Cases may be consolidated:

• for purposes of discovery;
• for all pre-trial proceedings; or
• for all purposes.

If related actions are filed in multiple federal courts, they may be referred to the Judicial Panel on Multi-District Litigation. This body may consolidate all actions in a single court before a single judge for purposes of:

• pre-trial motions practice;
• discovery;
• class certification; and
• summary judgment.

Although multi-district litigation actions can be settled before this assigned judge, they are sent back to the original courts in which they were filed for trial.

Pre-trial: If not disposed of on summary judgment, the case will proceed to pre-trial. If a jury has been demanded, the trial will begin with voir dire or jury selection. A large panel of potential jurors will be called from the community, and each party and the judge often will have an opportunity to question, approve or challenge their inclusion on the jury until a jury has been selected. The court will hear motions in limine or motions to exclude evidence in order to resolve foreseeable disputes before evidence begins to be presented to the jury. In some instances, the court will delay deciding such a motion until the trial has begun to unfold; but in most cases, the court will decide the motion before the evidence is presented to the jurors.

Trial: Trial begins with the plaintiff's opening statement, followed by the defendant's opening statement. The plaintiff then puts on its case in chief – fact witnesses, documents, and expert witnesses in an order of its choosing. The defendant may, but is not required to, present its own evidence after the plaintiff rests. During each party's presentation of evidence, the other party has the right to object to improper questions or inadmissible evidence. The other party also has the right to cross-examine its opponent's witnesses. The judge may, but is not required to, ask questions as well. Finally, the parties give their closing statements.

A party may move for a judgment as a matter of law after its opponent has finished presenting its evidence – a defendant may move with or without presenting evidence of its own. The court will grant a judgment as a matter of law if it determines, based on the presentation of evidence, that no reasonable jury could decide against the moving party. A judgment as a matter of law will dispose of the case, subject to any appeals.

Assuming that a judgment as a matter of law is not issued, the jury will be instructed on the law by the judge. Judges may also provide instructions at the beginning of trial; and some judges in some cases will even provide written instructions that the jurors can consult as they deliberate. The jury deliberates confidentially for as long as necessary until it reaches a decision. In federal court, its decision must be unanimous, but this rule varies in state courts. The jury then delivers its verdict on liability and damages.

In particularly complex cases, judges may order that trial be bifurcated or trifurcated – splitting up the presentation of evidence by issue (eg, liability and damages, separately). In such a situation, statements and evidence related to the first issue will be presented to the jury and then the jury will decide that issue. If the jury decides against the plaintiff on an essential issue, the trial will end. If the jury decides in favour of the plaintiff, the trial will move on to the next issue.

The parties may waive their right to a jury and proceed with a bench trial, where the judge serves as the sole fact finder. Some parties find this preferable to explaining complex economics to a lay jury. Bench trials proceed in a similar fashion to jury trials, except that the structure may be more relaxed depending on the preferences of the judge. In some cases, evidentiary motions, arguments and presentation of evidence may be less segregated. When issuing a verdict in a bench trial, the court will write an opinion and memorandum explaining its findings of facts and conclusions of law in detail.

Post-trial and appeal: In a jury trial, the judge has the opportunity to adjust the damages award downward if the jury's decision appears to be unreasonable. In both jury and bench trials, parties may move for a new trial, claiming some fundamental defect in the proceedings. Ultimately, the judge will enter a judgment as a final disposition of the case. In most cases, the parties must notice an appeal within 30 days.

10.3 What is the typical timeframe for proceedings?

Civil antitrust litigation can take many years just to proceed to trial. Antitrust trials typically last weeks. Appeals may take another several years.

10.4 What rules apply to the joinder of third parties?

Some third parties are considered required – their absence hinders the ability of the court to accord relief and/or their absence puts them at significant risk of impaired rights. If their addition will not undermine the court's jurisdiction and they receive service, they will be joined by court order (Fed R Civ P 19).

Other parties are permitted to join, but are not required to do so. Generally, a party may join a claim if:

• it asserts a claim or has a claim asserted against it that arises from the same series of events as the existing claims in the case; and
• it shares at least one question of law or fact with the other plaintiffs or defendants (Fed R Civ P 20).

There is a strong preference in federal jurisprudence to resolve all related claims in one proceeding.

10.5 To what extent do the decisions of national or foreign competition authorities influence the court's decision?

Foreign antitrust policy does not generally affect US antitrust jurisprudence. However, US courts will interpret and apply foreign law when it is necessary to resolve a case. Under norms of international comity, federal judges will give weight to a foreign government's interpretation of its own laws, but US courts are not bound by foreign precedent or foreign agency opinion (see Animal Sci Prod, Inc v Hebei Welcome Pharm Co, 585 US ____, 138 S Ct 1865, 1868 (2018)).

11 Remedies

11.1 What remedies are available in competition litigation in your jurisdiction?

Damages are the primary remedy. Permanent injunctions that restrain or reform behaviour are also common. Injunctions can even include unwinding of a consummated merger. Criminal fines and prison sentences are ostensibly available for all violations, but in practice are reserved as a matter of policy for 'hardcore' violations (price fixing and other per se violations, now including 'no poach' agreements). Civil penalties, injunctions and disgorgement may also be sought by federal and some state authorities.

11.2 Are punitive damages awarded in your jurisdiction?

For private plaintiffs, and state attorneys general suing as parens patriae, damages are trebled under federal antitrust law and many state antitrust laws. Similarly, if the United States seeks damages for any damages suffered by the US government, those will also be automatically trebled under Section 4A of the Clayton Act.

11.3 Will the courts consider any fines imposed by the competition authorities in deciding on the quantum of damages? What other factors will it consider in this regard?

There is no offset for fines paid to the government in determining the damages recoverable by a private plaintiff.

12 Appeals

12.1 Can the decision of the court or tribunal be appealed? If so, on what grounds and what is the process?

Yes. Decisions in courts of general jurisdiction can generally be appealed by right. Federal cases can eventually be appealed to the US Supreme Court, which has discretion over taking the case. In Federal Trade Commission administrative proceedings, decisions of the administrative law judge can be appealed to the Commissioners. The Commissioners' decision in turn can be appealed to a circuit court.

Generally, notices of appeals must be filed within 30 days of the entry of a judgment (the Antitrust Division of the Department of Justice has 60 days) (Fed R App P 4). Normally only final dispositive decisions can be appealed. However, Rule 23 allows for interlocutory appeal of the granting or denial of a class action certification; the appellate court has discretion whether to hear the appeal.

13 Costs, fees and funding

13.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?

The costs of litigating antitrust cases can be very high. Multiple experts and intensive documentary discovery are fairly routine.

Under the Clayton Act, a prevailing plaintiff, or state attorney general acting as parens patriae, is entitled to recover its attorneys' fees (15 USC §§ 15(a) 15c(a)). Conversely, if the court determines that a state attorney general acted in bad faith, it may award a victorious defendant reasonable attorneys' fees (15 USC § 15c(d)). In addition, in certain antitrust cases related to joint ventures and standard-setting organisations, the prevailing party may generally be awarded reasonable attorneys' fees (15 USC § 4304). In any class action, the court may authorise a settlement that includes reasonable attorneys' fees and expenses (Fed R Civ P 23(h)).

13.2 Are contingency fees and similar arrangements permitted in your jurisdiction?

Yes. However, professional ethical rules – which vary by state – may limit the fee.

13.3 Is third-party funding permitted in your jurisdiction?

Yes. However, professional ethical rules – which vary by state – may limit these arrangements. Professional ethical rules state that attorneys must always represent the interests of their client, not the funder.

14 Trends and predictions

14.1 How would you describe the current competition litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

Government and private competition litigation is quite active at this time. Federal enforcers have exhibited a more aggressive litigation strategy, which has resulted in some recent notable losses in the federal courts. Legislation to reform antitrust law is routinely proposed and discussed; but proposed legislation that would enact substantial changes to the antitrust laws has failed in recent years, and renewed attempts are likely to face similar challenges. Federal enforcers are working, however, to revise enforcement guidelines related to horizontal mergers, vertical mergers and bank mergers – which may be persuasive to, but are not binding on, US courts.

15 Tips and traps

15.1 What would be your recommendations to parties facing competition litigation in your jurisdiction and what potential pitfalls would you highlight?

Antitrust litigation – brought by both government enforcers and by private plaintiffs – is a real risk in the United States. Even if a company is ultimately held not to be liable, the US litigation process – particularly the discovery process – is lengthy and imposes significant expense and burden on a company. Because injured plaintiffs have the ability to recover treble damages under federal and many state antitrust laws and because antitrust violations can lead to criminal exposure for both companies and individuals in particularly egregious cases, companies must consider seriously the potential ramifications of engaging in business practices that pose antitrust risk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.