Antitrust Damages Recovery

Who are our clients?

We usually act for specific clients – sometimes alone, sometimes as part of a small claimant group – on the basis of their direct instructions. Indeed, our recovery practice has grown out of our representation of individual major corporations, and we believe that we can best serve our clients by acting for them individually, rather than by bringing a class action.

What do we offer to our clients?

Client service is central to our approach. We work with our clients to achieve a solution that maximizes their recovery. That does not simply mean maximizing the financial return, it means helping preserve our clients’ relationships with their defendants, who are frequently important suppliers. It also means ensuring that the burden on our clients in terms of real but hidden costs (e.g., management and staff time and resources) is minimized.

We offer our clients damage recovery services as part of a long-term trusted relationship. We offer these services at little or no upfront cost. We will – to the extent that this is possible consider applicable ethical rules – assist with the evidence gathering, preparation of economic analysis and any necessary litigation at our own cost and risk, and we will look to our clients for payment only when and if we have achieved a result. We work with third-party funders to help cover litigation costs where this is appropriate.

Preparing a damages recovery case

In antitrust recovery cases, as in other areas, it is generally best to resolve the dispute by a negotiated solution and settlement. Sadly, however, this is not always possible, and, in any event, we obtain our best results by always being prepared to litigate if necessary. In the words of Theodore Roosevelt: “speak softly and carry a big stick.”

In our experience, this means meticulous practical preparation and careful strategic planning:

Practical Preparation

We help our clients to gather, analyze and preserve data, documents and witness testimony as early and as extensively as is practically possible. We understand that this can put a significant burden on our clients and we offer manpower and resources to minimize that burden. Ultimately, our clients set the agenda, and the needs of their ongoing business come first. We work with the information that our clients are able to provide within these constraints. However, typically, the more information we get, the more we achieve.

Economic analysis is often crucial in establishing the extent of the loss and proving the case. Whether the case settles early or goes to court, involving economists early and in the right way can make all the difference. We work closely with a number of leading economic consultancies and consider our relationship with them to be a major strength.

Strategic Analysis

Strategic analysis involves deciding if, when, where and how to initiate litigation. The factors to consider are diverse and the right answer will vary from case to case. Key issues to consider include:

• Finding allies: sometimes it helps to look for allies and bring a claim as part of a group. Establishing a well-structured group of plaintiffs that preserves the ability of each member to make individual strategic decisions can create greater pressure on defendants, help in cost sharing, give access to more data and hence better analysis, and reduce the risk of commercial retaliation.
• Jurisdiction: claims are ultimately brought in national courts, and not every jurisdiction will be available in every case. Sometimes litigation in the U.S. can open up a powerful second front. Identifying the available options and their pros and cons is crucial.
• Access to evidence: courts in the U.K. and the U.S. give extensive access to documents and information held by defendants. In cartel cases, where the defendants may have gone to great lengths to conceal their activities, this can be a huge advantage. But it will not always be necessary. Cases can be pursued in other ways and other jurisdictions have other advantages.
• Interest: courts in European jurisdictions will typically award interest on damages claims. But the rates, the dates from which interest is available and the way that interest is calculated vary. In long lasting cartels, it is not infrequent for interest to increase the value of a claim by a factor of two or more.
• Costs: the cost of litigation varies widely between jurisdictions, with the U.K. being particularly expensive. But the ability to recover costs also varies significantly and in the U.K. a successful litigant will typically recover around two thirds of its actual costs from the losing side, while in many other jurisdictions cost awards are severely limited in practice.
• Alternatives: sometimes mediation and/or arbitration can provide a useful alternative to traditional litigation.

Global Collaboration

We work together closely with our experienced U.S and U.K Crowell & Moring colleagues, setting up case teams in which both European and U.S. lawyers work together to obtain the best results. Our multi-jurisdictional capabilities give us a big advantage when it comes to helping our clients to make the right strategic decisions.