Antitrust Litigation 2025

Definitive global law guides offering comparative analysis from top-ranked lawyers

CHAMBERS GLOBAL PRACTICE GUIDES

Definitive global law guides offering comparative analysis from top-ranked lawyers

Contributing Editor Franz Hoffet Homburger

Global Practice Guides

Antitrust Litigation Contributing Editor

Franz Hoffet Homburger

2025

Chambers Global Practice Guides For more than 20 years, Chambers Global Guides have ranked lawyers and law firms across the world. Chambers now offer clients a new series of Global Practice Guides, which contain practical guidance on doing legal business in key jurisdictions. We use our knowledge of the world’s best lawyers to select leading law firms in each jurisdiction to write the ‘Law & Practice’ sections. In addition, the ‘Trends & Developments’ sections analyse trends and developments in local legal markets. Disclaimer: The information in this guide is provided for general reference only, not as specific legal advice. Views expressed by the authors are not necessarily the views of the law firms in which they practise. For specific legal advice, a lawyer should be consulted. Content Management Director Claire Oxborrow Content Manager Jonathan Mendelowitz Senior Content Reviewers Sally McGonigal, Ethne Withers, Deborah Sinclair and Stephen Dinkeldein Content Reviewers Vivienne Button, Lawrence Garrett, Sean Marshall, Marianne Page, Heather Palomino and Adrian Ciechacki Content Coordination Manager Nancy Laidler Senior Content Coordinators Carla Cagnina and Delicia Tasinda Content Coordinator Hannah Leinmüller Head of Production Jasper John Production Coordinator Genevieve Sibayan

Published by Chambers and Partners 165 Fleet Street London EC4A 2AE Tel +44 20 7606 8844 Fax +44 20 7831 5662 Web www.chambers.com

Contents

INTRODUCTION Contributed by Franz Hoffet, Homburger p.5

PORTUGAL Law and Practice p.157

Contributed by Antas da Cunha Ecija Trends and Developments p.169 Contributed by Antas da Cunha Ecija

AUSTRALIA Law and Practice p.9 Contributed by Gilbert + Tobin Trends and Developments p.23 Contributed by Gilbert + Tobin CHILE Law and Practice p.28 Contributed by Estudio Lizana Trends and Developments p.45 Contributed by Estudio Lizana CHINA Law and Practice p.52 Contributed by Zhong Lun Trends and Developments p.65 Contributed by Zhong Lun DENMARK Law and Practice p.70 Contributed by Gorrissen Federspiel FRANCE Law and Practice p.81 Contributed by Gide Loyrette Nouel

SOUTH KOREA Law and Practice p.174 Contributed by Shin & Kim

Trends and Developments p.190 Contributed by Yoon & Yang LLC

SPAIN Law and Practice p.197 Contributed by Gómez-Acebo & Pombo SWITZERLAND Law and Practice p.214 Contributed by Wenger Plattner Trends and Developments p.226 Contributed by Wenger Plattner

TAIWAN Law and Practice p.230 Contributed by Formosa Transnational Attorneys At Law

UK Law and Practice p.240

Contributed by Clifford Chance LLP Trends and Developments p.262 Contributed by Clifford Chance LLP

JAPAN Law and Practice p.97 Contributed by Nagashima Ohno & Tsunematsu MEXICO Law and Practice p.110 Contributed by Aziz & Kaye Business Law Trends and Developments p.120 Contributed by Malpica, Iturbe, Buj & Paredes

USA Law and Practice p.269

Contributed by Clifford Chance US Trends and Developments p.283 Contributed by Clifford Chance US USA – ARIZONA Trends and Developments p.291 Contributed by Dickinson Wright PLLC USA – CALIFORNIA Trends and Developments p.297 Contributed by Shook, Hardy & Bacon LLP USA – FLORIDA Trends and Developments p.301 Contributed by Boies Schiller Flexner

NEW ZEALAND Law and Practice p.127 Contributed by Wynn Williams Lawyers

POLAND Law and Practice p.139

Contributed by Hansberry Tomkiel Trends and Developments p.151 Contributed by Hansberry Tomkiel

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Contents

USA – GEORGIA Trends and Developments p.308 Contributed by King & Spalding LLP USA – ILLINOIS Trends and Developments p.313 Contributed by Willkie Farr & Gallagher LLP

USA – NEW YORK Trends and Developments p.320 Contributed by Cadwalader, Wickersham & Taft LLP

USA – TEXAS Trends and Developments p.326 Contributed by Norton Rose Fulbright USA – WASHINGTON, DC Trends and Developments p.331 Contributed by Baker McKenzie

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INTRODUCTION

Contributed by: Franz Hoffet, Homburger

Homburger advises and represents clients in Swit - zerland and abroad on all aspects of Swiss and EU competition law, developing solution-oriented legal arguments, and representing and asserting these be - fore the authorities and courts.

Contributing Editor

Franz Hoffet is a partner of Homburger’s competition and regulatory teams. He has extensive experience in all areas of Swiss and European competition law, ranging from merger control to administrative

and civil antitrust litigation. He has represented a wide range of companies and trade associations in proceedings before the Swiss competition authorities, the European Commission, and in civil courts and arbitration proceedings. He also advises clients on compliance matters of Swiss and European competition law. Franz is the Head of the Swiss Bar Association’s Committee on Competition Law.

Homburger Hardstrasse 201

Prime Tower 8005 Zurich Switzerland Tel: +41 43 222 1000 Email: franz.hoffet@homburger.ch Web: www.homburger.ch

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INTRODUCTION Contributed by: Franz Hoffet, Homburger

Global Overview – Antitrust Litigation in 2025 Major international law firms with antitrust specialist teams expect the rise of private antitrust litigation to continue in 2025. In some of the more important juris - dictions such as the US, Europe and the UK, the focus will be on digital markets where private antitrust litiga - tion before national courts has become a key enforce - ment element in addition to regulatory investigations. In particular, large tech companies have become the target of private claims, even more so since new digi - tal regulatory regimes (eg, EU DMA and UK DMCC) facilitate follow-on and standalone damage claims. The most recent example of such claims against tech platforms is one brought by several thousand Euro - pean hotels against Booking.com for damages suf - fered as a consequence of the platform’s allegedly excessive commission rates. While traditional abuse of dominance arguments still prevail, new innovative theories of harm, including consumer, data protection and environmental claims are now brought forward by plaintiffs in private antitrust litigation. In many jurisdictions, the expectation of significant returns has increased the willingness of investors to finance litigation funding. Major cartel follow-on dam - age cases have benefited from litigation funding and it is expected that this trend will continue and expand internationally. Courts, such as the British Competition Appeal Tribunal (CAT), have recognised the necessity of funding for plaintiffs to be able to bring collective proceedings and have clarified that it lies within the courts’ power to allocate a portion of the damages awarded to a litigation funder’s fees. In Asia, the development of private enforcement is still in an early phase, with Japan experiencing an increase in the number of competition damage claims. These are mostly follow-on cartel damage cases brought after decisions by the Japan Fair Trade Commission. In Japan, there have also been damage claims against directors of companies as a consequence of the com - panies’ decisions not to apply for leniency. Private antitrust damage litigation is picking up even in jurisdictions without developed class action sys - tems. As an example, a group of retail merchants in Switzerland has recently sued Mastercard and Visa for damages in the amount of CHF142 million. The claim

is based on the argument that interchange fees are no longer justified by economic grounds, despite recent amicable settlements between the Swiss Competition Commission, Mastercard and Visa which implicitly recognise the economic need for interchange fees. Finally, as competition regulators have increasingly investigated restraints in labour markets, private anti - trust litigation now also seems to develop a new focus in this area, particularly with respect to no-poach agreements. Plaintiff-Friendly Court Decisions in Europe Europe has seen a number of plaintiff-friendly deci - sions by the European Court of Justice (ECJ) and other European courts over recent months. For example, in Heureka v Google the ECJ had to clarify the application of Article 10 of the Damages Directive on limitation periods. Heureka, a Czech online comparison services company claimed dam - ages from Google in a Czech court in the aftermath of the EU Commission’s 2017 decision on Google shopping. In its Heureka v Google decision, the ECJ clarified that the limitation rules in the Damages Direc - tive do not apply retroactively. The ECJ had to decide whether the Czech time limit of four years had already elapsed before the Czech Republic had adopted the Damages Directive after the 2016 transposition dead - line. The ECJ took a plaintiff-friendly view and reaf - firmed the requirements set out in its Volvo decision. It concluded, applying its earlier cessation criteria, that the Czech limitation period could only have started to run after 2017 when the Commission considered that Google’s alleged abuse of dominance had ended. With respect to the knowledge requirement, the ECJ stressed that the victim must know sufficient infor - mation to be able to bring an action for damages. According to the ECJ, that moment occurs at the date of publication of the summary of the Commission’s decision in the EU Official Journal. Another plaintiff-friendly trend can be observed in the decisional practice of national courts with respect to the estimation of damages. Recognising the difficulty for plaintiffs to prove damages suffered as a con - sequence of anti-competitive conduct, the Spanish Supreme Court in a truck cartel case has confirmed its

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INTRODUCTION Contributed by: Franz Hoffet, Homburger

competence to estimate the quantification of the harm suffered due to the “practical impossibility of assess - ing the harm” for the plaintiffs. This was particularly the case where the impossibility to quantify the harm arose from the geographical scope of a cartel, its duration and the complexity of the products. This made it difficult to determine an appropriate counter - factual scenario. The Spanish Supreme Court went on to refer to the practice of other European courts, including the CAT, when it came to estimating dam - ages. The Spanish Supreme Court held that since the minimum foreseeable damage had been “prudently set by most courts at 5% of the cost of the trucks”, this should be the starting point of its estimation. Another example of plaintiff-friendly court decisions are recent rulings by German courts which will make it easier for victims of competition law infringements to enforce their claims in German courts by assign - ing them to special purpose vehicles (SPVs) which then litigate the assigned claims as a sole plaintiff. In 2021 and 2022 already the German Federal Court of Justice held that the assignment of multiple claims to an SPV does not generate a conflict of interest. Under the German Legal Services Act (the RDG; which serves to ensure that legal services are only provided by qualified individuals and entities) entities which are not law firms are required to obtain a special licence before providing collection services. The RDG was amended in 2021 to expressly allow registered legal service providers to assess claims. In 2024, two German courts of appeal held that legal services pro - viders’ qualitative assessments of antitrust damages claims are covered by their collection licence under the RDG. The two cases concerned both a follow-on and a standalone claim. The German Federal Court of Justice still must issue a final judgment on wheth - er the combined enforcement of antitrust damages complies with the RDG. A plaintiff-friendly decision is expected in light of the ECJ’s guidance. The ECJ held in a case referred by the Dortmund regional court, that national rules preventing victims from assigning anti - trust damages claims to a legal service provider for collective enforcement – even in cases without a bind - ing infringement decision by a competition authority – would violate the effectiveness principle unless the national law provides an alternative mechanism for bundling individual claims and the pursuit of an indi -

vidual damage would be impossible or excessively difficult. Yet another example for the ECJ’s plaintiff-friendly stance is a recent decision in which it held that a par - ent company can be sued in its place of residence for damages suffered by a private plaintiff as a con - sequence of a subsidiary’s antitrust infringement in a different member state. In 2014, Heineken’s Greek subsidiary was fined by the Greek Antitrust Authority for unlawfully forcing wholesalers and distributors to favour its brands. In 2017, a competitor of Heineken’s Greek subsidiary brought a follow-on action in the Netherlands where Heineken’s parent company is domiciled, against both Heineken and its Greek sub - sidiary, seeking damages. The Dutch Supreme Court referred the question of jurisdiction to the ECJ. Under the applicable provision of the Brussels Regulation (Article 8 (1)), if there is a close connection between claims in an international context and a risk of irrec - oncilable judgments arising from separate court pro - ceedings, the defendants can all be sued before the court in the country where one of them (the so-called anchor defendant) is domiciled. The ECJ applied the approach of the European Commission when impos - ing fines for breaches of EU Competition Law and found that the parent company can be sued in its home country as long as it has decisive influence over the subsidiary which has committed the competition law infringement unless the subsidiary decides inde - pendently on its own conduct in the market. Under new case law there is a presumption that decisive influence is exercised where the parent holds all or Similar to in the EU – where thousands of hotels have filed a damage claim against the OTA platform Book - ing.com for excessive pricing – platforms are under pressure in respect of private litigation in the US as well. For example, Apple is being sued for allegedly illegal restraints in competition in its app store dis - tribution and billing services. A new claim has been brought by a consumer class for alleged monopolisa - tion of app distribution resulting in overcharges on IOS apps and in-app purchases. Another platform-relat - ed litigation has been brought against the electronic medical records provider Epic Systems. It is alleged almost all of the capital in the subsidiary. Focus on Tech Companies in the USA

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INTRODUCTION Contributed by: Franz Hoffet, Homburger

that Epic Systems is foreclosing competition in plat - form markets for platforms which allow health insur - ances to access and analyse medical record informa - tion. Allegedly, Epic Systems is pressuring insurance companies which use its medical record system to stop using competing platforms. A new trend in the US concerns challenges of merg - ers by private antitrust litigation. For example, a pri - vate consumer class has sued T-Mobile with respect to its merger with Sprint. The class alleges that the acquisition permitted all cell phone providers to raise their prices. The consumer class not only claims damages but also seeks to unwind the merger and create another competitor. Similarly, private plaintiffs have challenged the merger between Alaska Airlines and Hawaiian Airlines although – as in the case of T-Mobile – the transaction has already been cleared by the Department of Justice.

Finally, in the US a new trend with respect to court approval of settlements seems to be developing. District courts have recently rejected proposed class action settlements. For instance, in a case regarding payment card fees charged to merchants, a settle - ment proposed by the parties has been rejected by the court which found the proposed settlement amount of USD30 billion to be insufficient. It appears that federal courts are increasingly willing to more deeply scruti - nise settlements in antitrust class actions.

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AUSTRALIA

Australia

Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin

Sydney

Tasmania

Contents 1. Introduction p.11 1.1 Current Framework for Private Antitrust Litigation p.11 1.2 Recent Developments p.12 2. Private Antitrust Claims: Basis and Procedure p.12 2.1 Statutory Basis p.12 2.2 Courts p.12 2.3 Impact of Competition Authorities p.13 2.4 Proof p.13 2.5 Pass-On Defence p.14 3. Limitation Periods and the Duration of Litigation p.14 3.1 Statute of Limitations p.14 3.2 Typical Length of Private Antitrust Litigation p.14 4. Class and Collective Actions p.14

8. Damages p.19 8.1 Damages: Assessment, Passing On and Interest p.19 9. Liability and Contribution p.19 9.1 Joint and Several Liability p.19 9.2 Contribution p.20 10. Other Remedies p.20 10.1 Injunctions p.20 10.2 Alternative Dispute Resolution p.21 11. Funding and Costs p.21 11.1 Litigation Funding p.21 11.2 Costs p.21 12. Appeals p.21 12.1 Basis of Appeal p.21 13. Looking Forward p.22 13.1 Legislative Trends and Other Developments p.22

4.1 Statutory Basis p.14 4.2 Opting In or Out p.15 4.3 Direct/Indirect Purchasers p.15 4.4 Class Certification p.15 5. Choice of Jurisdiction p.15 5.1 Rules on Jurisdiction and Applicable Law p.15 6. Disclosure/Discovery p.15 6.1 Disclosure/Discovery Procedure p.15 6.2 Legal Professional Privilege p.17 6.3 Leniency and Settlement Agreements p.17 7. Witness and Expert Opinions p.18 7.1 Witness Procedure p.18 7.2 Expert Witness Role and Procedure p.18

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AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin

Gilbert + Tobin is a market-leading competition, con - sumer and market regulation team. It is one of the largest in Australia, comprising ten partners, five spe - cial counsel and more than 40 lawyers. The team ad - vises on some of the most complex and high-profile matters across the Asia-Pacific region, with deep ex - pertise spanning the full spectrum of competition law – from global merger control to complex enforcement and regulatory disputes. With key offices in Sydney, Melbourne and Perth, the team adopts a multi-disci -

plinary approach, integrating law and economics with a deep understanding of clients’ businesses, indus - tries and regulators. This combination is why leading organisations rely on Gilbert + Tobin to deliver practi - cal, commercially astute advice that keeps pace with the demands of business. The team has acted in high-stakes litigation for major global and Australian clients, achieving successful outcomes in a number of landmark antitrust proceedings.

Authors

Elizabeth Avery is a senior partner and leads Gilbert + Tobin’s market- leading competition, consumer and market regulation group. Combining legal analytics, innovative problem- solving and a practical approach,

Simon Muys is a senior partner in Gilbert + Tobin’s competition,

consumer and market regulation group and leads the Melbourne practice. He’s one of Australia’s top competition lawyers, advising on complex mergers, ACCC investigations, litigation and regulatory issues, particularly in energy, telecommunication, infrastructure and transport. He has worked on many of the most significant competition litigation matters and merger clearances of the last decade, including Tribunal and Federal Court matters. Simon is also a leading adviser on access, pricing and economic regulation. He regularly speaks and writes on competition issues and holds leadership roles with the Law Council of Australia and the International Bar Association.

Elizabeth has a global reputation for achieving her clients’ objectives. She advises on competition law risk in complex matters across many high-stakes situations, including merger clearances, corporate strategy, enforcement litigation and investigations. Drawing on a wealth of experience as an antitrust lawyer at a global firm in New York for many years, Elizabeth also advises on matters with multijurisdictional dimensions and brings a depth of comparative insights. She is regularly invited to speak internationally on Australian competition law.

Jacqueline Reid is a lawyer in Gilbert + Tobin’s competition, consumer and market regulation group. She advises on ACCC investigations, merger clearance, competition law compliance and consumer law

Owen Fischbein is a lawyer in Gilbert + Tobin’s competition, consumer and market regulation group. He advises on all aspects of competition and consumer law, including merger clearance, cartel investigations and

advice. She has been involved in leading competition litigation matters, including complex merger and section 45 proceedings. Jacqueline has a particular interest in logistics, health, aviation, software, communications and financial services industries.

allegations of misuse of market power. Owen advises clients across all sectors, with a particular interest in energy, financial services, private equity and consumer and retail. He is currently acting for clients in two high-profile misuse of market power proceedings.

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AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin

Gilbert + Tobin Level 35 Tower 2/200 Barangaroo Ave Sydney NSW 2000 Australia Tel: +61 02 9263 4000 Web: www.gtlaw.com.au

1. Introduction 1.1 Current Framework for Private Antitrust Litigation The Competition and Consumer Act 2010 (Cth) (CCA) is the primary Australian legislation for competition law and governs the scope of claims that may be brought for any contravention. Part IV of the CCA prohibits a range of anti-competi - tive conduct, including: • cartel conduct; • resale price maintenance; • misuse of market power; • anti-competitive mergers and acquisitions; • anti-competitive agreements; • anti-competitive exclusive dealing; and • concerted practices. There are four general sources of litigation in relation to contraventions of these provisions: • the Australian Competition and Consumer Com - mission (ACCC) is the primary enforcer of competi - tion laws, and can bring civil enforcement proceed - ings in the Federal Court of Australia; • the Commonwealth Director of Public Prosecutions (CDPP) can bring criminal proceedings for cartel conduct only; • corporations and individuals may commence pri - vate actions for damages and certain other rem - edies (such as injunctions and declaratory relief); and • class action litigation can be brought by a lead applicant representing group members who have

allegedly suffered loss or damage arising from the contravention (class actions are governed by The Federal Court of Australia Act 1976 (Cth) (Federal Court Act)). There has been a history of private antitrust cases over the years. Recently, this has focused on mis - use of market power litigation following amendments made to those provisions in 2017. Significant private antitrust cases in Australia include the following. • Queensland Wire Industries v BHP (1989) 167 CLR 177 – a foundational private misuse of mar - ket power case. The High Court held that BHP’s refusal to supply a variety of steel bar to a down - stream rival was a misuse of market power. It sets out important principles for defining markets and determining whether a corporation possesses market power. • News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 – a case relating to exclusionary provisions in contracts which established the Australian precedent that the meaning of ‘purpose’ (for the purposes of Part IV of the CCA) is subjective. • Seven Network Limited v News Limited [2009] FCAFC 166 – the case involved several competi - tion law issues, particularly around Section 45, in relation to anti-competitive agreements. The Full Court: (a) dismissed Seven Network’s appeal and clari - fied that it is not necessary for all parties to an agreement to share the anti-competitive purpose. It is sufficient if one party had a

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AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin

substantial purpose of substantially lessening competition; and (b) rejected Seven’s arguments about market definition and competitive constraints, affirming that Seven had not proven that C7 imposed a close competitive constraint on Fox Sport. • Epic v Google and Apple – a misuse of market power case against each of Google and Apple related to access to their respective app stores and related terms restricting alternative in-app pay - ments (see 1.2 Recent Developments ). 1.2 Recent Developments There has been a significant increase in private anti - trust litigation in Australia in recent years, particularly in relation to claims involving an alleged misuse of market power, where several cases have been com - menced since 2017 (following amendments that were made to the provision in late 2017). However, a num - ber of these have been resolved commercially or with - drawn. The first contested liability cases under the amended misuse of market power provision to come to judg - ment were commenced by Epic against each of Goog - le and Apple. The Federal Court heard the Epic matter in early 2025 and the Court’s decision was handed down partially in Epic’s favour in August 2025. While the judgment has not been released at the time of writing, the Court found that both Apple and Google had misused their substantial degree of market power by using technical and contractual restrictions to fore - close alternative app distribution and in-app payment options on iOS and Android since 2017. The litigation is significant for two reasons: it involves the first contested liability case to come to trial under the new misuse of market power provisions, and, due to the context in which it arose, it raises high-profile issues of access, exclusivity, and interoperability on large digital platforms. The litigation also involves follow-on class action proceedings, on behalf of app developers, which are continuing. There are numerous other private misuse of mar - ket power cases currently before the Federal Court, including:

• Engage Marine v Tasmanian Ports Corporation (a follow-on private action after the ACCC resolved its prosecution of this conduct in 2021 through consent orders); • Sinclair v Sony Interactive Entertainment; • Australian Gypsum Industries v CSR Building Products; • Riverine Grazier v Google; • Q News and Sydney Times v Google; and • Employment Hero v SEEK. It has become clear that private litigation under the new Section 46 (with its lower threshold) has become an increasingly attractive commercial strategy for par - ties when responding to conduct engaged in by larger or substantial competitors. 2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis A person (including a corporation) who has suffered loss or damage, or is likely to suffer loss or damage, as a result of a contravention of the CCA, can bring proceedings in the Federal Court seeking damages (Section 82) and a range of other remedies, including injunctions (Section 80) (excluding in relation to an anti-competitive merger or acquisition), declarations and other orders, such as an order that a contract is void (Section 87). Section 83 of the CCA further facilitates private “fol - low-on” actions by enabling findings of fact made in certain proceedings against a corporation to be used as prima facie evidence against that corporation in certain other proceedings. This is intended to assist private litigants in follow-on actions where the ACCC has successfully proved a contravention of Australia’s competition law. 2.2 Courts The Federal Court exercises primary jurisdiction over all civil and criminal proceedings arising under the CCA in relation to alleged breaches of the CCA. The Australian Competition Tribunal (Tribunal) func - tions as a form of limited merits review in relation to

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certain ACCC decisions, including authorisations, merger authorisations, and, under the new and man - datory merger regime (fully effective from 1 January 2026), all merger reviews. The Tribunal comprises a presidential member, who must be a judge of the Fed - eral Court, and two non-presidential members, who possess knowledge or experience in industry, eco - nomics, commerce, law or public administration. The Tribunal can hear certain appeals from ACCC decisions, but otherwise does not determine litiga - tion matters under the CCA. Appeals from decisions of the Federal Court are heard by the Full Federal Court and by the High Court (sub - ject to special leave being granted). 2.3 Impact of Competition Authorities With the exception of the new mandatory merger notification regime, in force from 1 January 2026, the ACCC does not determine contraventions of the CCA; that function lies exclusively with the courts. Accord - ingly, ACCC decisions are not binding on any courts. Similarly, decisions of competition authorities in other jurisdictions are not binding on antitrust proceedings before Australian courts. The ACCC has an express statutory right to formally intervene as a third party in private proceedings com - menced under the CCA, with leave of the court. If the ACCC does intervene, it will be regarded as a party to the proceeding and has all the rights, duties and liabilities of a party. Usually, the ACCC will consider intervening only where a case involves one of the following: • significant public interest; • there are important or novel questions of statutory construction; or • to make submissions about the “deleterious inter - national nature of the conduct” even if the eco - nomic impact in Australia is small. While the ACCC does not intervene in every private case, it has done so over the years and will continue doing so where it considers the public interest to be served in some way, including where a case raises

questions of legal principle that the ACCC wishes to be heard on. Alternatively, the ACCC may also seek leave to appear in proceedings as an amicus curiae (“friend of the court”) or as a non-party. This occurred recently in the Epic v Apple proceedings. In that case, Apple sought a stay of the proceedings on the basis that the com - mercial agreement between it and Epic required all disputes to be determined in California courts. The ACCC made submissions concerning the public poli - cy in favour of disputes involving Australia’s competi - tion laws being heard and determined by Australian courts. The court granted the ACCC leave to intervene as a non-party and make written submissions only as to issues of public policy. In respect of merger decisions, the ACCC is the pri - mary administrative decision maker and therefore any decision is subject to challenge in the Federal Court only in respect of an error of law (ie, judicial review). A merger review decision made by the ACCC can be reviewed by the Tribunal on a limited merits review basis. While the Tribunal remakes the decision on the merits, it does so principally on the basis of the mate - rial that was before the ACCC. 2.4 Proof In civil matters, the applicant bears the burden of proof in establishing its case. If a respondent wishes to rely on any available defences or cross-claims, the respondent bears the burden of proof in establishing that defence or cross-claim. The relevant standard of proof in civil proceedings is the “balance of probabilities”, meaning the applicant will need to prove, on the balance of probabilities, that the respondent has contravened one or more competition law prohibitions and, where damages are sought, that the loss has been caused as a result of the contravening conduct. However, in determining whether conduct (including a merger) would be “likely” to substantially lessen com - petition in contravention of the CCA, the court must be satisfied that there is a “real commercial likelihood” or “real chance” of the conduct doing so. This is accept - ed as being a standard that is less than the balance of

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AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin

probabilities (ie, “more probable than not” ((see ACCC v Pacific National Pty Ltd [2020] FCAFC 77). In criminal cartel matters, the CDPP bears the burden of proof. The standard of proof in criminal cartel mat - ters is higher, at the level of “beyond a reasonable doubt”. 2.5 Pass-On Defence The question of whether there is a “passing on” or “pass-through” defence in Australia has not been determined. However, in an interlocutory judgment in Auskay International Manufacturing & Trade Pty Ltd v Qan - tas Airways Ltd (2008) 251 ALR 166, the Court com - mented that if a direct purchaser “had passed on the full cost of the international airfreight services to all of its clients, it would seem to have suffered no loss”. This may indicate the possibility of such a defence in Australia. Indirect purchasers have legal standing to sue and will need to prove that they have suffered loss or damage by conduct in contravention of competition laws to be entitled to recover damages. 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations The applicable limitation period depends on whether the competition proceedings are criminal or civil. In the case of civil claims, the limitation period will also depend on the relief sought as follows: • in relation to civil claims seeking penalties, the claim must be brought within six years of the date on which the contravention occurred; and • in relation to civil claims seeking damages, the claim must be brought within six years of the date on which the cause of action accrued, which is the date the loss or damage is suffered, rather than when it is discovered. There is no limitation period for a proceeding seeking an injunction. While there is also no limitation period

for relief sought under Section 87 of the CCA (which gives the court broad discretion to make a range of other orders), it does not provide applicants with a stand-alone cause of action and therefore must be anchored to another substantive claim for relief, such as damages or an injunction. There is no limitation period for criminal cartel cases. The only time constraint is that a criminal case can only be commenced in relation to conduct occurring post 24 July 2009, which is the date that criminal car - tel offences became law in Australia. 3.2 Typical Length of Private Antitrust Litigation The length of competition law litigation varies signifi - cantly, depending upon the circumstances. Proceed - ings at first instance can often exceed two years to complete, but could be longer, depending on the num - ber of parties, the number of witnesses, the volume of discovery, the legal and economic complexities of the case and the need for expert evidence. It is not uncommon for liability to be heard first, before a sepa - rate hearing on the question of remedies. In addition to this, time must be allowed for the delivery of judg - ment, which may itself take several months depending on the complexity of the issues, the Court’s schedule and any appeals. Australian courts have, at times, been prepared to expedite competition matters where this is seen to be necessary to protect competition or in the context of mergers.

4. Class and Collective Actions 4.1 Statutory Basis

Representative proceedings, also referred to as class actions, may be brought for damages for competition law contraventions of the CCA. The Federal Court Act sets out a detailed regime for representative proceed - ings. To bring a representative proceeding, the following criteria must be satisfied:

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AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin

• seven or more persons have claims against the same person; • the claims of all those persons are in respect of, or arisen out of, the same, similar or related circum - stances; and • the claims of all those persons give rise to a sub - stantial common issue of law or fact. Representative proceedings must identify the group of persons on whose behalf the claim is brought, typical - ly by specifying the shared characteristics that define group membership. A claim is typically commenced by one or two lead applicants who represent the class. 4.2 Opting In or Out The Federal Court Act provides for an “opt-out” mod - el whereby the outcome of the proceedings will bind persons who are within the defined group unless they opt out by written notice by a date fixed by the court. 4.3 Direct/Indirect Purchasers Direct and indirect purchasers have standing to bring representative proceedings for damages arising from contraventions of the competition provisions of the CCA, provided that the statutory criteria described above under the Federal Court Act are satisfied, and each group member can establish that they have suf - fered loss or damage as a result of the contravening conduct. 4.4 Class Certification There is no requirement for a class certification for proceedings to be brought as a class action. 5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law The CCA not only applies to conduct in Australia but also to conduct outside Australia by: • bodies corporate incorporated in or “carrying on business” within Australia; • Australian citizens; or • persons ordinarily resident within Australia. The extraterritorial reach of Australia’s competition laws may be even broader than that stated above.

This is by virtue of the State and Territory Competi - tion Codes, which were enacted due to constitutional limitations on Commonwealth legislative power. The Competition Codes expanded the reach of Australia’s competition laws to persons (or companies) “other - wise connected” with Australia. The phrase “or other - wise connected with” has been considered in passing judicial commentary from the Federal Court in ACCC v Yazaki Corporation [2015] FCA 1304. In that case, it was interpreted as being capable of expanding the extraterritorial reach of Australia’s competition laws, although the matter has yet to be conclusively deter - mined. Several of Australia’s consumer law prohibitions require the relevant conduct to occur “in trade or commerce,” which is defined as trade or commerce within Australia or between Australia and places out - side Australia. Once it can be shown that the CCA applies to the facts in issue, the Federal Court (and other courts) will generally only assume jurisdiction when the respond - ent or defendant is validly served with court process or a requirement for service is dispensed with by court order. Generally, it is necessary to obtain leave to serve pro - cess overseas, and to obtain that leave, the applicant (including the ACCC) needs to establish a prima facie case for the relief claimed. However, it is not neces - sary to establish this for each cause of action relied upon, only that it can be made out for any one of the causes of action (Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153). 6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure Access to Documents Pre-Commencement The ACCC has broad statutory powers to compel the provision of information and documents, and conduct oral examinations of individuals, if it has reason to believe that a person is capable of providing informa - tion or documents regarding a matter that constitutes or may constitute a contravention of the CCA (Section 155, CCA). These investigatory powers cease to apply

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AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin

after the commencement of proceedings, from which point the ACCC must use court-ordered discovery. A private party generally has limited ability to obtain documents from the ACCC before proceedings have begun. However, where the ACCC has commenced proceedings, the respondent is entitled to request that the ACCC provide it with every document in connec - tion with the matter that tends to establish the cor - poration or other person’s case (Section 157, CCA), subject to some exceptions. For private civil actions, there is the ability under the Federal Court Rules for parties to apply to the court for preliminary discovery before commencing a sub - stantive claim. To do this, the applicant must show that, after making reasonable enquiries, they do not have sufficient information to decide whether to com - mence a proceeding and they reasonably believe that they may have a right to relief (see Pfizer Ireland Phar - maceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193). Discovery in Civil Proceedings All parties (whether ACCC or private litigants) to civil proceedings are also able to seek standard discovery once proceedings have commenced. There is a range of discovery orders available to litigants, and the court will generally grant discovery if doing so will facilitate the just resolution of the proceeding and is necessary for the determination of issues in the proceeding. Outside of formal discovery, a party to a proceed - ing can also obtain documents from another party by issuing a notice to produce. A notice to produce can seek documents that are mentioned in pleadings or affidavits, or require the production of documents at trial or during a hearing. Discovery in Criminal Proceedings Unlike civil matters, the prosecutor in a criminal matter has a duty of disclosure, which derives from the cen - tral tenet of the Australian criminal justice system that accused persons are entitled to know the case against them. The duty of disclosure arises from the combina - tion of the common law, statute, professional conduct rules, prosecution policies and practice directions of

the courts. If a prosecutor does not comply with this obligation, it can result in a miscarriage of justice. In prosecuting criminal cartel matters, the CDPP must comply with any applicable State or Territory laws and any court directions regarding disclosure (this will depend on the State or Territory in which the proceedings are commenced) as well as profes - sional conduct rules. If not already required by those laws, the CDPP must comply with the requirements set out in the “Statement on Disclosure in Prosecu - tions Conducted by the Commonwealth” (Statement of Disclosure), which requires the CDPP to disclose any material that: • can be seen on a sensible appraisal by the pros - ecution to run counter to the prosecution’s case; • might reasonably be expected to assist the accused to advance a defence; or • might reasonably be expected to undermine the credibility or reliability of a material prosecution wit - ness. Ordinarily, the CDPP’s case will be provided to the accused by way of a “Brief of Evidence” (Brief). The timing of the provision of the Brief will depend on the jurisdiction in which the claim is first commenced, but often this will be during committal proceedings. Subpoenas Third-party evidence can be compelled through the issuance of subpoenas in both civil and criminal pro - ceedings. A subpoena can be issued in relation to the production of documents or to compel a witness to appear to give evidence (or both). In the Federal Court, a subpoena may be issued only with leave of the court. The party seeking leave for the issuing of a subpoena bears the onus of demonstrat - ing to the court that the subpoena has a legitimate forensic purpose in relation to the issues in the pro - ceeding. The party seeking leave is also subject to paying any reasonable costs of compliance incurred by the third party. There is no requirement for the party issuing the sub - poena to provide notice to any other party.

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AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin

6.2 Legal Professional Privilege Communications subject to a claim of legal profes - sional privilege can be withheld from inspection, but their existence must be disclosed in a list of discov - ered documents, as well as a description of the docu - ment and the privilege basis claimed. Legal professional privilege attaches to confidential communications between a lawyer and client made for the dominant purpose of giving or receiving legal advice (advice privilege) or for use in actual or con - templated litigation or legal proceedings (litigation privilege). The privilege also extends to advice pro - vided by in-house counsel, although the Court will scrutinise the independence of the lawyer’s role and the nature and character of the advice (whether legal or commercial). Communications may also be subject to without prejudice privilege, which applies when parties have attempted to settle the matters in dispute between them. Where a document or communication has been prepared for multiple purposes, the party asserting privilege must establish that the communication had the requisite dominant purpose by adducing focused and specific evidence to establish that the dominant purpose for which the document was created, or the communication was made, was for a legal purpose. Courts will consider a variety of evidence to assess the dominant purpose for which a document or commu - nication was made, including public statements and/ or media releases made by a company. An unsup - ported assertion is insufficient to establish a dominant purpose. 6.3 Leniency and Settlement Agreements In Australia, there is no general right that enables a successful or unsuccessful applicant for immunity or leniency to withhold evidence disclosed by it to the ACCC (or CDPP) when obtaining leniency in any sub - sequent court proceedings. Whether an applicant may be able to resist an applica - tion for access to or discovery of such documents will depend on the circumstances and the evidence being

sought. In the past, the ACCC has successfully resist - ed an application for access to admissions made by a competitor in securing leniency from the ACCC on the grounds that the documents related purely to credit and are not discoverable (Australian Competition & Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444, upheld on appeal: see Visy Industries Holdings Pty Ltd v Australian Competition & Consumer Commission [2007] FCAFC 147). A leni - ency applicant may be able to resist an application on the same grounds. Further, in 2009, provisions were introduced in the CCA that enable the ACCC to withhold producing to the court or another party to a proceeding “protected cartel information”, being information provided to the ACCC in confidence and relating to a possible contravention of the civil or criminal cartel provisions. The ACCC may, but cannot be compelled to, produce protected cartel information to a party to proceedings or a court or Tribunal (except with leave in the latter case). However, in deciding whether to disclose pro - tected cartel information, or to grant leave, the ACCC or the court/Tribunal (as applicable) must have regard to specific statutory factors (and not any other mat - ters). Similarly, the ACCC may, but cannot be required to, disclose protected cartel information to another party to a proceeding, and if it does, it must consider specific statutory factors (and not any other matters). The ACCC may seek to resist disclosing leniency doc - uments sought by a private litigant under subpoena based on the common law protection known as public interest immunity. A private litigant could theoretically access leniency documents from the ACCC under freedom of informa - tion (FOI) legislation. However, the ACCC has almost invariably resisted FOI production, relying on one or more of the numerous exemptions in sections 33 to 47 of the FOI Act, and the Courts have supported decisions to refuse access (eg, Telstra Australia Ltd v Australian Securities and Investments Commission [2000] AATA 71). Amongst others, this includes an exemption where access to documents might reason - ably be expected to affect the enforcement or proper administration of the law.

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AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin

7. Witness and Expert Opinions 7.1 Witness Procedure Proceedings heard in the Federal Court are subject to the: • Evidence Act 1995 (Cth) (Evidence Act), which prescribes the rules governing admissible forms of evidence, including evidence given by witnesses; and • The Federal Court Act and Federal Court Rules, supplemented by the Court’s Practice Notes, which prescribe various procedural rules. The primary way that witness evidence is adduced is through evidence in chief. The form of evidence in chief is set by the court and turns on the nature of the issues. In competition proceedings it is ordinarily given by affidavit rather than by oral narration in court. Affidavits are used because they promote efficient case management and reduce hearing time and cost, and the Federal Court rules and Practice Notes pre - scribe their form and content. Unless the court orders otherwise, an affidavit becomes evidence when it is read or taken as read, and remains subject to objec - tions as to admissibility. Evidence in chief, whether oral or by affidavit, must be relevant and not caught by an exclusionary rule to be admissible. A party is free to choose its witnesses, but it must call those necessary to prove the facts it has pleaded. If a party, without explanation, fails to give evidence, to call a witness, or to tender documents, the court may draw an inference that the missing evidence would not have assisted that party. It does not permit an inference that the absent material would have dam - aged the case. Any witness called by a party may be cross‑examined by the opposing party. Cross‑examination is oral and usually in person, although the court may permit it by video link where appropriate. It may address both fact and credibility, but questioning must be confined to admissible matters. Cross‑examination is not compul - sory and is often dispensed with where a witness is simply required to prove uncontroversial documents. The key forensic question is whether a party intends to

contradict or challenge the accuracy of the evidence. A party that wishes to lead contrary evidence or later submit that a witness is mistaken or unreliable must first put the substance of that challenge to the witness in cross‑examination. If a witness is unwilling to cooperate, a party may compel evidence by subpoena, which can require attendance in court to give oral testimony, production of documents, or both, though production subpoenas are more common for strategic reasons. Outside a subpoena, a witness cannot be forced to confer with lawyers. Once issued, a subpoena must be served; non‑compliance is contempt and can lead to sanc - tions, including a warrant for arrest. The issuing party must provide conduct money and meet the recipient’s reasonable costs of compliance. A person subpoe - naed to give evidence may, with the court’s leave or direction, give evidence in chief by affidavit rather than orally. If a compelled witness proves adverse, the call - ing party can seek to have the witness declared hos - tile so that cross‑examination is permitted. 7.2 Expert Witness Role and Procedure The courts accept expert evidence and it is routinely relied upon in competition cases in Australia. Experts must act independently of the parties. Any expert wit - ness must read and agree to be bound by the Harmo - nised Expert Witness Code of Conduct prior to giving evidence. Admissibility of expert evidence turns on s 79 of the Evidence Act and the report must identify the field of specialised knowledge, the factual assump - tions, the reasoning path and the literature or data relied upon. Importantly, the expert’s paramount duty is to the court, not the retaining party, and the report should state any limits of expertise, any material uncertainty and any testing or sensitivity analysis undertaken. The Federal Court’s Practice Notes typically require the expert report to annex various documents, such as the letter of instruction from the relevant party. Where there are multiple competing expert witnesses, it is common for their evidence to be presented con - currently through what is referred to as a joint expert conference (colloquially referred to as a “hot tub”). Commonly, judges will also request that experts seek

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