USA Law and Practice Contributed by: Robert Houck, William Lavery, Leigh Oliver and Joseph Ostoyich, Clifford Chance LLP
In recent years, the Division has emphasised prompt reporting and remediation as part of its leniency framework; the most significant recent development is the introduction of a whistle-blower rewards pro - gramme. The Division introduced this programme in July 2025 in partnership with the US Postal Service (USPS) Inspection Service and USPS Office of Inspec - tor General. Under this whistle-blower programme, individuals who provide original information leading to success - ful enforcement actions resulting in criminal fines or recoveries exceeding USD1 million may be eligible for the monetary awards typically ranging from 15% to 30% of the recovery. The programme is designed to incentivise reporting antitrust crimes directly to the government, and may create additional pressure for companies discovering potential cartel conduct to investigate rapidly and secure a leniency marker at the earliest possible stage. Litigants in US federal court may rely on, and com - pel, testimony from fact witnesses both before and during trial. Prior to trial, the principal tool for com - pelling a witness to testify is a deposition, in which the requesting litigant compels the witness to attend an in-person interview to provide sworn testimony in front of a judicial officer. Parties can also request that opposing parties respond to written questions, called interrogatories. In either case, the court may compel the witness to respond under threat of sanction. Dur - ing trial, judges generally prefer live testimony so that the fact-finder can evaluate the witness’s credibility and so that the opposing party can cross-examine the witness. Deposition testimony may be admitted into evidence to contradict or impeach testimony given during trial, or in some cases if a witness is unavailable to testify in court. 7.2 Expert Witness Role and Procedure The rules governing federal court litigation, includ - ing antitrust claims, permit parties to rely on expert evidence both before and during trial. In the antitrust 7. Witness and Expert Opinions 7.1 Witness Procedure
context, the parties nearly always rely on one or more experts to establish or challenge key issues, including: • whether a purported class of plaintiffs satisfies the requirements for certification; • the appropriate contours of the relevant product market; • a party’s market power (or lack thereof); and • the proper measure of damages. Experts will generally prepare a written report (which must be provided to the opposing party prior to trial) and provide in-person testimony (Fed R Civ P 26[a][2]). An expert’s testimony is admissible as evidence only if the court determines that: • the expert’s specialised knowledge will assist the fact-finder; • the testimony is based on sufficient facts or data; • the testimony is the product of reliable principles and methods; and • the expert has reliably applied these principles and methods to the facts of the case. This assessment requires the court to scrutinise the expert’s particular methods and their degree of acceptance in the relevant field (see Daubert v Mer- rell Dow Pharmaceuticals , 509 US 579 [1993]; Fed R Evid 702). Before or during trial, parties can challenge the admissibility of opposing expert testimony or dis - pute the validity of that testimony. Parties may depose opposing experts, cross-examine them at trial, and seek to introduce evidence that purports to conflict with an expert’s conclusions. 8. Damages 8.1 Damages: Assessment, Passing On and Interest The Clayton Act does not provide for punitive dam - ages. Instead, plaintiffs who suffer antitrust injury may recover treble damages. For consumer plaintiffs injured by a price-fixing or a market-division cartel, common measures of damages include the amount of the overcharge caused by the conspiracy, meas - ured by identifying the price they would have paid but
252 A NTITRUST LI T IGATI O N 2026
CHAMBERS.COM
Powered by FlippingBook