Companies fighting over antitrust law
“Antitrust is the new corporate,” crowed one senior partner from a strong practice. What he meant was that this area of law, once a niche discipline, now permeates ever more areas of the business world: antitrust law is now a deciding factor when it comes to business models and success stories. The three key terms here are damages claims, Internet distribution and corporate governance.
Food concerns and retailers go up against the sugar cartel
Current events in the market indicate a strong future increase in damages claims. In the case of the sugar cartel alone, around 100 companies (including candy manufacturer Vivil and giants such as Nestlé) have requested access to records from the Federal Cartel Office (FCO) in order to sue for damages.
Meanwhile, Deutsche Bahn and others are demanding the record sum of €3 billion in damages from the air freight cartel. These cases will inspire imitators. For lawyers with a background in litigation, a huge field of opportunity is opening up here and turning whole practices upside down. Competition economists are also playing an increasingly important role, since damages must be estimated before a suit is brought.
Online retailers win support
A ruling by the Düsseldorf Higher Regional Court (Oberlandesgericht) last year raises another major issue for antitrust lawyers: the Internet revolution. Online retailer Reuter sued the bathroom fixtures producer Dornbracht for damages and won because Dornbracht’s distribution system favored stationary retail; this was the first decision of its kind. The FCO and the European Commission have also taken this issue on board, with the new competition commissioner Margrethe Vestager launching an investigation into the e-commerce sector in spring.
More and more specialist practices in antitrust
The current boom in antitrust law has encouraged the formation of new boutiques. Last year two former Latham lawyers left to found E&Z Eickstädt & Zühlke. Shortly afterwards an experienced counsel left Cleary Gottlieb Steen & Hamilton and set up Heinz & Zagrosek with another former Cleary lawyer.
Boutiques are well placed to handle damages claims, because large firms are often automatically positioned on the defense side due to their activity in cartel cases. Practices such as Buntscheck or SGP SchneiderGeiwitz (formerly PF&P) have made a name for themselves representing plaintiffs. But if the case is profitable enough and there is no conflict of interest, large firms will get involved too: Linklaters is representing Nestlé against the sugar cartel and Gleiss Lutz is suing the cooling compressor cartel for BSH.
Managers' liability brings its own concerns
Rising demands on corporate governance are also having an impact on antitrust lawyers. Because business leaders are increasingly being held liable for development errors, they often engage their own separate representatives for antitrust proceedings. Whereas the average cartel case used to occupy one or two firms, today there are usually half a dozen. Strong players in this area are Aulinger, Hermanns Wagner Brück and Bergmann.
The following entries deal with firms that have very different focuses and interfaces for their antitrust advice. Antitrust law overlaps substantially with ?distribution, ?state aid, ?public procurement and ?compliance. Those chapters also contain relevant information about antitrust specialists, as do the chapters on ?media, ?telecoms, ?pharmaceuticals and healthcare and ?energy.
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