Global Class Actions

Reflecting on the 2024 antitrust and competition litigation landscape in Germany, several significant developments have emerged, particularly regarding digital markets and procedural aspects of bringing mass claims.

•   A key regulatory milestone was the further designations of major technology companies as dominant cross-market players under German competition law provisions (Section 19a Act Against Restraint of Competition) that subject such firms to stricter oversight — reinforcing regulators’ focus on curbing potential anti-competitive conduct in the digital sector. Additionally, in a landmark ruling, Germany’s highest court upheld this designation for a major online platform, confirming the legitimacy of stricter competition rules for digital gatekeepers. 

•   This development is mirrored in the private enforcement space: companies in the digital space are drawing more and more attention for often mass damages claims.

•   In private enforcement of competition law, courts overall have been showing an even greater willingness to support damages claims arising from cartel behavior and abuse of dominance. A major ruling in the mass cartel damages case of the Trucks cartel reinforced this trend by lowering the evidentiary burden on claimants and expanding judicial discretion in assessing damages under German procedural law

•   Additionally, the European Court of Justice (ECJ) issued guidance on statutes of limitations and jurisdiction for damages claims, further clarifying the legal landscape for private enforcement across EU member states. 

•   On procedural matters, a crucial ruling of the ECJ clarified the legal framework for bundling claims in competition litigation. This decision provided much-needed guidance on the admissibility of bundling claims — traditional class actions do not exist in Germany, making it easier for businesses and consumers to collectively pursue damages from anti-competitive behavior.

Looking ahead, several trends are likely to shape the antitrust and competition mass litigation landscape in 2025 and beyond: Competition enforcement in Germany is expected to focus heavily on digital markets and artificial intelligence. Companies should take proactive measures to mitigate risks and ensure compliance.

Regulators have signaled increasing scrutiny of AI-driven competition concerns, particularly regarding how AI-powered platforms might reinforce dominant market positions or facilitate collusive behavior through algorithmic pricing. The growing use of AI in business practices could lead to new enforcement actions against perceived anti-competitive practices — and will then in equal measure attract civil claims, often in a mass claims scenario.

At the same time, private enforcement of competition law is becoming more accessible, following key court rulings clarifying statutes of limitations and jurisdiction in cartel damages cases. These developments are likely to encourage more businesses and consumers to pursue claims for damages resulting from anti-competitive conduct.

Companies dealing with charges of anti-competitive behavior should therefore follow an extensive defense strategy encompassing both the engagement with authorities and defense against private claims. 

Although we have seen a continued increase in collective actions being initiated under the new Act on collective damages claims (referred to as the WAMCA), since this entered into force on 1 January 2020, and which allows claims for monetary damages relating to events that took place on or after 15 November 2016, no major collective actions have been initiated in 2024 in the antitrust and competition area. 

We don’t expect particular new trends. As far as cartel matters are concerned, we expect claimants to continue using the assignment model (as opposed to initiating legal proceedings based on the WAMCA). The assignment model (where claimants assign their respective claims to a claim vehicle) is the most used mechanism for bundling claims in cartel damages litigation in the Netherlands. Multiple claims vehicles have been established since the publication of the 2014 EU cartel damages directive and its implementation in the Netherlands in 2017, and we don’t expect that to change. 

The only forum in the UK in which claims can be brought on an opt-out (as opposed to opt-in) basis is the Competition Appeal Tribunal (CAT), which can hear collective claims brought by class representatives seeking redress for infringements of competition law.  

The popularity of this regime for claimants continued to grow in 2024, with 11 new claims being issued, as it provides an attractive route for resolving consumer-facing issues where the claim can be framed as a competition law issue. The low bar to certification of claims has continued to reinforce the attractiveness of the regime.

However, the last year was a period in which the post-certification stages of these claims came before the Tribunal, and class representatives suffered a number of setbacks: 

a)   In December 2024, in Justin Le Patourel v BT Group, which was the first opt-out collective action to reach judgment, the class representative sought over £1 billion in damages for residential landline customers who had allegedly been charged excessive prices. The claim failed: although BT was found to hold a dominant position, its prices were found not to have been abusive.  

b)   In February 2025, the CAT approved a settlement of a £10 billion interchange claim brought against Mastercard on behalf of UK consumers. The settlement was for £200m, which the funders in the case challenged as being too low. It is expected that some funders may be disincentivized to support cases that can be settled at a fraction of the stated value of the claim.    

c)   Added to this, early 2025 brought the first two claims to be refused certification under the regime, which may also put the brake on the increasing popularity of competition class actions:

(a)   In Christine Riefa Class Representative Limited v Apple Inc. and Amazon.com, Inc., the CAT rejected an application for a collective proceedings order (CPO) on the basis that Ms. Riefa was not a suitable class representative. Ms. Riefa had been subjected to cross-examination as part of the process, which might cause some potential class representatives to think twice about putting themselves forward.  

(b)   In Professor Carolyn Roberts v Thames Water, Professor Roberts sought a CPO to enable her to act as a class representative and pursue UK water companies for under-reporting pollution incidents. The application was unsuccessful, but on a narrow point: the CAT concluded that legislation governing the water sector prevented the CAT from certifying the case.  

(c)   Although there have been suggestions that these setbacks, taken together, will have a dampening effect on the growth of the burgeoning competition litigation class actions in this jurisdiction, that view is too simplistic.  

The three claims that failed each had highly specific fact patterns and while there are lessons to be learned from each, there is no indication that the CAT is necessarily an inhospitable forum. Indeed, the CAT continues to facilitate the certification of class actions in the majority of cases. 

It seems likely that the last 12 months will be seen as a period in which the trend for class actions brought in the CAT continued as the regime matured, but also a year in which the CAT signaled that such claims are not a one-way bet. 

Competition litigation class actions rely heavily on litigation funding, and that industry has been in a state of flux since the Supreme Court's decision in the PACCAR case in July 2023, albeit funders have continued to fund claims in the period since. 

The government has indicated that it will consider the outcome of the Civil Justice Council's review of the litigation funding industry, due this summer, as a first step towards potential new legislation that may reverse the impact of PACCAR. There is a real prospect that with any new legislation, the litigation industry may find itself more heavily regulated than has been the case to date. There are also a number of appeals currently before the Court of Appeals that are challenging the multiples-based litigation funding returns that have become commonplace in the market since PACCAR.  

However, litigation funders have proved to be resilient. Our prediction is that even if regulatory and case law developments present further difficulties for litigation funding, we should anticipate that litigation funders will remain keen to invest in competition litigation class actions, including in respect of mass consumer claims, given that these large-scale cases, while complex and long-running, have the potential for significant returns.

The coming year may prove something of a bellwether for the competition class action regime as judgment is expected in a number of standalone (i.e., not based on prior infringement decisions from the Competition and Markets Authority (CMA) abuse of dominance cases, including:

a)  Three related cases brought by Justin Gutmann against a number of train operators relating to alleged overcharging by train companies said to have resulted in some passengers paying twice for parts of the journeys. Judgment on liability is pending following a trial in the summer of 2024.

b)   Dr Rachael Kent v Apple Inc. and Apple Distribution International Ltd relating to alleged overcharging by Apple for app purchases.

The trial hit the headlines in January, with judgment anticipated before the end of the year. 

The outcome of these cases, taken together with the failure of the Le Patourel claim, may prove something of a yardstick for how mass consumer class actions fare in the CAT.

A further related development is the imminent introduction of the Digital Markets Competition and Consumers Act 2024 (DMCC), which will give the CMA new direct enforcement powers, including issuing fines if businesses have breached key consumer protection laws. This development may give rise to further consumer-focused cases, by class representatives framing breaches of the DMCC as abuses of dominance in order to bring cases with the CAT’s opt-out collective actions regime. 

Litigation trends generally follow public enforcement priorities, with a short lag, whilst the private damages claims catch up with the various dawn raids and investigations carried out by the competition authorities. A further trend is that the authorities are once again turning their attention to the industrial manufacturing sector, which could indicate that there are follow-on competition litigation cases to come. 

We recommend that clients keep an active eye on developments in this sphere, with a view both to considering whether they could benefit from investigations into and potential claims against companies in their supply chain, and to take proactive steps to prepare for any claims which may impact their industry.

If you are interested in these developments or think that they may have an impact on your business, our Competition Litigation team is available to provide more information. 

Consistent with recent years, antitrust enforcement and class action litigation were vigorous in 2024. Plaintiffs continued to file antitrust cases directed at major sectors of the economy, including housing, food, pharmaceuticals, healthcare services, higher education, and labor. Some of these class actions advance fairly novel theories of antitrust liability, including, most notably, claims involving information sharing and so-called algorithmic pricing, whether in the form of price recommendations generated by algorithms fed with the information (RealPage), establishing reimbursement rates based on both public and non-public information (Multiplan), and identifying individual variances from average prices compiled from the shared information (Agri Stats). These cases seek to change the way courts analyze information exchange claims generally and to recognize that price-fixing can occur regardless of whether it is outsourced to a third party or an algorithm. The reaction from courts has been mixed so far, with some cases dismissed entirely at the pleadings stage, some having certain claims trimmed, while many others have moved into the discovery and merits stages.   

In addition to these novel theories, class action plaintiffs continued to press more traditional antitrust claims in 2024, including supply-reduction theories in the frozen potato space, price-fixing theories associated with the use of industry benchmarking services in the PVC pipe and conduit space, and pay-for-delay theories where courts have been focused on class-related issues. 2024 also saw resolutions of important antitrust class actions. A prime example is the October 2023 trial win and subsequent March 2024 settlement of the class action against the National Association of Realtors (NAR) and major brokerage firms. NAR ultimately entered a settlement on March 15, 2024, agreeing to pay $418 million and institute practice changes that shift the way home purchasing has functioned for years. In addition to the NAR settlement, 2024 saw other long-standing antitrust class actions settle, including the largest antitrust class action settlement in the healthcare space, with the Blue Cross Blue Shield Provider settlement totaling $2.8 billion. The NCAA also settled the longstanding class action litigation it was involved in related to name, image, and likeness rights for over $2.7 billion. In summary, it was an eventful year for class action litigation for both developing and already-developed areas of antitrust law.

We expect 2025 to be another active year for antitrust class actions. Beyond the holdover cases from 2024 (or earlier), class action plaintiffs have filed many new cases in the first several months of 2025. Some of those cases also press novel antitrust theories consistent with what we saw in 2024. For example, in February 2025, a putative class of California convenience stores brought Robinson-Patman Act (RPA) claims against PepsiCo, Inc., alleging discriminatory pricing on snack food items. The lawsuit follows a newly revived government interested in enforcing the RPA and may raise challenging questions about class certification because plaintiffs must show individualized harm for each member of the putative class. In early March 2025, classes of resident pharmacists sued the American Society of Health-Systems Pharmacists and leading hospital systems that offer pharmacy residencies, alleging that the long-standing system used to match pharmacy school graduates with residencies violates the antitrust laws.

The change in administration will also undoubtedly impact federal antitrust enforcement, which in turn is likely to impact class action litigation trends because the two operate cyclically. Where there is a government-led antitrust enforcement action, there is almost surely an accompanying private case, most often styled as a class action. In recent years, we have seen that trend work in the opposite direction as well, where the class action plaintiffs’ bar is leading the charge in a particular area, and the government enforcers follow on with their own case.  

The second Trump administration has not outlined clear antitrust enforcement goals, and the statements so far from the administration have been generic commitments to continue vigorous enforcement with a focus on tech-related issues. The only new and notable area that the second Trump administration identified for potential enforcement relates to potential “collusion or unlawful coordination on DEI metrics” in labor markets. See FTC Memorandum, Directive Regarding Labor Markets Task Force. Enforcement actions targeted at this type of conduct could lead to a swath of class actions consistent with what happened when the first criminal enforcement actions were brought in relation to the naked no-poach and wage-fixing agreements during the first Trump administration. Should the second Trump administration ultimately prove to be laxer on antitrust enforcement than the Biden administration, companies should not assume their antitrust litigation risk is substantially lessened. During times of less aggressive federal enforcement, we have historically observed an uptick in both private class actions and state-led antitrust enforcement efforts.   

Companies should pay close attention to the resolution of pending antitrust cases, particularly those with claims related to the exchange of information and/or the use of algorithms. Additionally, we expect the antitrust goals of the second Trump administration to be clearer once the relevant nominees are fully confirmed and installed into their respective agencies. That process should be complete by mid-2025 at the latest. Tracking those goals will also identify where companies should be focused in terms of potential antitrust liability, both from federal enforcement actions and class action litigation.