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5 Trends to Watch in 2023: Antitrust & Competition

  1. Fewer cases, but greater impact – Although the number of antitrust cases brought in courts across the nation has decreased, the matters filed have higher values and span more industries than in the past.

  2. Federal Trade Commission broadens unfair competition parameters and the DOJ is more active in criminal enforcement – FTC enforcement actions are based on a wider interpretation of what constitutes unfair competition filling in some of the gaps in traditional antitrust law that have developed over the years in case law. In addition, both the FTC and Department of Justice are bringing more cases based on long-dormant theories of antitrust law, such as vertical anticompetitive effects, and in many instances irrespective of any assurance of success in court. And the DOJ is more active than in the past in bringing, and trying, criminal cases. This trend is expected to continue for at least the next two years. The pipeline of new investigations that commenced under new leadership at the FTC and DOJ is now being revealed in new case filings.

  3. More class actions including uninjured parties – A 2021 pro-plaintiff decision by the U.S. Ninth Circuit Court of Appeals may result in the certification of class actions that include uninjured parties.

  4. Increased EU and UK antitrust class actions expected – Both jurisdictions are in the process of enacting revised substantive and procedural laws that enable the bringing of mass and collective actions. The relatively new laws have created a process that is similar to how the U.S. treats class actions, and U.S. plaintiffs firms are opening offices in the UK and EU in anticipation of a possible flood of new litigation.

  5. Antitrust class actions expand into new industries – Recent cases include the real estate and the agriculture industries.

About the Authors

Greenberg Traurig's Antitrust Litigation & Competition Regulation Practice supports clients on the broad array of antitrust issues, drawing on the capabilities of attorneys in the United States, Europe, Latin America, and Asia. The experienced attorneys advise on the antitrust aspects of mergers, acquisitions and joint ventures, including handling complex multi-jurisdictional merger control filings. They also work with clients to craft antitrust compliance programs, oversee internal investigations, represent clients in government antitrust investigations, and are trial-ready for litigation when necessary. The attorneys advise as well on complementary areas of trade regulation, consumer protection, sales and distribution practices, procurement, state aid and utility-specific regulation.