Competition litigation insights: Legal and economic perspectives on certification and beyond

Burford recently hosted an interactive roundtable for senior competition litigators and economists in which we explored the evolving dynamics of competition litigation, focusing on the relationship between legal and economic analysis in obtaining a Collective Proceedings Order (“CPO”) from the Tribunal for opt-out competition cases.

I had the privilege of leading a distinguished panel featuring Julian Gregory, a competition barrister from Monckton Chambers, and Pinar Bagci, a leading economist at The Brattle Group, both with deep expertise in claims before the English Competition Appeal Tribunal. Together, they shared invaluable insights into their work and the challenges of tackling complex cases, particularly in relation to obtaining a CPO.

Legal and economic analysis in certification

The discussion underscored the complementary roles of legal and economic experts during the CPO process. The Prosys test—requiring an economic methodology for estimating loss and obtaining supporting data—places significant weight on economic evidence. Yet the legal framework remains critical, particularly in defining counterfactuals, causation and pass-on assumptions.

The panel discussed the balance between legal and economic input that shifts depending on whether the claim is brought on a stand-alone or follow-on basis. In follow-on damages cases, the economic theory of harm often builds extensively on regulatory decisions, with the legal framework reinforcing the principle that cartels are inherently anticompetitive. By contrast, in stand-alone cases, more substantive legal assessment is required to define the anticompetitive conduct, articulate the theory of harm and develop (along with the economist) methodologies that establish causation between the conduct and resulting losses.

While the CAT’s attention may focus on the blueprint to trial, and the methodology needs to be compatible with economic theory, the methodology also needs to be appropriate given the legal framing of the infringement. Ultimately, legal and economic analysis needs to dovetail each other for the purposes of prepared aggregate damages methodology that offers a realistic blueprint to trial so as to meet the threshold for certification.

Challenges in forming legal theories of harm

A key question posed was whether traditional competition law concepts can adapt to novel cases. The response was encouraging: Concepts like self-preferencing demonstrate that competition law is capable of evolving to address the complexities of new digital markets. Ultimately, determining whether conduct is unlawful requires a holistic assessment of all the circumstances in each case as competition law concepts do not require infringements to be pigeon-holed.

Certification hearings: Costs and benefits

The group debated the value of CPO hearings. While certification imposes significant cost and effort, it ensures that claimants have thoroughly assessed potential risks, considered data availability, and developed a credible and robust approach to their claims which includes an expert’s methodology.

Striking the right balance is essential. Filing a "wishlist" of data without outlining a feasible methodology—or at least presenting reasonable alternative assumptions about data availability—poses significant risks.

The CAT expects claimants to approach substantial claims with the gravity they demand, recognizing the burdens placed on defendants and the Tribunal itself. To meet the CAT's requirements, claimants need to demonstrate that they have carefully evaluated risks that could undermine their claims’ viability. Even when data availability is uncertain, it is critical to show that an acceptable methodology remains plausible under a range of alternative scenarios. This not only underscores that the claim has been filed responsibly but also reflects a thorough and diligent preparation process.

The CAT is also likely to view claimants more favourably when they have actively sought information from defendants regarding available data, especially if those requests are met with non-cooperation. Such efforts highlight the claimant's commitment to a fair and reasoned approach, strengthening the claim’s credibility.

The breakfast event concluded with coffee, cinnamon buns and reflections on the proportionality of certification efforts. As competition law cases grow in scope and complexity, collaboration between legal and economic experts will remain critical in crafting adequate certification blueprints.