Advancing market fairness: Expert views on trends in antitrust litigation

Antitrust litigation is evolving rapidly, driven by legal, economic and political changes worldwide. In a recent webcast, Burford’s Andrew Farthing was joined by antitrust litigation experts Rob Addy (Bartlit Beck), Bill Isaacson (Paul Weiss) and Ryan Phair (Paul Hastings). The panel covered significant antitrust cases, evolving litigation trends, predictions for enforcement and practical advice for businesses navigating antitrust risks. Below are some of the key takeaways from the webcast.

The evolving landscape of US antitrust litigation

Recent high-profile cases and verdicts such as those against Google, the National Association of Realtors and the NFL highlight the profound influence antitrust litigation can have on industries and consumers. These cases have the potential to reshape how Americans buy and sell real estate or access information. However, these headline-grabbing wins are tempered by recent losses for the Department of Justice in other antitrust cases, underscoring the complex and unpredictable nature of such litigation.

Strategic considerations such as venue and judge selection have become increasingly critical in navigating antitrust disputes. The rise of litigation analytics has equipped lawyers with data-driven tools to assess factors like motion dismissal rates under specific judges, allowing for more informed filing and defense strategies.  At the same time, the growing politicization of judicial appointments is shaping decisions on issues like ESG and M&A.

Role of expert evidence

While economic and statistical analysis remains central to antitrust cases, qualitative evidence is gaining prominence, particularly in monopolization disputes. Experts are increasingly adopting qualitative approaches to market definition, market power and competitive effects, as jurors find it more relatable and persuasive. Emerging technologies including AI, language models and data mining promise to make evidence analysis more efficient and cost-effective as they continue to develop. Despite these advancements, the core of antitrust enforcement remains rooted in robust data analysis.

Rise in direct actions and opt-outs

Direct actions and opt-outs are gaining traction as alternatives to class actions as they offer plaintiffs significant advantages:

1. Control: Plaintiffs can choose their own counsel, make independent settlement decisions and tailor strategies to their specific circumstances.
2.  ROI: Individual opt-out claims can recover significantly greater value for the company and its shareholders than the company would have obtained as a class member if the case is successful.
3. Flexibility: Opt-outs can observe class proceedings, learning from successes or setbacks to time their involvement strategically.

Our research indicates that GCs often see opting out as the best strategy to maintain control and maximize returns. But this comes with challenges. Timing is critical—entering too early can lead to unnecessary expenses, while delaying could weaken leverage. Financial resources are also a factor, as the costs of expert testimony, discovery and trial preparation can be significant, making class participation the more practical choice for some. Indeed, 61% of companies stay in the class due to the high cost of pursuing individual claims. Plus, publicly suing a key business partner could strain future collaborations.

Adding to this complexity are most-favored-nation (MFN) clauses and common benefit orders. MFNs ensure uniform settlement terms but can limit negotiation flexibility, while common benefit orders require opt-outs to contribute to the class’s costs. While these measures aim to create fairness, they sometimes discourage plaintiffs from pursuing independent actions.

Growth of information-sharing cases

Information-sharing cases have become a growing focus in antitrust law, with private plaintiffs increasingly taking the lead and the DOJ often stepping in at a later stage. These cases are appealing to the plaintiff bar because they are easier for juries to understand than monopolization cases. The DOJ's Civil Conduct Task Force has been a key player in investigating such practices, though its future is uncertain under the new administration. Furthermore, the DOJ has expanded its focus beyond healthcare to sectors like agriculture and apartment rentals, addressing both traditional and algorithmic information-sharing. As these cases continue to rise, they are reshaping the landscape of antitrust enforcement.

How legal finance can help

Legal finance can support law firms and clients in antitrust litigation, particularly when opting out of class actions.  Legal finance addresses budget constraints for high-value claims, providing companies with the resources and flexibility needed to manage their cases effectively.  Notably, 52% of GCs who have not yet used legal finance say its availability would positively impact their decision to opt out.

Burford helps businesses by offsetting the risks and expenses of pursuing antitrust matters, advancing portions of pending claims for immediate cash and developing antitrust portfolios. With deep experience in reviewing antitrust claims and using proprietary data, Burford supports companies to assess claim value and model case attributes, ultimately adding significant value and enabling successful outcomes.