The fall and rise of the antitrust class action

Speaker: Professor Spencer Weber Waller, Loyola University of Chicago
Commentator: Anna Morfey, Partner, Hausfeld & Co LLP
Chair: Professor Ioannis Lianos, UCL Laws
Organised by the Centre for Law, Economics & Society

About the talk

Antitrust class actions have narrowed significantly in the United States in recent years but still remain robust compared to aggregate litigation in the rest of the world. While the Supreme Court continues to narrow the doorway to class actions, the rest of the world is increasingly interested in creating new mechanisms for aggregate litigation to better support effective private damage litigation in competition cases, and in particular the large number of small claims cases that led to the class action boom in the United States in the first place. The challenge for the rest of the world will be to fashion new remedies consistent with the history, culture, substantive law, and procedural rules of their legal traditions rather than either adopt or reject the system that has evolved in the United States.

The lecture will provide an overview of the increasingly stringent requirements for antitrust class actions in the United States and a representative survey of the nascent movement toward collective actions abroad where competition cases have been at the forefront of the debate. The lecture will cover the standards for class certification under Rule 23 and recent Supreme Court cases tightening those standards. It will then analyse a separate line of Supreme Court cases which effectively eliminates class actions altogether when parties have entered into a contract requiring arbitration rather than litigation and further requires individual rather than collective arbitration proceedings.

We will continue with a survey of recent developments in the opposite direction outside the United States. This section examines ongoing changes in the EU, UK, other EU Member States, Mexico, and Canada to empower consumers and business with small claims in competition cases by creating collection action mechanisms of different types. We will also briefly discuss the decision of the EU to simply prohibit the type of forced arbitration clauses that the U.S. Supreme actively encourages. We will analyse the critical aspect of whether foreign class actions will thrive or whither on the vine – the need for an opt-out mechanism rather than the opt-in mechanism favoured in most jurisdictions outside the U.S. It is ironic that the rest of the world is struggling to figure out how best to empower plaintiffs to bring appropriate class action type proceedings while the U.S. Supreme Court remains principally concerned with how to restrain or eliminate the very same type of action.

About the speaker

Spencer Weber Waller is professor at the School of Law of Loyola University of Chicago. He served as a staff law clerk for the U.S. Court of Appeals for the Seventh Circuit. He also worked for the U.S. Department of Justice, first as a trial attorney in the Foreign Commerce Section of the Antitrust Division and later as a special attorney in the Chicago Strike Force of the Criminal Division. He then practiced at the Chicago firm of Freeborn & Peters. He was a full-time faculty member at Brooklyn Law School for ten years until joining Loyola in 2000. Professor Waller also serves as the Faculty Director of the Institute for Consumer Antitrust Studies.

About the commentator

Anna Morfey is a Partner and qualified solicitor-advocate at Hausfeld in London, with a practice encompassing all aspects of contentious EU and competition law.  She has extensive litigation experience in the High Court, Competition Appeal Tribunal, Court of Appeal and Supreme Court and, at European level, before the General Court and Court of Justice.

Anna has represented clients from a great variety of sectors, including financial services, defence, consumer products, manufacturing and hi-tech, and has acquired a wealth of experience in European and domestic antitrust investigations, follow-on and stand-alone damages claims, and merger transactions.

Recent cases in which Anna has acted include representing the immunity applicant in the follow-on damages claims brought against members of the Carbon and Graphite cartel, and acting for a defendant in National Grid’s claim against the Gas Insulated Switchgear cartel. Anna has also advised clients in the context of numerous other cartel investigations and follow-on claims, including Elevators and Escalators, Marine Hoses, Industrial Bags, Libor, Credit Default Swaps and FX.

Anna has published widely on her areas of expertise both in the US and Europe. She has also worked on the sixth edition of EU Antitrust Procedure (Kerse and Khan) published by Sweet and Maxwell.

Before moving to London, Anna worked in Brussels for three years and has also spent time on secondment to the in-house competition team of Barclays Bank plc and the UK Office of Fair Trading (now Competition and Markets Authority). Having trained at Clifford Chance, Anna was a Senior Associate at Freshfields Bruckhaus Deringer LLP in London prior to joining Hausfeld as a Partner. She is proficient in French.