From no-poach to sophisticated remedies: the latest theories of harm in antitrust and merger control

As private damages claims continue to proliferate across the EEA, Member States’ national courts have been turning to the European Court of Justice (ECJ) for guidance on the complex question of where the boundary between the applicability of EU or national law should be drawn. Practical points raised include who has standing to sue and to be sued, the notion of causation, the binding effect of antitrust infringement decisions adopted by the European Commission and national competition authorities, and the quantification of damages, all of which may play a decisive role in the outcome of claims.

The panel will explore the recent guidance from the ECJ on these crucial issues; discuss how this may impact the fundamental level playing field objective in antitrust private damages cases, where the scope of the infringement and the number of parties involved facilitate forum shopping by claimants; and ultimately, how these considerations inform a company’s litigation strategy.