“Those who say it can not be done, should not interrupt those doing it”
- Chinese Proverb
We are delighted to present Issue 10 of the TL4 Competition magazine, our third edition of 2025.
This edition finds a featured article from Mayer Brown which is an extended piece titled: Commission Cartel Decision Delivers Important Takeaway: Minority Shareholdings can Trigger Significant Competition Law Risks.
Thank you to all our contributors for providing insightful articles for the issue. We are delighted to be heading into a busy Q4 for the competition community, and we look forward to welcoming you at some of the exciting initiatives we have lined up.
ThoughtLeaders4 Competition Team
Peter Miles Head of Event Production & Community Director 020 3481 8843
email Peter
Alexander Edgal Conference Producer Associate 020 3998 9752
email Alexander
Chris Leese Founder/Chief Commercial Officer 020 7101 4151
email Chris
Paul Barford Founder/ Managing Director 0203 398 8510
email Paul
Helen Berwick Commercial Director Competition 0203 433 2281
email Helen
Maddi Briggs Strategic Partnership Senior Manager 020 3398 8545
email Maddi
Danushka De Alwis Founder/Chief Operating Officer 020 7101 4191
email Danushka
CONTRIBUTORS
Oliver Latham, Charles River Associates
Aastha Mantri, Economic Insight
Christian Horstkotte, Mayer Brown
Nathalie Jalabert-Doury, Mayer Brown
Daniel Vowden, Mayer Brown
Ora Nwabueze, Mayer Brown
Sarah Wilks, Mayer Brown
Chanelle Cattin, Mishcon de Reya
Sophie Hill, Mishcon de Reya
Rob Heffernan, Talli
Claire Herbert, Gateley Legal
Ian Li, Austen Hays
Kasey Cummings, Gateley Legal
Emma Hogwood, Milbank
Vasiliki Katsarou, Milbank
Chris Cochran, Blackhawk Network
David Parker, BRG
Camelia O’Brien, AlixPartners
Francesco Bilotta, AlixPartners
Sarina Williams, Linklaters
Rachel Pearson, Linklaters
Rosaria Maria Raspanti, Pavia e Ansaldo Studio Legale
Jade Tess Weiner, Angeion Group
Tets Ishikawa,
Upcoming Events
Competition Law & Litigation Summer School
1 - 2 September 2025 | King's College, Cambridge
The UK Digital Markets Competition Regulation Forum 2025 - 3rd Annual
23 September | One Whitehall Place
The EU Competition Law Public Enforcement Summit 2025
30 September 2025 | Le Plaza Hotel, Brussels
The Merger Control Forum 2025 - 2nd Annual
4 November 2025 | One Whitehall Place
The Nordic Competition Law Summit 2025
26 - 27 November 2025 | Crowne Plaza Hotel, Copenhagen, Denmark
The Competition Law & Artificial Intelligence Summit - 2nd Annual
2 December 2025 | Central London
Irish Competition Law Forum
12 February 2026 | Dublin, Ireland
For Partnership enquiries please contact Helen on +44 (0) 20 3433 2281 or email helen@thoughtleaders4.com
THE GLOBAL MERGER CONTROL FORUM 2025
On 15th May, we headed to Brussels for The Global Merger Control Forum 2025. The end of last year saw significant political shifts in the EU, US and UK, where regulatory policies impacting global mergers are likely to undergo significant changes. This comprehensive yet focused one day event provided timely insights into how these changes are reshaping global merger control and how competition practitioners are responding to them.
We heard a range of views, including from the European Commission’s view on the state of play in merger control with Fernando Castillo de la Torre. The rest of the day covered topical panels that left our attendees much more equipped to handle critical global trends and regulatory challenges.
Thank you to our Event Partners AlixPartners, BRG, Charles River Associates, Cornerstone Research, Forvis Mazars, Frontier Economics, and RBB Economics.
THE COMPETITION COLLECTIVE ACTIONS FORUM 2025
We returned on 5th June for our third annual Competition Collective Actions Forum in London, the only UK event dedicated to collective competition litigation.
It was great to bring everyone together to address nuances in bringing and defending class actions and recent case developments around trial, settlement and distribution,
carriage disputes, funding and the chance to discuss what the early judgements mean for the UK’s opt-out collective actions regime.
Thank you to our Event Partners Epiq, AlixPartners, Compass Lexecon, Cornerstone Research, Economic Insight, Frontier Economics, and Verita
THE UK COMPETITION LAW SUMMIT 2025
On 19th June, we returned for the second year with The UK Competition Law Summit, where implementation of the CMA’s new Digital Market and Consumer Protection powers were forefront of the discussions during the day. We welcomed regulators, in-house counsel, economists and private practice to the gathering to share their experiences, highlight
key areas of change, and deliver guidance on issues impacting the UK competition landscape.
Thank you to our Event Partners Charles River Associates, Forvis Mazars, Frontier Economics, KLDiscovery, Linklaters, RBB Economics, and Verita.
COMPETITION LAW & LITIGATION SUMMER SCHOOL 2025
Our inaugural Competition Summer School took place 1st – 2nd September at the historic Cambridge grounds of King’s College. This week was specifically designed to offer UK Competition Law and Litigation practitioners a comprehensive, yet concise, exploration into the latest UK, EU and Global developments impacting their practice. Purpose built for newly
qualified private practitioners and corporate in-house, this was a unique opportunity to broaden expertise and refine skills.
Thank you to our Event Partner BRG for their support.
MINORITY SHAREHOLDINGS CAN TRIGGER
FEATURED ARTICLE
Introduction
A decision of the European Commission (“Commission”) published in July 2025 (“Decision”) imposing a penalty of EUR 329m on online food delivery companies Delivery Hero and Glovo (the “Parties”) has sent an important reminder to businesses who have minority shareholdings in competitors: the risk of falling foul of competition rules prohibiting restrictive behaviour is real and can result in significant fines.
Indeed the Commission has for many years recognised that the prohibition on anticompetitive agreements “may not be suitable to deal effectively with anticompetitive minority shareholdings” although it insists that this route is still possible, particularly when merger rules are difficult to apply.
To date, the Commission and national competition authorities (“NCAs”) across Europe have faced difficulties when trying to characterise behaviour between a minority shareholder and the company in which it holds a stake as anticompetitive. In the context of a corporate transaction, acquiring a minority shareholding does not seem to fit neatly within the legal framework requiring an agreement or concerted practice having the object or effect of restricting competition.
For joint ventures (“JVs”), the Commission’s Horizonal Guidelines note that “in general”, it will not apply the prohibition on anticompetitive agreements / concerted practices between parent companies and their JV at least to some aspects of their relationships (para. 12).
In terms of merger control, since the acquisition of a minority shareholding does not normally entail the acquisition of “control” or “decisive influence” (with the clue being in the name –minority and so no controlling rights), the Commission cannot normally investigate or intervene against it on the basis of the EU Merger Regulation which only applies to “concentrations”: in a minority shareholding context, the two parties remain independent.
Minority shareholdings could therefore be seen as possibly falling through the crack of EU competition rules. The Decision makes clear that this is not the case, and there is no safe gap to take advantage of: if there is no acquisition of control for EU merger purposes, the risk of infringing competition behavioural rules remains. In fact, arguably the Decision makes this risk particularly high, given the possibilities under the relevant corporate laws to receive information from the target or even influence its business strategy through the relevant corporate bodies which might then infringe competition rules on information exchange. For businesses with minority stakes in competitors, appropriate safeguards must therefore be put in place.
The Decision is particularly tricky for minority shareholders to navigate as it makes the line between acceptable and restrictive behaviour in the decisions and discussions that take place on an everyday basis by shareholders unclear. A shareholder necessarily
Authored by: Christian Horstkotte (Partner), Nathalie Jalabert-Doury (Partner), Daniel Vowden (Partner), Ora Nwabueze (Knowledge Counsel), Sarah Wilks (Knowledge Counsel) - Mayer Brown
has an influence even in minority cases. Ordinarily it will intuitively avoid damaging its investment by for example poaching key personnel / competing aggressively with its investment etc. However, it may not always be obvious when shareholders go too far and venture into illegally restricting competition. For example, the Decision notes in para.22 that the minority stake
“notably gave Delivery Hero the right to participate in Glovo’s shareholders’ meetings and in Glovo’s board”
– behaviour which is normally considered routine. Moreover, the Decision characterises the behaviour of the Parties not only as an infringement of competition rules, but as a serious one “by object” (para. 69). Businesses with minority shareholdings in competitors are therefore on notice of competition law risks, albeit with points of potential confusion outstanding over what is / is not allowed. The Commission has made clear that any shareholding below the level of control entails significant risks. For parties intending to coordinate closely, contrary to what might seem intuitive, a greater shareholding passing the threshold of control might, in some circumstances, be a more pragmatic route to achieving commercial objectives whilst reducing competition law risks than pursuing a minority shareholding.
and which could likely have been penalized without the shareholding, although much of the Commission’s emphasis is on how in this case, the shareholding facilitated the wrongdoing.
Delivery Hero first purchased a 15% non-controlling stake in Glovo in July 2018. This progressively increased until it finally acquired sole control of Glovo in 2022, with a 94% shareholding making Glovo its subsidiary. The Commission’s investigation centred on the period from July 2018 to July 2022 when Delivery Hero was increasing its shareholding in Glovo but according to para. 139 of the Commission’s Decision
“Glovo was an independent undertaking during the whole infringement period”.
Whilst the Commission emphasised that owning a stake in a competitor is not in and of itself illegal, in this case, Delivery Hero’s minority stake facilitated anticompetitive practices:
• No-Poach Agreement: at the outset, the parties only agreed limited reciprocal no-hire clauses which might well have been unproblematic and indeed quite routine for this type of transaction. However, these evolved over time to include wider nonsolicitation of each other’s employees and “this happened in a legal and economic context in which Delivery Hero and Glovo competed to attract talent which Glovo saw as scarce and in high demand” (para. 33).
• Exchange of Commercially Sensitive Information: the minority shareholding gave Delivery Hero a member on Glovo’s board, which, according to the Commission, provided access to sensitive information and ultimately allowed the two players to align their respective business strategies and “remain in their comfort zones with no incentives to improve the quality or prices of their services”
Misuse of minority shareholding
Due to the settlement reached between the Parties and the Commission in this case, the level of details on the facts as well as on the rationale of the Commission are less than in a fully contested investigation. The Decision nevertheless emphasises that the infringement in this case did not arise from Delivery Hero’s stake in Glovo per se, but the “misuse” of that stake to refrain from competing with each other. The Commission found and fined conduct which is clearly anticompetitive,
The full acquisition did not trigger EU merger control rules, but the Spanish Competition Authority reviewed it in late 2021 under national merger rules, clearing the transaction in early 2022.
Subsequently, but still in 2022, in a separate cartel investigation which included two dawn raids as well as various requests for information, the Commission found that the initial minority shareholding had created structural conditions which allowed for illegal collusion. In the words of Commissioner Ribera:
“The relationship created by a minority stake provided the two companies with a channel to coordinate their operations and strategies”.
In particular, Delivery Hero had the right to name one, and then two members of Glovo’s board. The discussions and documents from board meetings were routinely passed on to Delivery Hero’s management team, who thereby gained access to competitively sensitive information about Glovo, which the Commission found was used to reduce competition.
• Geographic Market Allocation: using the powers which came from its minority stake, the Commission found that Delivery Hero convinced Glovo to share markets in the EEA and divide national markets for online food delivery, removing overlaps and coordinating market entry across the EEA.
The Commission considered that these practices were individual standalone infringements, but “interlinked” and therefore treated them as all part of an agreement / concerted practice between the Parties, facilitated by the minority shareholding. In this sense it is notable that the information exchange and the no poach agreements worked in both directions between the Parties including not only the top management, but also other employees via different channels, with the board documents being only one of several routes employed.
Furthermore, the Commission characterised these behaviours as by object infringements, removing the need to look at their impact on competition as this was for the Commission, obvious from the conduct in question. This was taken into account in setting the fine as
“the proportion of the value of sales taken into account for such infringements is set at the higher end of the scale”.
(para.127). Whilst the Commission’s case law on information exchange and market allocation is well established, this was the first time that the Commission analysed labour market restrictions in the context of competition law. In line with its policy brief in this area, the object characterisation is not surprising, and indicates future enforcement in this area is likely to be hard hitting.
of the European Union) can be applied to transactions between competitors which were not subject to review under merger rules and have the object of sharing the market between competitors. There are however not many precedents and to the contrary, earlier decisions have shown the difficulties finding an infringement in a JV context. In 2007, the FCA had fined a full-function JV and one of its controlling parents for anticompetitive behaviour, arguing that the JV was autonomous vis à vis its parents companies and cartel rules therefore applied. The Paris Court of Appeal however overturned the FCA decision holding that on the facts, the JV was not sufficiently autonomous enough to enter into cartel like arrangements with its one of its parent shareholders. Whilst this French example concerned a fullfunction JV, this is different from the Commission’s Decision, but serves as a useful illustration of the difficulties of applying behavioural rules to these kinds of corporate structures, and how enforcement has been very limited;
Wider context –Commission takes a stand
The Decision stands out as an unusual example of a competition authority finding cartel-like behaviour in a minority shareholding context. Even though the Commission’s Horizontal Merger Guidelines flag the risk of minority shareholdings causing competition concerns, in practice in Europe, this kind of theory of harm is rarely evoked especially in the context of behavioural investigations:
• In France, in a recent case in the meat cutting sector, the French Competition Authority (“FCA”) was clear that the prohibition on anticompetitive agreements (Article 101 of the Treaty on the Functioning
• In the UK, the Competition and Markets Authority (“CMA”) can look at acquisitions of minority shareholdings on the basis of merger rules when considered to confer material influence, a less demanding standard than control. This is typically in cases where the shareholding is in the 15 – 25% bracket, with the lowest shareholding to date which has been found to confer material influence being 16%. Indeed, the CMA’s guidance states that acquisitions of less than 15% might be assessed but only when other factors indicate the ability to exercise material influence. So far, minority shareholdings have not triggered cartel investigations even though in principle, the CMA could legally do this. Arguably, the closest it has got to this kind of intervention was eight years ago when it fined two JV parents for breaking competition law by agreeing not to compete for territories and customers;
• In Germany, competition law provides for a possibility to intervene earlier on the basis of merger rules compared to other regimes and in particular irrespective of whether control is acquired. A recent case of June 2025 is a good example for this when the German Federal Cartel Office (“FCO”) concluded merger control proceedings concerning the acquisition of a non-controlling 10% shareholding by Lufthansa of airBaltic. This minority acquisition was notifiable in Germany as an acquisition of “significant competitive influence” (which is less than the acquisition of sole or joint control). The FCO emphasized that, though it cleared the concentration and also assessed market share increments, the two airlines remain separate legal entities and warned that they may not coordinate prices or conclude other direct anticompetitive agreements which may otherwise be investigated by the FCO as cartel agreements. This shows that the FCO is currently focusing on the risk of coordination associated with minority acquisitions, even if it has conducted a merger control review. Moreover, the fact that the FCO emphasizes in its press release that the clearance does not change the fact that they parties are competitors, and that behavioural competition rules remain fully applicable in the future is especially striking - the FCO has not included such “warnings” in press releases concerning minority shareholdings prior to the Decision and may indeed have been motivated by the Commission’s approach in this regard; and
• The 2023 U.S. Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) Merger Guidelines contemplate these very same risks connected with minority stakes with a notable emphasis on information exchange in such a context: “a partial acquisition can lessen competition by giving the acquiring firm access to non- public, competitively sensitive information from the target firm. Even absent any ability to influence the conduct of the target firm, access to competitively sensitive information can substantially lessen competition through other mechanism”. Furthermore, the US position outside of the merger review context suggests that the behavior of parties in minority investment scenarios is subject to antitrust scrutiny. For example, as recently as 1 August 2025 a U.S. federal court refused to dismiss Clayton Act Section 7 claims against a consortium minority private equity investors, concluding that the Plaintiffs, a coalition of U.S. States through their Attorneys General, had plausibly alleged that these previously passive investors had later used their minority stock holdings to collude to restrict the coal output of horizontal competitors they held overlapping ownership interests in. Of note, the U.S. DOJ and FTC had previously filed a Statement of Interest in the case, largely supporting the Plaintiffs’ legal position.
Against this backdrop, the Decision comes as a rare but clear reminder of the antitrust risks associated with minority shareholdings in competitors. Minority shareholdings which bring in board representation may require particular consideration, as they can often lead to increased information exchange risks given the topics typically discussed in a board level context.
Key takeaways –don’t let minority shareholdings become sources of anticompetitive behaviour
The Commission referred to the need for “appropriate antitrust safeguards” (para. 79) to be in place when a business has a minority shareholding in a competitor. Steps to consider include:
• Before acquiring a shareholding, however small in a competitor or potential competitor (including for workers), it is imperative to consider all relevant competition law risks and incorporate appropriate safeguards. Right from the start, the rationale for the investment should be clearly stated and proper guidelines set to assist with day-today compliance.
• Careful assessment should be given to the level of shareholding and resulting risk profile: larger shareholdings do not necessarily result in greater risk. Whilst the Decision makes clear that the Parties’ agreements and co-ordinated behaviour increased over time, with the increase of Delivery Hero’s stake, even with a small shareholding, if parties “substitute practical cooperation between them for the risks of competition” (para. 57), they risk breaching competition law. In so doing, the Commission has made clear that any shareholding below the level of control entails significant risks. If the parties intend to coordinate closely, a greater shareholding which passes the threshold of control might bring greater legal certainty.
• Particular care should be given to board representation. Minority shareholders must limit obtaining and using information about investments to what is required for monitoring its financial investment. Discussions about pricing intentions and future commercial strategies should be avoided. If such discussions
must take place on a board level, the representative of the competitor holding the minority must leave the room for that topic and other safeguards should be put in place to prevent anticompetitive information exchange. Director and fiduciary duties cannot be used to cover up or excuse illegal information sharing between two independent undertakings. Guidelines and trainings are also very relevant in this respect, extending to all staff (e.g. HR, legal, finance etc.) who might be involved in discussions with or about the integration of the minority investment.
• Whilst some cooperation might be allowed between a minority shareholder and the target business, the two entities must remain separate and make their own decisions. The Decision refers to “ties between staff at different levels and across functions of the two undertakings that went beyond what was required in view of the (then) existing financial investment” (para. 23). Layers of integration like this should normally be avoided.
The Decision focuses on the practical effects of a minority shareholding on the behaviour of competitors. In the light of this there is a risk that going forward, proper and appropriate probing by investors is closed down too quickly on the basis of competition law. A delicate balance needs to be found: whilst on the one hand, investors must be accurately informed about the companies in which they hold even minority stakes, on the other hand, they need to be mindful of the entailing risks and plan accordingly.
Authored by: Oliver Latham (Vice President) - Charles River Associates1
I am about to commit social suicide and admit that I have spent time painting plastic toy soldiers: Space Marines, Eldar, even Orks.
If you’ll bear with me I’ll explain the relevance of this for digital regulation, but, at the outset, I should say that I am not alone. Games Workshop, producer of the popular Warhammer and Warhammer 40k is perhaps the most successful British company of recent years. Its models are painted and played with by luminaries from Ed Sheeran to Henry Cavill2 and, if you’d invested at around £500 a share in 2016/7 you’d have made a >20x return, a much better call than Softbank’s investment in Arm, another British national champion, for example.
continuous revenue and profit growth for over a decade, gross margins of 69.4%, profit before tax of £203m (39% of revenue) and a return on capital employed of 176%.3
These returns reflect Games’ Workshop’s financial performance:
Why is Games Workshop so successful? To fix ideas, and to double down on the social suicide, Warhammer 40k is a tabletop wargame in which people assemble plastic models into armies and fight one-another according to rules designed by Games Workshop, rolling dice to determine whether a shot hits, whether a soldier is killed etc. The vibe is dystopian or “grimdark” and typified by the game’s tagline: “in the grim darkness of the far future there is only war”. The plastic models need to be bought (from Games Workshop), assembled, and painted (typically with paint bought by Games Workshop). The prices can be exorbitant: a squad of five Space Marines, around 230 grams of plastic, can be $50 or more.4 The cost of a 18ml tin of “Ultramarine Blue” paint is around $5, comparable in cost per milliliter to a bottle of fine wine.
1 Oliver Latham is a Vice President in CRA’s European Competition Practice. All views are his own.
My view is that Games Workshop’s enduring success results from the fact that it is a platform ecosystem and has been able to rely on interlocking network effects and a clever monetization model.
Plastic models on their own do not exhibit network effects, but the game of Warhammer 40k does: you can only play the game if there are other interested players, and once you and your friends are all interested, the game becomes more fun and more valuable. Once the models are linked to the game they are infused by this network effect and take on greater value. The approach of Games Workshop is to heavily subsidize this gaming aspect
(e.g. by opening physical stores where people can play for free, selling low-cost starter sets for people to try the game, and marketing the franchise through licensing agreements and so on).
The network effect is then monetized through the models and paints. Games Workshop designs its paints to be “interoperable” with its models, providing guidance on which ones to use and how, so that purchasing a model creates an ancillary revenue stream. This is illustrated in in Figure 1 below.
Workshop selling Ultramarine Blue paint you could have multiple options and so on.
There are potentially both positive and negative reasons for Games Workshop to behave in the way it did. The malign interpretation would be that Games Workshop recognizes that it will not be possible to fully monetize the network effect in gaming alone: ultimately the game is just a list of rules on a piece of paper. You can try and charge $50 for a nice hardback copy (and Games Workshop does), but the value from these rules is likely to spillover to the other components, especially as the rules can be shared online or through word of mouth. One could also tell a dynamic foreclosure story, supported by plenty of literature, whereby tight interoperability between paint, models, and game raises barriers to entry as any Warhammer rival will need to build all of the relevant components instead of just come up with a better set of rules.6
Why operate as a closed ecosystem instead of an open one?
Games Workshop has chosen to operate as a closed ecosystem: it is the sole supplier of all the components listed above. One could envisage a more “open” approach in which Games Workshop focused only on distributing the rules to its game and made these rules interoperable, allowing third parties to build models that were compatible with these rules. This is not hypothetical, there are other games that take this approach.5 Instead of a single canonical “Space Marine Intercessor” you could have a choice of different brands. Instead of only Games
The benign interpretation would be that Games Workshop recognizes that there are externalities between the different components of its offering. People enjoy playing 40k more if the models are high quality and look consistent with one another, the game is more fun if the different armies are balanced in their capabilities and no one type of model dominates the others, releasing new models in a synchronized way creates more buzz around the game drawing more people in.
Monetizing through the models and the paints while pushing the game at low cost allows the ecosystem
Gaming has an inherent network effect, but low ability to monetize.
Being the only manufacturer ofmodels “compatible” with the game transfers network effect from the game to the models where it can be monetized
Strong interoperability between models and paints creates an additional revenue stream
to grow to the benefit of all participants.
Again, there is plenty of literature on how platforms can internalize externalities to the benefit of users.7
What would platform regulation of Games Workshop look like?
The gist of platform regulation like the Digitals Market Act would be to encourage contestability and interoperability. One could envisage two main interventions:
i) requiring “interoperability” between the games and models (e.g. by allowing third parties to produce models “compatible” with playing Warhammer 40k); and
ii) allowing interoperability between the models and the paints (e.g. by releasing the specifications for each shade of colour, allowing third parties to produce their own versions, and requiring documentation for the models to provide information for multiple brands of compatible paint).
One could envisage a range of ancillary interventions: forbidding Games Workshop from self-preferencing its own models and paints over third parties, forbidding the exchange of data from the gaming business to the
5 Dungeons and Dragons would be an example of a more open business model.
6 The classic citation here would be Choi and Stefanadis. Choi, JP. Stefanadis, C. 2001. “Tying, investment and the dynamic leverage theory”, RAND Journal of Economics.
E.g. Etro, F. 2021. “Product selection in online marketplaces”, Journal of Economics & Management Strategy
Figure 1: illustration of the Warhammer 40k “ecosystem”
Figure 2: illustration of interoperability remedies
Interoperability remedy 1. Allow third party manufacturers to build models. Gaming network effect now seperated out
Models Gaming
Interoperability remedy
2. Release RGB codes and paint names so they can be developed by third parties.
modelmaking business and so on and so forth. This is illustrated in the Figure below.
I would expect there to be some immediate benefits from such an intervention. I am certain that model and paint prices would decrease and that Games Workshop’s profits would fall (indeed Games Workshop must perceive the closed model as more profitable as otherwise it wouldn’t have pursued it in the first place). There might be new varieties of model brought to market. I would expect to see more differentiation in the market for paints and accessories with some product differentiation and new, lower cost options.
The flip side of this is that I would expect the negative externalities I described above to manifest. I would expect a proliferation of lower cost and lower-quality models, and less investment in the brand and experience. It might not remain viable for Games Workshop to invest as much in bringing more users into the hobby. I find it hard to put a precise dollar figure on this, but I would expect some negative effects.
Implications for
Paints
regulation of ecosystems, and digital platforms.
No one is seriously proposing to regulate Games Workshop. The platforms that are to be regulated are bigger, play a more systemic role in the economy, and are ultimately, much harder to avoid doing business with.
However, the question of how to balance the “moat building effect” of closed ecosystems vs. the potential to internalize externalities and create consumer value is going to be key.
Relevant factors will include the extent of profits made by the platform, whether high profit margins are illustrative of value creation or exploitation of lock-in effects, the pace of ongoing investment and innovation, whether there are credible entrants or disruptive threats that could erode these margins if quality is degraded, the strength of externalities within the platform, and the risk of unintended consequences of interoperability to people who will not internalize these externalities in the same way. It will be important to confront these questions with data, while also recognizing that not everything of importance can be quantified and that the right answer will differ across applications.
The CMA’s guidelines on the new DMCC regime seem to sketch out such approach stating that conduct requirements will be subject to a proportionality criteria that will consider “both positive and negative” effects and will seek to “consider their magnitude in the round” “weighing effects…expected in the short term (e.g. upfront costs) against others expected to arise in the future e.g. benefits from innovation”.8
Returning to the world of Warhammer it will be fascinating to see how this strategy fares upon contact with the enemy and the conditions under which the CMA wields its chainsword.
The Irish Competition Law Forum
12 February 2026 | Dublin, Ireland
Bringing together competition law experts from Ireland, the UK and EU for in-depth analysis on highly relevant Irish competition law matters. For partnership enquiries, please contact
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MUCH ADO ABOUT NOTHING:
WILL THE CMA’S APPROACH TO THE DMCC ACT DELIVER TO ITS PROMISE?
The CMA has reached provisional decisions on its earliest investigations after assuming its new powers under the Digital Markets, Competition and Consumer (DMCC) Act into Google search and search advertising services as well as into Google’s and Apple’s mobile ecosystems.1 , 2 , 3
It had been awaiting these powers for a long time, running the Digital Markets Unit (DMU) in shadow form for nearly four years. The subjects of the early investigations were also expected, following detailed reviews into these entities under the markets regime.4, 5 As such, the outcome of these early investigations, that these entities have ‘strategic market status’ (SMS), is unremarkable.6
What is more interesting is what comes next. The CMA can impose conduct requirements (CRs) or procompetitive interventions (PCIs) on these entities to address any potential (or, in the case of these early
investigations, existing) concerns. As an indication of its early thinking, the CMA has set out a roadmap which sets out it plans to take a phased approach to considering any interventions. Specifically, it plans to prioritise:7
• Lighter-touch interventions (the category 1 CRs), such as requirements for third-party apps to be ranked in a “fair, objective and transparent manner” on Google’s app store, immediately after final SMS designation (from October 2025).
• More material interventions (the category 2 CRs or PCIs), such as requiring Google’s choice architecture in relation to app stores to support active user choice, in the first half of the designation period (by June 2026).
• Further interventions (the category 3 CRs or PCIs), such as requiring Google to allow users to set thirdparty apps as their defaults, in the second half of the designation period (if necessary).
1 ‘Strategic Market Status investigation into Google’s general search services: Proposed Decision.’ CMA (24 June 2025).
2 ‘Strategic Market Status investigation into Apple’s mobile platform: Proposed Decision.’ CMA (23 July 2025).
3 ‘Strategic Market Status investigation into Google’s mobile platform: Proposed Decision.’ CMA (23 July 2025).
It has delayed making a decision on other substantial requirements, such as requirements around offering consumers more open access to alternative app stores, subject to developments in other jurisdictions (notably, US and EU).
The balancing act
In principle, that the CMA has chosen to take a phased approach by prioritising interventions and it is giving itself time to carefully design interventions is positive. The CMA has a range of options to address its concerns and the choice between them should carefully
4 Please see a statement from Epic, which is interestingly one of the parties the CMA quotes as supporting its proposed conduct requirements, here: https://www.epicgames.com/ site/en-US/news/the-cma-s-roadmap-doesn-t-open-the-mobile-app-ecosystem-to-competition-in-the-uk.
5 Mobile ecosystems: Market study final report.’ CMA (10 June 2022).
6 The most interesting part has been the CMA’s approach to these investigations and, in particular, the evidence considered in ascertaining whether the entity has “substantial and entrenched” market power in the digital activity. The answer, at least from these early investigations, appears to be the same as that traditionally considered in the assessment of market power, but without a formal market definition exercise (using the concept of a hypothetical monopolist test). The concept of “entrenchment” appears to be based on: (i) how long the substantial market power has been sustained; and (ii) the extent to which any predictable developments in the future are likely to materially affect the market power in the next 5 years. (Interestingly, the CMA does not consider that ChatGPT, etc. are likely to materially affect Google’s substantial and entrenched market power in search).
7 ‘Strategic market status investigation into Google’s mobile platform: Roadmap of possible measures to improve competition in mobile ecosystems.’ CMA (23 July 2025).
balance various considerations:
(a) the scale and scope of the concern; (b) the extent to which each option can address the concern; (c) the time required to design and implement the change; (d) costs for businesses (both, the SMS firms as well as third-party businesses); (e) the time any change will take to have effect; etc.
By way of example, if the key outcome that the CMA is seeking is to allow consumers in Google’s mobile ecosystem open access to thirdparty apps, then it would consider the following options on its list:
• Option 1: Requiring that Google ranks apps in its app store in a fair, objective and transparent manner.
• Option 2: Requiring that Google’s choice architecture in relation to app stores supports active user choice.
• Option 3: Requiring that Google to remove user frictions when using alternative app stores (including being listed on Google app store).
Some of these might be quicker to implement but harder to monitor the outcomes (e.g. Option 1). Others might be easier to define but might take time to implement (e.g. Option 3). All of these would require a clear understanding of the outcome one is seeking (e.g. innovation which ultimately results in growth) and where that is likely to come from (e.g. Google and/or UK app developers).
Under the above framework, the CMA would carefully consider the costs and benefits associated with each option and choose (or, prioritise) the one that optimises across the range of considerations. Optimising only for the costs incurred by the SMS firm would mean the CMA would always choose the lightest-touch approach. Optimising only for other businesses could mean the CMA would always choose the most interventionist option. The best option would, therefore, strike a balance.
This is the approach used by other ex-ante regulators, and government, in developing public policy. Under the HM Treasury’s Green Book guidance, government departments are required to use benefit cost ratios (BCRs) to evaluate options for use of public funds. Notably, this is also similar to the CMA’s current approach to consideration of merger remedies. The CMA first considers the effectiveness of the remedy (including the impact on the competition concern, duration and timing of impact, practicality and associated risks) and then the associated costs, before choosing the least costly option.8
In the current context, it is not clear (at least not transparent from the roadmaps it has set out) how the CMA has landed on its proposed prioritisation of interventions. In the absence of a careful balancing act, the approach appears to pick “pace” over all else.9 It cannot, therefore, tell if its approach is likely to be effective or proportionate (or, any of the other Ps under its 4Ps framework).10
However, there are two problems with this approach. Firstly, the outcome that the CMA is seeking (to allow consumers in Google’s mobile ecosystem open access to third-party apps which, eventually, results in more competition so that consumers benefit from more choice, lower prices, innovation, etc.) requires a substantial change and, therefore, is unlikely to be so swift. By way of example, in a materially similar setting, it took over a decade for competitors to Internet Explorer (which Microsoft was accused to be bundling with Windows) to win a substantial share of customers.12 The same is reportedly true of ChatGPT’s ability to puncture Google’s position in search.13 Secondly, constantly changing the set of rules would not only be disruptive for the relevant SMS firm, but also other businesses that interact with it (and, therefore, also consumers).
8 ‘Merger remedies.’ CMA (13 December 2018).
Changing with the times
Perhaps the CMA’s approach reflects how it sees its role in digital markets under the DMCC Act – akin to an ex-ante regulator who can start off with small interventions and change course if need be – in which case, perhaps the prioritisation reflects a journey, from “quick fixes” to substantive changes. For instance, the CMA says that it will revisit its interventions in the second half of the designation period if “our interventions do not have the anticipated effect and we consider that we need to take further or different action”.11
Conclusion
The CMA is operating in a shifting landscape and will need to strike the right balance across a range of priorities. These include its renewed emphasis on promoting growth, as well as making meaningful use of its new powers under the DMCC Act.
In its early cases – particularly where it has concluded that UK app developers play a key role in innovation and growth –it is important that its approach to setting Conduct Requirements (CRs) reflects this balance. Opting for changes that are quick to implement, at the expense of more effective but longer-term solutions, may not always be appropriate. Nor is it prudent to rely on the possibility of revisiting issues later.
In navigating these trade-offs, the CMA could usefully draw on the experience of other regulators.
9 In the roadmap for Google’s mobile ecosystems, the CMA additionally notes that “In several cases they build on solutions that Google has already implemented in other countries, or has introduced on a voluntary basis in the UK but where there would be benefit for businesses and consumers in underpinning this with a specific CR.” Please see: ‘Strategic market status investigation into Google’s mobile platform: Roadmap of possible measures to improve competition in mobile ecosystems’ CMA (23 July 2025) paragraph 3.3.
11 ‘Strategic market status investigation into Google’s mobile platform: Roadmap of possible measures to improve competition in mobile ecosystems’ CMA (23 July 2025) paragraph 2.7.
12 For instance please see: https://www.firefox.com/en-GB/more/browser-history/.
13 ‘Strategic Market Status investigation into Google’s general search services: Proposed Decision.’ CMA (24 June 2025) paragraph 1.13.
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The only Forum dedicated to addressing the UK Digital Markets, Competition and Consumers Act and implications for SMS firms, Non-SMS Firms, Business Users and Consumers.
23 September 2025
One Whitehall Place
Complimentary attendance for In-House Counsel, Regulatory Authorities and Government Representatives For partnership enquiries, please contact Helen on +44 (0) 20 3433 2281 or email helen@thoughtleaders4.com
THE CMA’S PROPOSED REVISED GUIDANCE FOR LENIENCY AND “NO ACTION” IN CARTEL CASES
Introduction
The Competition and Markets Authority (“CMA”) recently consulted on its draft revised guidance on applications for leniency and “no action” in cartel cases (the “Draft Guidance”), marking the first significant review of leniency in twelve years.1 The review presents a welcome opportunity for the CMA to align its guidance with latest practice, enforcement trends, and significant developments not captured in the current guidelines published in 2013 (“Current Guidance”).
Through this process, the CMA seeks to ensure that “the incentives offered by the CMA’s leniency regime are in the right place to support the CMA’s enforcement objectives” including by encouraging applications and ensuring investigations are efficient and effective.2
NO ACTION
The key proposals at a glance
• updated definition of “cartel activity”;
• revised levels of protection afforded to “Type B” and “Type C” applicants;
• changes to admission requirements;
• creation of an online application process; and
• amendments to reflect additional legal and practice developments over the past 12 years.
Updated definition of “cartel activity”
The CMA proposes to retain the core definition of “cartel activity” as set out in the Current Guidance,3 but the CMA has helpfully incorporated more specific language relating to the fixing or coordination of purchase prices. The CMA also proposes to expand upon its non-exhaustive list of cartel activity for which leniency is likely to be available to reflect the CMA’s decisional practice, developments in case law and technology, and its enforcement priorities.4 For example, further detail is helpfully provided on the parameters of information exchange and its ability to constitute a “by object” infringement,5 including indirect information exchange through platform operators or the use of a shared algorithm. The updated list also includes no-poach arrangements
1 See https://connect.cma.gov.uk/41217/widgets/122407/documents/83275 and https://connect.cma.gov.uk/41217/widgets/122407/documents/83276.
3 Consultation Document, paragraph 3.3, which proposes to retain the core definition outlined in paragraph 2.2 of the Current Guidance.
4 See Paragraph 2.2-2.5 of the Draft Guidance.
5 See Lexon (UK Limited) v Competition and Markets Authority [2021] CAT 5.
Authored by: Chanelle Cattin (Managing Associate) & Sophie Hill (Trainee Solicitor) – Mishcon de Reya
and pay-for-delay agreements, reflecting recent enforcement trends in the UK and beyond.6 If adopted, the additional detail provided by the CMA should provide businesses and practitioners with greater certainty about the scope of qualifying conduct and accordingly encourage applications.
Updated levels of protection for Type B and Type C Applicants
The most significant revisions to the Current Guidance concern the scope of protection offered to “Type B” applicants (those who are the first to apply in respect of a pre-existing investigation) and “Type C” applicants (the second or later applicant in respect of a preexisting investigation, or applicants who have coerced others to participate in the cartel). Namely, the CMA has proposed to remove:
• immunity from financial penalties in respect of corporate Type B applicants at the time of application (i.e., “upfront immunity”), reflecting the fact that discounts are primarily calculated based on the value added by the applicant which cannot realistically be known at the outset (see below regarding the value of discretionary discounts offered later in the process);
• the additional financial protection potentially available to Type B applicants under the ‘leniency plus’ regime, since such protection has not, in practice, been granted;7
• automatic protection from a competition disqualification order (“CDO”) for successful Type B and Type C applicants. If adopted, only “Type A” applicants (those who are the first to provide the CMA with evidence of a cartel not currently being investigated) will receive this protection automatically and discretionary protection will be available for Type B and Type C applicants.8 This proposal is intended to balance incentives for prospective applicants with protecting the public by removing unfit directors and deterring anti-competitive conduct.9
Further, the Draft Guidance clarifies that discretionary criminal immunity for current and former employees and directors of Type B and C applicants is likely to be granted only in “exceptional circumstances”, with the public interest in pursuing offenders generally outweighing the assistance that any individual will be able to provide in a Type B or C application.10
The CMA has also helpfully clarified the level of discount that can generally be anticipated for Type B and C applicants in practice, noting that Type B applicants should expect no more than 50% in resale price maintenance investigations or 75% in other cases,11 and Type C applicants should expect significantly less than the maximum 50%.12
intention to confess’ at the outset of an application, which is often interpreted as a requirement to admit participation in a cartel.13
In response to concerns that this may disincentivise applicants, the CMA proposes that admission will not be required until a leniency agreement is signed (though continuous and complete cooperation throughout an investigation would still be required).14
It is hoped that this amendment will mitigate any apprehension on the part of prospective applicants in circumstances where the precise scope of the cartel activity may not yet be clear when submitting an application.15 Crucially, there are no proposed changes to the obligation not to act in a way that is inconsistent with an admission.
Amendment to admission obligation
The Current Guidance requires leniency applicants to have a ‘genuine
Other updates of note
The CMA has also proposed:
• removal of the dishonesty element of the criminal cartel offence;16
• implementation of the changes to the private damages regime by the EU Damages Directive;17
• introduction of the debarment regime covered by the Procurement Act 2023, which came into force in February 2025;
6 See, for example the CMA’s ongoing investigation in respect of no-poach arrangements in the fragrance and fragrance-ingredient markets (Investigation 51257).
7 Under the “leniency plus” regime, the CMA may grant an additional reduction in financial penalties in relation to cartel conduct in the first market, due to a successful leniency application in the second market.
8 Consultation Document, paragraph 3.18.
9 Consultation Document, paragraph 3.17.
10 Draft Guidance, paragraph 2.44; Consultation Document, paragraph 3.24. There are no proposed changes to the availability of criminal immunity in Type A applications.
13 Current Guidance, paragraph 4.2(c); Consultation Document, paragraph 3.8.
14 Draft Guidance, paragraph 2(6)(d).
15 Consultation Document, paragraph 3.9.
16 Enterprise and Regulatory Reform Act 2013.
17 Implemented by the Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017/385.
• changes to reflect the introduction of the Digital Markets, Competition and Consumer Act 2024; and
• changes to reflect the UK’s exit from the EU, for example, the CMA’s commitment not to share leniency information with overseas agencies without the consent of the provider now extends to the European Commission and EU national authorities.18
Finally, the CMA has proposed a new online procedure using SharePoint to serve as the default method of submitting applications for leniency which would otherwise be made orally. This is intended to modernise and improve efficiency of the process for both the CMA and applicants.
Consultation responses
The consultation closed on 9 June 2025. Although the CMA has not published any feedback received, the City of London Law Society Competition Law Committee (“CLLS”) has published its response.19
The CLLS raised a number of concerns with the proposed changes, noting, for example, that removing up-front Type B immunity
and automatic Type B and C CDO protection may disincentivise applicants when there is a pre-existing investigation, to the detriment of the quality or pace of the investigation.
Similar concerns are expressed in respect of the exceptional nature of criminal immunity, the removal of leniency plus, and the cap on discounts in practice.
It remains to be seen whether the CMA will incorporate this feedback. Nonetheless, the proposed revisions to reflect legislative developments, the CMA’s decisional practice and enforcement priorities, should generally be received as a welcome development. If adopted, the CMA’s proposed changes should offer prospective applicants with greater clarity around the leniency policy and process so that applicants have a better understanding of what is expected of them, and what they can expect from an application.
Next steps
The CMA has not provided a timetable for next steps, but we know that following review of feedback under the consultation, the CMA will publish the updated guidance, which will take effect from the date of publication. Any leniency applications made prior to this date will be governed by the Current Guidance.
HOW FINTECH’S CUSTOMER EXPERIENCE PLAYBOOK CAN
TRANSFORM YOUR CLAIMANT
AND BOOST SETTLEMENT COMPLETION RATES
Authored by: Rob Heffernan (CEO) - Talli
Law firms handling class actions and mass settlements face a hidden problem that’s costing them money and reputation - claimant experience. Often the focus for firms is legal strategy and case outcomes, but an outdated disbursement process might be undermining everything you’ve built.
But it’s often forgotten that claimants are consumers who are more accustomed to interacting with slick interfaces daily, especially across fintech. They expect the same speed, choice, and transparency from legal proceedings that they get from their banking apps. When your settlement process involves 12-week waits and zero communication, you’re potentially damaging trust and reducing payout completion rates.
The opportunity is massive. Fintech companies cracked the customer experience code through deliberate design choices that Legal can adapt immediately. The technology exists, the frameworks are proven, and early adopters are already gaining competitive advantages.
This guide breaks down exactly what fintech gets right and how to apply those lessons to transform your claimant experience - without sacrificing compliance or security.
The Experience Gap Is Real
Most legal processes were never designed with the end user in mind. The numbers tell the story:
• 78% of law firms accept electronic payments from clients
• But disbursements remain stuck in the analog age
• 59% of class action claimants feel unsure about when they’ll be paid
• Over 30% of settlement checks go uncashed for amounts under $50
Meanwhile, fintech cracked the code on customer experience through four pillars: speed, choice, transparency, and trust.
Speed - The New Baseline
Real-time payments process in 3 seconds. The global real-time payments market grows at 32% annually. By 2028, 70-80% of US financial institutions will handle instant payments.
Speed is now table stakes.
What this means for legal… Stop batching payments for administrative convenience. Use faster payment rails. Automate verification instead of manual review cycles. Set clear timelines and hit them every time.
The UK’s Online Civil Money Claims platform cut case resolution from 30 weeks to 8 weeks by going digital. Same legal standards, better execution.
Choice - One Size Fits Nobody
Survey data shows payment preferences split evenly:
• 31% prefer direct bank deposit
• 30% want payment apps (PayPal, Venmo, Zelle)
• 30% choose prepaid cards
• The rest still want checks
The insight: Offering six payment options earns 59.5/100 customer satisfaction scores. Two options or fewer? 50.6/100.
What this means for legal: Build a menu of payout methods. Let claimants choose their preferred channel during the redemption process.
Transparency
- No Black Boxes
Fintech companies obsess over user visibility. Transaction history, real-time status, predictable flows. Users can see what’s happening with their money at all times.
Legal disbursements operate in a communications black hole. 55% of class action recipients question the process validity due to poor communication.
What this means for legal: Send automated status updates at key milestones. Provide payment tracking. Use plain language, not legal jargon. Build FAQ pages that answer questions before people ask them.
When you promise payments by June 30, deliver 100% by June 30.
Trust Through Technology
Fintech platforms earn trust through security and reliability. Bank-grade encryption, fraud detection, biometric authentication. They make compliance a feature, not a burden.
What this means for legal: Use automated identity verification. Implement real-time fraud screening. Communicate security measures clearly. Provide human support when technology hits edge cases.
The Competitive Reality
The switching costs are low now. 73% of users would change banks for better digital experience. 49% leave brands after poor UX, 86% abandon brands after two bad experiences.
Your claimants aren’t locked in. Poor experience damages your reputation and affects future case participation.
Legal firms can directly learn from Fintech’s customer experience playbook
Immediate actions:
• Audit your current disbursement process for unnecessary delays
• Offer multiple digital payment options alongside traditional methods
• Create automated communication workflows for status updates
• Build simple self-service portals for preference management
Technology enablers:
• Partner with legal-specific fintech platforms that handle compliance
• Use APIs for instant identity verification and fraud screening
• Implement real-time dashboards for payment tracking
• Automate routine tasks that bog down your team
The Business Case Is Clear
Every $1 invested in UX returns $100. Companies with top design practices grow twice as fast as benchmarks. For law firms this means reduced administrative costs, faster settlement cycles, higher client satisfaction. Early adopters gain competitive advantage while others catch up.
Why Now Matters
60% of law firms plan digital system upgrades in 2025. Those who prioritise customer experience in disbursements will differentiate themselves in an increasingly crowded market.
The technology exists. Platforms like Talli bring fintech-grade infrastructure to legal workflows. Real-time dashboards, multiple payment methods, automated compliance, bank-grade security.
Claimants have seen what’s possible with fintech. They expect the same convenience, speed, and transparency from legal proceedings.
The legal industry stands at a crossroads. Continue with outdated processes that frustrate claimants and burden teams, or embrace the customer experience revolution that fintech pioneered.
For forward-thinking law firms, the choice is obvious. The future belongs to those who put customer experience at the center of their operations.
HEALTHY COMPETITION OR BAD BUSINESS?
Governing bodies and rights holders in sport are facing growing legal scrutiny over the rules they impose on clubs, players, and commercial partners. We examine some of the most highprofile competition disputes in the sporting world and explore how they demonstrate the increasing influence of competition law in elite sports.
Something was rotten in the state of professional tennis. That was according to the Professional Tennis Players’ Association (PTPA), a player union co-founded by Wimbledon champions Novak Djokovic and Vasek Pospisil.
In a statement on its website in March 2025, the PTPA revealed that it had taken
“decisive
legal action”
against the sport’s four governing bodies – the Association of Tennis Professionals (ATP), the Women’s Tennis Association (WTA), the International Tennis Federation (ITF),
and the International Tennis Integrity Agency (ITIA) – for alleged “systemic abuse, anti-competitive practices, and a blatant disregard for player welfare that [has] persisted for decades.”
COMPETITION LAW’S INCREASING ROLE IN ELITE SPORTS
The claim, which was filed in the US and the EU, as well as with the UK’s Competition and Markets Authority (CMA), is hardly a one-off. In fact, it has been one of many similar competitionbased claims to be launched by players, newcomers and commercial partners in recent years against governing bodies or rights holders that have, in the claimants’ view, become a little too big for their sporting boots.
A league of one’s own
A common catalyst for competition disputes within sports is often the attempted formation of new – or ‘breakaway’ – leagues or competitions, and the lengths to which incumbents will go to protect their position in the sport.
In 2021, for example, both the Fédération Internationale de Football Association (FIFA) and the Union of European Football Associations (UEFA) blocked attempts to form a new European Super League (ESL) from 20 teams, 15 of which would have never faced relegation. According to FIFA and UEFA, the ESL’s creators had not sought prior approval before setting up the competition, in breach of FIFAUEFA Statutes. As such, any teams and players that competed in the new ESL ran the risk of heavy sanctions. This attempt to block the new competition was subsequently challenged and taken to the European Court of Justice (ECJ).
Authored by: Claire Herbert (Partner) and Kasey Cummings (Trainee Solicitor) - Gateley Legal, and Ian Li (Solicitor) - Austen Hays
Setting aside the controversy surrounding the ESL’s creation - which led to widespread criticism, and even protests, from pundits, players, MPs, and fans alike - the question before the ECJ was one of competition, and whether FIFA and UEFA had breached competition law by blocking the ESL’s formation.
Ultimately, the ECJ decided that they had. “Where an undertaking in a dominant position has the power to determine the conditions in which potentially competing undertakings may access the market, that power must, given the risk of conflict of interest to which it gives rise, be subject to criteria which are suitable for ensuring that they are transparent, objective, nondiscriminatory and proportionate.
However, the powers of FIFA and UEFA are not subject to any criteria. FIFA and UEFA are, therefore, abusing a dominant position,” it said.
In response, UEFA last year adopted its ‘Authorisation Rules’ for international club competition which, amongst other things, are designed to
“ensure that alternative club competitions are played in line with UEFA’s statutory objectives and principles, such as the fight against any practice which might jeopardise the integrity of the competitions and the respect of players’ health”. UEFA will also “enforce these rules in a proportionate manner” (our emphasis).
legitimate objective, be transparent, non-discriminatory and proportionate, and not restrict free access and open competition to the sport.
Practices in breach of these requirements may involve onerous contracts for players, or restrictions on when and where new events or leagues may be broadcast and publicised.
On 8 January 2025, for example, new snooker entrant NST Worldwide, which organises and promotes professional snooker events, issued a claim under section 47A of the Competition Act 1998 against three defendants for the alleged
“setting of unlawful and anti-competitive provisions in the contractual relationships between WSL and professional snooker players.”
According to the claim, World Snooker Limited (WSL), its parent company World Snooker Holding Limited, and governing body World Professional Billiards and Snooker Association Limited (WPBSA), had “prevented professional snooker players playing in tournaments, events, or matches organised by competitor promoters, including NST”, whilst also
“depriving snooker fans [of] more chances to watch snooker on free-to-air TV.”
The claim is ongoing, but the stakes are certainly high, with NST Worldwide claiming £10.2m in damages plus interest, as well as
“declarations from the Court to invalidate terms used by World Snooker Ltd to abuse its dominant position.”
In the rough
As the world of golf shows us, however, competition claims against incumbent events and tournaments are not always successful, particularly where players or third parties have acted in breach of existing contract terms.
Indeed, well-established competitions and leagues are already demonstrating their willingness to fight tooth and nail, particularly against newcomers that are likely to dilute the audience or poach sporting superstars.
Many professional golfers have already learned this to their detriment after participating in the inaugural Saudi Arabian LIV Golf tournament.
The invitation-only event, which offers substantial prize money to participants, caused significant disruption to the PGA European Tour as golfers either removed themselves from, or even resigned their membership to, the PGA European Tour, without first being granted release.
In response, the PGA European Tour levied significant fines and sanctions against the golfers involved, all of which were appealed. These appeals, as well as the golfers’ claims that the PGA European Tour’s regulations were unlawful, unenforceable and / or void, were rejected, however, with Sports Resolution UK stating that the golfers had committed
“serious breaches”
of the Code of Behaviour and Regulations.
Each golfer was subsequently fined £100,000 and suspended from participation in three forthcoming golf tournaments, although this has arguably not been enough to dissuade golfers from continuing to participate in LIV Golf.
New kids on the block
Whilst competition law does not prohibit governing bodies from regulating their sports, any restrictions within these regulations must serve a
A balancing act
Given that many governing bodies operate as both the regulator that defines and enforces the rules of their sport, and the commercial actor that maintains their sport’s profitability and growth, ensuring that rules are proportionate, transparent, and legally defensible is not always a straightforward line to tread.
Tread it they must, however, particularly as competition law’s visibility and involvement in elite sports increases.
This is not necessarily a negative occurrence either. Indeed, as we are already seeing, competition law is empowering many sportsmen and women to argue for better financial compensation, more contractual flexibility, and greater emphasis on physical and mental wellbeing. These challenges to extant sporting frameworks are empowering players to regain control over their own participation in their sports.
For fans, this could also signal the beginning of greater accessibility to, and affordability of, sports events, particularly where competition law is used to break up monopolies on broadcasting or commercial rights.
As the PTPA argues in its claim, the conflict of interest between responsibly regulating the sport and achieving the best commercial outcome can, ultimately, be detrimental to the sport’s players.
Each sport will need to identify its own solution to this – one that aligns with the legal principles of competition law and accepts that the days of an incumbent, dominant few in a particular sport may soon be over. Whether a sport is matchfit or bound for the bench will depend on the strength of its regulations and contracts, and its willingness to face the new challenges of a more open and dynamic sporting arena.
We are experts in competition economics.
We are fully committed to every case we take on and rigorous in the analysis we deliver.
We deal with the complete spectrum of competition policy assignments from mergers and litigation through to market investigations and abuse of dominance.
On 11 July 2025, the Court of Appeal dealt a further blow to Phones 4u (in administration) (“P4u”) by unanimously dismissing its appeal in its longstanding dispute with three of the UK’s mobile network operators (“MNOs”), EE Limited, Vodafone Limited and Telefonica UK Ltd (O2) (the “Judgment”).1
PHONES 4U
APPEAL:
PASSIVITY, PUBLIC DISTANCING AND PROLONGED JUDGMENTS
P4u sought permission to appeal on eight separate grounds involving challenges of both law and fact, with permission ultimately being granted in relation to six of those grounds.
The claim concerns allegations that, in breach of English and EU competition law, the MNOs engaged in collusive behaviour to end their respective contracts with P4u for the indirect retail supply of connections in the UK mobile phone market, leading to P4u’s collapse shortly thereafter. In a lengthy judgment handed down some 15 months after trial, P4u’s claims were dismissed in their entirety, with the Judge concluding that the MNOs had individual incentives to reduce their reliance on indirect supply channels and that the evidence demonstrated a lack of coordination.
Ground 1: Concertation and consensus
P4u’s first ground arose out of the Judge’s findings concerning a discussion that took place between two executives of O2 and EE around pricing strategy for the impending launch of the 4G network. Despite the EE executive not actively engaging in the discussion – and becoming so nervous that he started recording the conversation –P4u alleged that this passivity conveyed valuable confidential information which reduced uncertainty for O2, sufficient for a finding of concertation.
The Court noted that disclosure of intended conduct by one party can give
1 The claims were brought against the three MNOs and their parent companies.
2 Judgment/§§113-125.
3 Judgment/§§126-136.
rise to concertation, but a consensus of some form is necessary, as is a reduction in uncertainty as to the expected conduct of the competitor. Applying those principles, there was no error in the Judge’s application of the law and the Court upheld the findings that O2 received no encouragement that EE would accede to its proposed strategy, nor could it have inferred from EE’s silence any consensus or acquiescence.2
However, the Court went onto consider two related questions:
• Can vague information be enough for concertation? The Court held that some level of specificity in the information conveyed is required for there to be a finding of concertation. The information must also be of a strategic nature and quality, capable of reducing uncertainty. Whilst the Court had some difficulty with certain of the Judge’s factual conclusions in this regard, it did not find any errors of law in his approach.3
• Does consensus require something beyond a passive reaction? Whilst concertation requires some form of coordination, the question of whether passive behaviour amounts to consensus depends on the context. If the recipient of a unilateral disclosure of information “requests or at least accepts” it, that can be
sufficient.4 Having concluded that the Judge made no error in law, the Court upheld his findings that EE’s passive response did not amount to any consensus to cooperate with O2’s strategy. 5
Ground 2: The ‘Anic’ presumption
At the heart of Ground 2 was the presumption established in Commission v Anic6 that undertakings participating in concerted behaviour take account of the information exchanged with competitors when determining their own conduct on the market. The question before the Court was whether the Judge had erred in his assessment of the scope and effect of the Anic presumption by finding that it had been rebutted by the events which followed O2’s unilateral disclosure of information to EE and Vodafone.7
Those arguments were rejected by the Court:
• Neither Eturas nor Sainsbury’s provides support for the proposition that public distancing was required to rebut the Anic presumption. That proposition lacked logic and there is no principled reason why it should be impossible to rebut the presumption by anything other than public distancing.11
• The standard of proof in respect of the Anic presumption is a matter of domestic law (i.e., the balance of probabilities), and not the higher test relied on by P4u.12
• Applying that standard, there was no basis to reverse the Judge’s finding that the Anic presumption had been rebutted and so Ground 2 was dismissed.13
The Court found the Judge’s conclusion that Vodafone was not the source of the confidential information to be grounded in the pleadings. The fact that the Judge went beyond this to posit a “more plausible” source for the information was immaterial to his conclusion that EE and Vodafone did not collude. Dismissing Ground 3, the Court found that the Judge’s approach did not prejudice P4u.15
P4u argued that the Anic presumption could not be rebutted by anything other than ‘public distancing’ or a report to competition authorities (steps which neither EE nor Vodafone had taken). P4u relied on the CJEU’s decision in Eturas8 as authority for the proposition that public distancing was required, together with what P4u claimed was an endorsement of this principle by the Supreme Court in Sainsbury’s.9 P4u also submitted that, if evidence other than public distancing could be relied on, the Judge had failed to apply the higher standard of proof established in EU case law.10
Ground 3: New case theory
Ground 3 concerned the Judge’s reliance on a factual theory which had not been canvassed at trial, namely whether Vodafone had been the source of certain information found in EE’s internal documents. Whilst the Court recognised that judges are not generally permitted to decide cases on theories that have been neither pleaded nor argued at trial (and cautioned judges against raising new theories without allowing the parties an opportunity to address them), the key issue was whether any prejudice had been suffered because of the Judge’s approach.14
4 Judgment/§142, citing Argos Ltd and Littlewoods Ltd v Office of Fair Trading [2006] EWCA Civ 1318, at §21(v).
5 Judgment/§§137-147.
6 [2001] 4 CMLR 17.
Grounds 4 and 5: Delay and compartmentalisation
Grounds 4 and 5 concerned several of the Judge’s findings of fact which P4u challenged due to the delay in judgment being delivered; and/or the Judge’s compartmentalised approach to the treatment of evidence. The Court dealt with the grounds together, providing the following guidance:
• Judgments should generally be delivered within three months of a hearing, with the Court recognising that “an inadequate, rushed, judgment may well also deny justice”.16 However, delay will not itself be a sufficient ground to challenge a decision, and an appellate court will only interfere with findings of fact if it concludes the judge was “plainly wrong”.17
• Where there is serious delay, the court must decide whether the decision is safe, having regard to both the judgment and the judge’s consideration of the evidence as a whole. There is no “uninhibited ability” to challenge factual findings due to delay; there must be a causal link between the delay and the alleged errors.18
7 It was alleged that, at around the same time as the O2/EE discussion, O2 engaged in collusive discussions with Vodafone concerning its future strategy with indirect retailers, with further collusion taking place in 2013 and 2014.
8 Eturas UAB v Lietuvos Respublikos konkurencijos taryba [2016] 4 CMLR 19.
9 Sainsbury’s Supermarkets Ltd v Visa Europe Services LLC [2020] UKSC 24, at §113.
10 Case C-455/11P Solvay SA v Commission [2014] 4 CMLR 17. See Judgment/§171.
11 Judgment/§§154, 163 to 164.
12 Judgment/§174; Sainsbury’s v Visa at §§115 to 116.
13 Judgment//§§172 to 181.
14 Judgment/§§194 to 197. See also Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041 and Satyam Enterprises Ltd v Burton [2021] EWCA Civ 287.
15 Judgment §§198 to 215.
16 Judgment/§324.
17 Judgment/§218.
18 Judgment/§§218 to 224.
• The extent to which a compartmentalised approach renders a judgment unsafe will depend on whether it affected the judge’s evaluation of the facts.19
Conclusion
The Judgment provides important clarification on the law on concerted practices and the proper approach to the consideration of passive responses to potentially anticompetitive conduct. It also contains useful guidance on the prejudicial effect of judges relying on new (un-pleaded) case theories, and the circumstances in which justice delayed can amount to justice denied.
Applying those principles, the Court was satisfied that the Judge had considered the evidence P4u claimed had been ignored, and that the omission of certain evidence was not caused by delay. The Judge had re-read the evidence presented at trial in preparing his judgment, and there was insufficient compartmentalisation to render the Judgment unsafe.20
Ground 7: Document preservation
The final ground addressed whether the Judge had erred by not drawing adverse inferences from Telefonica’s failure to implement appropriate document preservation measures. The Court noted that such an appeal raises a high bar, requiring the appellant to demonstrate that
“no reasonable tribunal could have reached” the same decision as the lower court.21 It found that the Judge had carefully considered the factual record and heavily criticised Telefonica’s failures in respect of document preservation. He was entitled, however, to accept the evidence that Telefonica had not knowingly destroyed relevant documents.22
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What do you see as the most important thing about your job?
With my focus being class action settlement payments, I think one of the most important parts of my job is gathering industry requirements to help shape the direction of our disbursement and payment services, so we can better serve the needs of claimants, administrators, and providers.
What motivates you most about your work?
Finding solutions to challenges our partners face.
If a film was to come out about your life, who would play you?
It would have been Bill Paxton before 2017. Now that he is gone, I’d have to say either Matt Damon or Will Farrell. Or maybe both.
What is your favourite part of your working day?
First cup of coffee, before people start talking.
60 SECONDS WITH... CHRIS COCHRAN SENIOR DIRECTOR BLACKHAWK NETWORK
What songs are included on the soundtrack to your life?
So many. My Heroes Have Always Been Cowboys, Summer Wind, The Way You Look Tonight, Tom Sawyer, Get Up Stand Up, Under African Skies, Born at the Right Time, Mannish Boy, I’m A Soul Man, Caravan, Into the Mystic, Life During Wartime, Once in a Lifetime, You Can’t Always Get What You Want (or any other Rolling Stones song); my goal is to keep the soundtrack running a long, long time.
Who/What inspired you to be who you are today ?
I am the youngest of six, so I had incredible role models in my parents and older siblings. They set a high bar for me with their kindness, caring, responsibility, knowledge, and public service. If I had 9 lives, I don’t think I could measure up to their examples.
What is a quote that best describes you?
Frequently wrong, but never in doubt.
What would you be doing if you weren’t in this profession?
Teaching history, or running a one-man tiki bar on the beach. Or maybe both!
What do you like most about your job?
Learning new perspectives from partners and coworkers.
What is your favourite takeaway dish?
Sushi. No, Chinese. Wait. Definitely Sushi. Or maybe both!
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MAJOR DEVELOPMENTS IN UK COMPETITION POLICY: WHAT C-SUITES NEED TO KNOW
Authored by: David Parker (Managing Director) - BRG
Preparing for shifts in public and private competition enforcement actions
The last decade has seen major developments in UK competition policy that make this area a critical business issue for C-suite executives with operations in the country.
The developments fall into two categories: an increase in the scope and extent of public enforcement, with recent signs that this might have reached a high-water mark; and an unrelated but simultaneous spike in private enforcement (i.e. businesses or consumers taking other businesses to court directly, without relying on the competition authority).
most globally consequential competition authorities—both intellectually (in terms of pushing the frontiers of competition law) and practically (in terms of globally significant interventions). However, recent developments suggest that the CMA may (or may need to) be more circumspect in its use of its powers, even as those powers continue to expand.
How did we get here? Prior to Brexit, UK competition authorities had a reputation within the European Union (EU) for supporting the use of economic evidence and robust analysis in competition enforcement, balancing the more interventionist sentiments of other EU members. The Brexit vote disturbed this equilibrium, requiring the CMA to develop an independent position on competition policy matters and freeing the remainder of the EU to develop policy in a more market-sceptical direction, unchecked by the UK’s more economics-based approach.
Public Enforcement Has Increased—But May Now Be Being Checked
On the public enforcement front, postBrexit, the UK Competition and Markets Authority (CMA) became one of the
The changes resulting from Brexit coincided with three other factors: a change in leadership at the CMA; an increasing concern that large digital firms had gained significant power without sufficient regulatory scrutiny; and a period of stagnant real incomes against a backdrop of the austerity regime imposed following the 2008 financial crisis. The CMA’s new leadership appeared to find in Brexit both a significant challenge and opportunity: to influence a global move towards greater competition intervention, targeted particularly at digital firms but with broader applications as well.
From 2016 to 2023–2024, this recalibration manifested itself in two main ways: first, in pushing forward the intellectual case for a paradigm shift in the nature of competition enforcement (in conjunction with similar developments occurring in the US and EU); and second, in enacting its existing powers with greater stringency while arguing for new powers to cover areas it considered regulatory gaps.
Merger Enforcement
From a merger perspective, this shift was most clearly signalled by the prohibition of the proposed merger between Sainsbury’s and Asda in 2019 and confirmed by a large number of subsequent prohibitions. A leading law firm even started to publish a “deal mortality index” to monitor the mounting chance of deals being blocked or abandoned.
The high point of CMA merger intervention occurred between 2021 and 2023, when the agency blocked proposed mergers between Meta and GIPHY and between Microsoft and Activision. The Competition Appeal Tribunal (CAT), the UK’s specialist competition court, upheld the Meta/GIPHY decision. The Microsoft/Activision decision was ultimately abandoned at the appeal stage, with the CMA agreeing to certain behavioural commitments from Microsoft in return for clearance.
The latter case led to a widely held suspicion that there was substantial political pressure on the CMA to avoid a prohibition. Further evidence in support of this hypothesis was provided earlier this year when the new UK government said that it wished to see the CMA operating a pro-growth policy, a pronouncement interpreted by many as code for a lessrestrictive merger regime. This direction may be further enhanced following the election of President Trump, given that there may be increased pressure on UK regulators to take a less-aggressive approach to competition enforcement in relation to global US firms.
These powers—alongside greater powers in respect of consumer protection concerns—have only come into force this year. Thus far, the CMA has announced that it will open investigations into two big tech firms to determine whether they have “Strategic Market Status” and, if so, what regulation should be applied. The introduction of these powers marks a significant shift for the CMA from being an ex post competition authority to an ex ante regulator in respect of large digital firms, akin to the EU’s orientation with regards to the Digital Markets Act.
As a result, the CMA has gained substantial new powers just as the UK government has warned it should tread more carefully in the application of its existing powers to avoid adverse effects on economic growth (as described above in the merger context). The CMA will need to balance these competing pressures when choosing which areas to prioritise and the nature of any interventions.
Growth in Private Enforcement Is Driven by Standalone Claims
The second significant development in UK competition policy over the last decade has been an extraordinary growth in private enforcement, primarily in standalone competition cases claimants have brought directly to the CAT (and other courts).
need to have litigation funding to be brought; and third, an active and expert claimant bar.
The typical process for bringing such claims is for a claimant firm to i) identify a firm that is likely to be found dominant (at present, large digital firms and ex statutory monopoly utility firms are the typical candidates of choice); ii) identify some aspect of that firm’s behaviour that is considered to give rise to consumer harm, often following a noncompetition regulatory intervention or consumer complaints; and iii) express this concern as a breach of competition law, often as an exploitative abuse of dominance.
About fifty cases are pending at the CAT, with more being published on a regular basis. The first of these cases have just started to be heard at the full trial stage. Large firms will likely need to factor into their strategic plans the potential for opt-out class actions to be brought against them.
“In the next five years, we will discover how straightforward it will be for claimants to prove their cases and whether there is any appetite for the UK government to extend the opt-out regime. It has been under pressure to do so for consumer claims at least, but has for now chosen to keep its powder dry.”
Antitrust Enforcement
From an antitrust perspective, the CMA from 2016 argued for increased legislative powers, both to allow it greater scope to intervene beyond standard competition powers and to limit appeal options for companies subject to CMA decisions, with the intention of reducing delays in enforcement actions. An example is the CMA’s 2019–2020 Online Platforms and Digitaln Advertising market study, which recommended that the UK government grant the CMA new powers to regulate large digital firms.
This change has been driven by the introduction of an “opt-out” class action regime in October 2015 which is available only for competition law infringements (previously, individual claimants had to opt in to be included in the claim and receive damages). The aim originally was to make it easy for consumers to bring follow-on claims after the CMA had published its findings. For instance, in 2007 the Consumers’ Association brought a claim against suppliers involved in a cartel relating to the sale of replica football shirts, which cost the Consumers’ Association hundreds of thousands of pounds in legal costs, but only a handful of customers signed up to receive the (small individual) damages.
However, the new regime has been characterised by a dramatic surge in “standalone” claims, where liability needs to be established before damages can be calculated. Perhaps unanticipated by legislators, this development has been driven by several reinforcing factors: first, a claimant-friendly disclosure regime; second, an acceptance that cases will
Competition Enforcement Is a C-Suite Issue
While the tide appears to have receded somewhat from the high-water mark of merger intervention, firms now face a regulator with increased powers to intervene in digital markets and on consumer protection issues, as well as an extremely active private enforcement regime.
UK competition law matters will therefore continue to be C-suite issues in the next decade, both for UK firms and for global firms doing business in the UK
Since launching in Brussels and Paris in September 2023, BRG’s European Competition practice has now grown to over 50 professionals.
Aleksandra Boutin Managing Director Brussels
Marcella Fantini Managing Director Rome
David Parker Managing Director London
Xavier Boutin Managing Director Brussels
Greg Harman Managing Director London
Dante Quaglione Managing Director London & Rome
Adina Claici Managing Director Brussels
Kai-Uwe Kühn Managing Director Brussels
Mark Bosley Director London
Konstantin Ebinger Managing Director Brussels
Francesco Lo Passo Managing Director Rome
Jean-Gabriel Despeyroux Director Paris
Laurent Eymard Managing Director Brussels & Paris
Liberty Macebo Mncube Managing Director Johannesburg
Cyril Hariton Director Brussels
THE ROLE OF EXPERTS IN SHAPING COMPETITION LITIGATION
LESSONS FROM RECENT JUDGMENTS
Authored by: Camelia O’Brien (Director) and Francesco Bilotta (Senior Vice President) – AlixPartners
In the complex and evolving landscape of UK competition litigation, the role of experts and their evidence is still taking shape but is proving to be of fundamental importance. From resolving carriage disputes in relation to class actions concerning competition law infringements, to navigating the intricacies of class certification and trials, expert evidence has been playing a critical role in shaping legal outcomes.
in Hunter v Amazon and Hammond v Amazon1, Hammond’s methodology was preferred since it aligned with the hypothetical counterfactual of removing the alleged Amazon bias from its Buy Box algorithm. In BIRA v Amazon and Stephan v Amazon2, the Tribunal considered that the methodology proposed by Professor Stephan’s expert was preferable. As a result, the methodological approach proposed by the expert was a decisive factor (along with the broader scope of abuses alleged).
that serves as a blueprint to trial. However, this methodology does not need to be fully developed or trial ready. The Tribunal acknowledges the challenges experts face, particularly when working with limited information to construct complex counterfactual scenarios (i.e. how outcomes would have been different absent the infringing conduct/agreements), especially in standalone abuse of dominance cases where there is no prior competition authority decision. In a number of cases, claimants have been granted permission to revise and reformulate elements of their claims and methodology, notably in Gormsen v Meta3 and in CICC v Mastercard and Visa4, where the cases were certified after the experts submitted a revised methodology.
Experts’ role in carriage disputes
Expert evidence has played a key role in resolving carriage disputes – the Tribunal has tended to favour cases where the expert’s methodology aligned closely with the alleged abuse and counterfactual and that is comprehensive in scope. For instance,
Experts’ role at certification
Experts play a crucial role in certification, despite the relatively low threshold for this. Experts are required to outline a suitable methodology
A key issue has been the methodology’s flexibility: it must be adaptable to different views of abuse or counterfactuals based on facts that may not yet have been determined. For example, in the recent Bulk Mail Claim v International Distribution Services case5 the Tribunal emphasised that:
“the methodology must identify the issues, not
1 Julie Hunter v Amazon.com, Inc. and others; Robert Hammond v Amazon.com, Inc. and others [2024] CAT 8, 5 February 2024.
2 BIRA Trading Ltd v Amazon.com, Inc. and others; Professor Andreas Stephan v Amazon.com, Inc. and others [2025] CAT 6, 20 January 2025.
3 Dr Liza Lovdahl Gormsen v Meta Platforms, Inc. and Others [2024] CAT 11, 15 February 2024.
4 Commercial and Interregional Card Claims I & II Ltd v Mastercard & Visa [2024] CAT 39 (7 June 2024), 7 June 2024.
5 Bulk Mail Claim Limited v International Distribution Services plc (formerly Royal Mail plc) [2025] CAT 19, 12 March 2025.
the answers. It should be capable of being adjusted in the event the defendants win on some issues at trial.”6
An unresolved question is whether updated methodologies should be revised pre or post certification. In Bulk Mail Claim v International Distribution Services, the Tribunal requested an updated methodology report postcertification, whereas such updated methodology was requested precertification in Gormsen v Meta7. This may be driven by the perceived scale of the issues to be addressed as to how infringement/damages are to be assessed.
Although it may be uncertain whether a carriage dispute will arise at the time of preparing a certification report, the importance of expert methodology in such disputes means that claimant experts must still develop comprehensive and rigorous methodologies, despite the relatively low threshold for certification.
Experts’ role at trial
In the only collective action trial in the UK with a judgment to date, expert evidence was the cornerstone of the Tribunal’s decision. The Le Patourel v BT judgment8 highlighted the Tribunal’s reliance on different experts’ evidence to assess whether BT’s prices were excessive and unfair. As regards the excessive limb, the Tribunal scrutinised the different cost allocation methodologies used by both side’s experts and adopted a blended approach, ultimately finding the prices excessive, but to a materially lesser degree than originally claimed.
However, the case turned in BT’s favour on the unfairness limb, where behavioural expert evidence played a critical role. The claimant’s expert presented behavioural analysis –drawing on BT’s internal documents and academic and regulatory literature – but the Tribunal found it to be more theoretical. In contrast, the Tribunal found that the defendant’s behavioural expert provided concrete, context specific, evidence of the economic value of BT’s services, including brand value and customer loyalty, which was crucial in proving that the prices were not unfair.
Two key takeaways emerged from this judgment.
Firstly, when it comes to expert evidence the Tribunal can differentiate between ex ante regulatory considerations and ex post Competition Act proceedings.
In the case in question, the Tribunal indeed noted that the regulatory considerations made before the trial (ex ante) were fundamentally different from those made during the trial (ex post) under the Competition Act proceedings.
Secondly, it became clear that while the Tribunal is open to behavioural economics evidence, it also demands practical, empirical evidence to support claims.
High-level behavioural arguments based solely on theory may not be sufficient.
Overall, the Tribunal found the expert evidence and particularly the joint statement produced by the economic experts “[…] a particularly useful document” even on matters where they disagreed with one other.9
The Tribunal’s engagement with expert evidence
The Tribunal’s thorough engagement with expert evidence is consistent across both collective and noncollective decisions. In Royal Mail v DAF Trucks10, the Tribunal meticulously examined large volumes of economic evidence from both sides before reaching a middle-ground decision. This approach was also seen in Granville v LG Display11, where the Tribunal preferred the defendant’s econometric model over the claimant’s approach to extrapolating prices by comparing precartel prices to the affected period.12
In Stellantis v Autoliv13, which was a standalone cartel case, the Tribunal found that there was a cartel, but raised concerns regarding the claimant’s econometric model, the interpretation of factual evidence, and data limitations. Notably, the defendant’s expert did not present his own model or provide any usable data, and this was not criticised by the Tribunal. This presents an intriguing question about the role of defendant experts in the growing number of standalone cases: will it be sufficient for these experts to merely critique the claimant’s model without offering an alternative, particularly where they have failed to provide any usable data and where the Tribunal found that there has been a price fixing
6 Ibid. § 15.
7 Dr Liza Lovdahl Gormsen v Meta Platforms, Inc. and Others [2023] CAT 10, 20 February 2023.
8 Justin Le Patourel v BT Group PLC [2024] CAT 76, 19 December 2024.
9 Ibid, § 38.
10 Royal Mail Group Limited v DAF Trucks Limited and Others, [2023] CAT 6, 7 February 2023.
11 Granville Technology Group Ltd v Chunghwa Picture Tubes Ltd & Ors [2024] EWHC 13 (Comm), 8 February 2024.
12 Permission has been granted for this judgment to be appealed.
13 Stellantis Auto SAS and Others v Autoliv AB and Others [2025] CAT 9, 21 February 2025.
cartel affecting the claimant?14 This question is particularly relevant as the landscape of standalone cases evolves.
Use of different types of experts
A diverse range of experts is increasingly being used in competition claims.
For example, the Le Patourel v BT case involved both behavioural and actuarial experts, while Kent v Apple15 featured forensic accounting
and industry experts. In Stephan v Amazon16, a data science expert was relied upon.
Collaboration with forensic accountants is common in disputes involving accounting data, such as excessive pricing cases or loss of chance cases. Behavioural expert evidence is also becoming more relevant, particularly in consumer class actions and cases involving choice architecture. With the increasing focus on algorithms and tech firms, technical experts are likely to play a central role in future disputes.
In conclusion, the role of experts in certification, carriage disputes, and trials is multifaceted and evolving. The Tribunal’s engagement with expert evidence underscores the importance of detailed, robust methodologies and practical, empirical evidence in shaping legal outcomes.
Authored by: Sarina Williams (Partner) and Rachel Pearson
Recent cases in the UK demonstrate that the Competition Appeal Tribunal (“CAT”) is shining an increasingly bright spotlight on the role of the proposed class representative (“PCR”) at the certification stage of competition collective actions. Focussing on Riefa,1 Rowntree2 and Boyle3, this article examines the evolving role of the PCR.
Riefa concerned an opt-out collective claim brought by a special purpose vehicle, whose sole member and director was Professor Riefa, on behalf of consumers who had purchased Apple electronic products at retail level in the United Kingdom during the claim period. The PCR alleged that class members had suffered loss as a result of Amazon and Apple entering into and implementing agreements which restricted third parties from reselling Apple and Beats-branded products on Amazon.
The PCR’s application for certification was considered at two hearings in 2024. The most interesting features of Riefa concerned the “authorisation condition”4: whether it is just and reasonable for the PCR to act as the class representative. Riefa brought about two ‘firsts’ for the collective proceedings regime which could signal a landmark moment in the regime’s evolution. For the first time,
THE ROLE OF THE PROPOSED CLASS REPRESENTATIVE UNDER THE SPOTLIGHT
the PCR was cross-examined prior to certification, particularly in relation to her understanding of the funding arrangements to support the claim; and the CAT refused certification outright. It was only the second time that the CAT had refused to authorise a PCR, after Mr Vermeer in the Boyle rail fares case (although that case continued because of an alternative PCR involved in the case).5
funder. When questioned on whether Professor Riefa would be willing to share that information with the class, counsel for the PCR noted that “she instinctively would not want to take a position contrary to that of her funder”. The CAT concluded that this was clearly contrary to the class’s best interests.
• The CAT expressed broader concerns that Professor Riefa did not fully understand the provisions in the LFA, agreeing with Amazon that “Prof Riefa may have satisfied herself that the arrangements were reasonable on the basis of a misunderstanding” of the terms of the LFA.
• Professor Riefa identified one member who she intended to appoint to a consultative panel. The CAT considered this to be “much too late”.
Why did the CAT refuse to certify the Riefa case?
• Notably, the Litigation Funding Agreement (“LFA”) contained confidentiality obligations that prevented the PCR from disclosing key terms to potential class members, including the funder’s return and the fact that the PCR was obliged to seek priority of payments to the
1 Christine Riefa Class Representative Limited v Apple & Amazon [2025] CAT 5.
2 Rowntree v The Performing Right Society Limited & PRS for Music Limited [2025] CAT 8.
3 David Courtney Boyle v Govia Thameslink Railway Limited & Others [2025] CAT 26.
4 Rule 77(1)(a) of the CAT’s Rules.
5 David Courtney Boyle v Govia Thameslink Railway Limited & Others [2022] CAT 35.
• Taken cumulatively with other indications of a “lack of attention to detail”, the CAT found that Professor Riefa had failed to satisfy the authorisation condition, and conveyed concerns about Professor Riefa’s ability to protect the interests of the class robustly and independently. This is a “heavy responsibility” for the PCR, and the CAT will “hold them to a high standard”.
(Managing Associate) - Linklaters
Departing from the CAT’s previous practice, Professor Riefa was not invited to fix the defects and ‘have another go’.6 The claims therefore failed entirely at the certification stage. PCRs should be wary of failed attempts to certify collective proceedings; the PCR was ordered to pay over £3 million in interim costs to Apple and Amazon.7
The role of the PCR and the prospect of cross-examination was back under the spotlight again in Rowntree. In those proposed collective proceedings, the CAT rejected an application by the proposed defendants to cross examine the PCR, Mr Rowntree, at the certification hearing. Mr Rowntree alleged that PRS abused a dominant position in how it distributed royalty sums.
PRS requested permission to cross examine Mr Rowntree ten days after the CAT handed down its decision in Riefa. In its application, PRS raised three issues on which to cross examine Mr Rowntree:
(1) the appropriateness of the funding terms; (2) a potential conflict of interest, in that Mr Rowntree benefits more from the current royalties model than he would under any assumed counterfactual framework; and (3) the alleged unsuitability of the distribution plan, under which PRS insisted that the proceedings do not pass any sensible cost benefit analyses.
The CAT rejected PRS’s request, holding that these issues could be addressed in legal submissions without the need to cross examine the PCR. However, the CAT did make clear that this did not mean that it would not have questions for Mr Rowntree, should the need arise.
In Boyle, the defendants applied for an order that the class representative should provide a witness statement responding to a series of questions from the defendants, and permission to cross-examine the class representative on these matters. In this case, the CAT stated that it did not find Riefa to be of assistance, noting that crossexamination was ordered in the context of a certification hearing in Riefa, where the CAT had serious concerns as to whether Professor Riefa understood the LFA and whether she had demonstrated a properly independent stance. In circumstances where a CPO had already been made in Boyle, and no application to decertify the proceedings had been made, the CAT was not convinced that it should order crossexamination of the class representative in Boyle, and refused the application that the class representative provide a witness statement responding to the defendants’ questions.
Where does this leave us? The sample size after Riefa is very small, and we should remember that cross examination of Professor Riefa followed a first certification hearing in which the PCR’s team had failed to address the proposed defendants’ concerns over the funding agreement. As Rowntree demonstrates, cross-examination of PCRs will not be happening in every certification hearing – whether it is necessary and appropriate is clearly going to be fact-specific, and a question for the CAT as to whether it has sufficient concerns to merit that level of scrutiny. However, Riefa is unlikely to be the last.
Taking a step back and remembering the policy objectives that underpin the regime, maintaining high standards for class representatives is essential. In opt-out collective proceedings, the represented class members are not before the CAT as parties. Class members may not even be aware of the claim’s existence. There is a risk that the interests of the class representative, legal representatives, funders, and class members may not be aligned. Particularly where lawyers and funders have launched a claim before a PCR is appointed, the PCR needs to satisfy themselves that it has assessed the claim through the lens of the best interests of the class at the outset of the proceedings.
The PCR’s role is clearly a key area of focus for the CAT. It goes to the heart of the authorisation condition and, where it is not met, means that claims fall at the first hurdle. Given the CAT’s focus on this issue, PCRs may face increased scrutiny as to the adequacy of their review of funding documents, and the role and adequacy of any advisory or consultative committees that the PCR has in place.
Complimentary attendance for In-House Counsel, Regulatory Authorities and Government Representatives For partnership enquiries, please contact Helen on +44 (0) 20 3433 2281 or email helen@thoughtleaders4.com
RECENT DEVELOPMENTS IN AGCM ENFORCEMENT ON INFLUENCER MARKETING
by: Rosaria
On 11 June 2025, the Italian Competition Authority (AGCM) announced the closure of six proceedings initiated against influencers for alleged unfair commercial practices in breach of the Italian Consumer Code (Legislative Decree No. 206/2005).
the Authority found no clear indication that the content was advertising, highlighting the absence of any labelling aimed at informing consumers of its commercial nature.
clearly disclose key information relevant to consumer purchasing decisions. The second practice involved creating an inflated sense of popularity, supported by allegedly fake followers, exclusively positive testimonials, and unverifiable reviews.
The investigations focused on the promotion of high-income strategies, where influencers failed to disclose the advertising nature of content published on their social media profiles and websites. Two cases concluded with the imposition of fines, while the other four were closed following the acceptance of commitments offered by the influencers.
The cases concerned influencers Luca Marani, Alessandro Berton, Hamza Mourai, Davide Caiazzo, Luca De Stefani, and Michele Leka, all of whom (according to the Authority) repeatedly published photos or videos on their profiles or websites, offering paid advice on how to achieve substantial, easy, and risk-free profits, often based on their own success stories. In each case,
Notably, these cases concerned the promotion of the influencers’ own services, and therefore did not involve the typical influencer marketing activity concerning third-party products or services.
In the De Stefani case, which resulted in a €60,000 fine for two unfair commercial practices, the first charge concerned the aggressive promotion of easy, risk-free profits online, including claims and endorsements from brands, news outlets, television networks, and programmes that were not easily verifiable. These communications, according to the Authority, were not labelled as advertising and failed to
Interestingly, some of the professionals involved leveraged the fact that they were promoting their own services in their defence. They argued that their activities did not fall within the scope of influencer marketing, as they were promoting and selling their own services, acting as the face of their own businesses. They also claimed that they merely offered educational services, which could not be equated with audiovisual media services covered by telecommunications regulations. As a result, they argued, they did not fall under the definition of “influencers” set out in the Italian Communications Authority’s (AgCom) Guidelines to ensure compliance with the provisions of the Code of Communications by influencers, which defines influencers
Authored
Maria Raspanti (Counsel) - Pavia e Ansaldo Studio Legale
as “entities that perform an activity similar or otherwise comparable to that of providers of audiovisual media services under national jurisdiction.”
which could mislead consumers into believing that such posts were personal recommendations rather than commercial communications.
Secondly, the Authority clarified that the relevant definition for enforcement purposes is the one used to identify “professionals” under Directive 2005/29/ EC and the Italian Consumer Code. Any other definitions, including that provided in AgCom’s guidelines, are not relevant in this context.
follower count), was summarised in its clarification that the term “professional” applies to “persons who frequently carry out promotional activities aimed at consumers on their social media accounts,” regardless of the amount of followers or whether third-party services or products are involved.
It is expected that, at least in the cases where no commitments were offered, this interpretation will be challenged in court, potentially leading to significant developments at the intersection of consumer protection and regulatory enforcement.
In its decisions, the AGCM rejected both arguments. The Authority first recalled that, under the European Commission’s interpretation, an “influencer” is defined as “a natural person or virtual entity that has a larger-than-average audience on a relevant platform.” It emphasised that influencers who promote their own products or services are subject to the same rules as those who promote thirdparty goods and services, including the obligation to clearly inform consumers of the advertising nature of their content. In the De Stefani case, for instance, the Authority noted the continuous blending of purely personal posts with promotional content for paid courses,
The Authority’s effort to assert its jurisdiction, pushing back against narrower definitions tied to specific thresholds or types of services (such as AgCom’s definition, which refers to audiovisual content and a minimum
Looking ahead, these proceedings confirm the Authority’s growing interest in enforcing consumer protection law against allegedly unfair influencer marketing practices and reflect the Authority’s increasing sensitivity to the role of influencers as potential vehicles for misleading commercial communications, suggesting a trend of growing enforcement in this area in the years to come.
What is one work related goal you would like to achieve in the next five years?
I hope to play a meaningful role in shaping the group litigation / collective redress landscape in the UK and EU, growing Angeion International’s footprint, and ensuring that redress is accessible, sensitivity-informed, and genuinely impactful for claimants. I’d love to be part of landmark cases that set new standards for fairness and justice and increase take up rates in distributions.
What cause are you passionate about?
I care about centring humanity in legal processes and became a lawyer to play a part in upholding the rule of law, morality and principled justice and kindness. I’m deeply passionate about access to justice, a principle aligned with tikkun olam, the Jewish philosophy of repairing our fractured world.
What has been the best piece of advice you have been given in your career?
For me, the verse “It is not your duty to complete the work, but neither are you at liberty to desist from it” (Pirkei Avot 2:16) offers profound guidance on how to approach work and career.
Firstly, in roles with big visions, we may never see the full results of our work. It is our responsibility to contribute significantly, progressing and celebrating successes toward the larger goal.
Secondly, this teaching acknowledges that each person’s effort is part of a larger, ongoing chain of collective effort. We are not alone in our striving, and our work becomes part of a broader legacy.
60 SECONDS WITH... JADE TESS WEINER VICE PRESIDENT OF GROUP ACTIONS ANGEION GROUP
What do you see as the most rewarding thing about your job?
Achieving impactful daily micro engagements with team-members and clients, understanding their needs and responding with sensitivity, solutions and kindness, in whatever role and job I do. I appreciate opportunities to energise and motivate through positivity, and optimism to find and fulfil connection to the broader organisational goals.
How do you deal with stress in your work life?
Stress is my unintentional personal trainer and the sole motivation for a gym class.
If you could start all over again, what if anything would you do differently?
I’m truly grateful for my life and proud of where I am today. That said, if I could speak to my younger self, I would encourage her to stand up for herself more, to trust her instincts, set boundaries, and speak with confidence.
What’s your go to relaxing activities to destress after a long day at work?
Beyond work, I’m always juggling something else, whether it is studying another degree, preparing for a bold adventure like Kilimanjaro, or diving into a new challenge. I don’t really do “relaxing” the usual way I am at my best when I’m busy, learning, and spending time with the people I love. That said, I always appreciate a calming walk, mug of tea, and bubble bath (not all at the same time).
What is your go to takeaway? What do you order?
A poke bowl with as many toppings as possible. Extra crunch and sauces are mandatory. And, of course, no meal is complete without something sweet so something chocolatey too.
What’s the most important quote you’ve heard that you have adopted to your personal or professional life?
One quote that has deeply shaped my life is from the Lubavitcher Rebbe: “A leader is not someone who creates followers, but someone who creates more leaders.” I try to live by this; in my personal life, mentoring others, and collaborating professionally. I hope to encourage others to discover their own purpose and find the strength to share their unique perspectives, helping them grow the confidence to contribute meaningfully in their own way.
What would you be doing if you weren’t in this profession?
If I weren’t in this profession, I would return to the nonprofit sector or pursue entrepreneurship, both of which have allowed me to combine my passion for social impact with innovation. My diverse career path ranges roles from, start-up Founder, to Court Law Clerk, to Human Rights Lecturer, to Family Mediator, to Litigator, reflecting a deep commitment to purpose-driven work rooted in enthusiasm and human connection. I would also appreciate a role where baked treats are an acceptable and legal form of tender.
What is the best film of all time?
My favourite film Breakfast at Tiffany’s - an enduring, elegant, and quietly bold portrayal of complex, and charming characters. Beyond the aesthetics of the glamourous 1960s New York, the film is about identity and vulnerability, themes that still feel incredibly universal and relevant.
1631/7/7/23 - PROFESSOR CAROLYN ROBERTS V (1) ANGLIAN WATER SERVICES LIMITED AND (2) ANGLIAN WATER GROUP LIMITED
1630/7/7/23 - PROFESSOR CAROLYN ROBERTS V (1) NORTHUMBRIAN WATER LIMITED AND (2) NORTHUMBRIAN WATER GROUP LIMITED
1629/7/7/23 - PROFESSOR CAROLYN ROBERTS V (1) YORKSHIRE WATER SERVICES LIMITED AND (2) KELDA HOLDINGS LIMITED
1628/7/7/23 - PROFESSOR CAROLYN ROBERTS V (1) UNITED UTILITIES WATER LIMITED AND (2) UNITED UTILITIES GROUP PLC
1603/7/7/23 - PROFESSOR CAROLYN ROBERTS V SEVERN TRENT WATER LIMITED AND SEVERN TRENT PLC
1601/7/7/23 - DR SEAN ENNIS V APPLE INC. AND OTHERS
1599/7/7/23 - DOUG TAYLOR V BLACK HORSE LIMITED AND OTHERS
1595/7/7/23 - ROBERT HAMMOND V AMAZON.COM INC. AND OTHERS
1582/7/7/23 - CHARLES ARTHUR V ALPHABET INC. & OTHERS
1572/7/7/22 - MR CLAUDIO POLLACK V ALPHABET INC., GOOGLE LLC, AND OTHERS
1527/7/7/22 - ALEX NEILL CLASS REPRESENTATIVE LIMITED V. SONY INTERACTIVE ENTERTAINMENT EUROPE LIMITED AND OTHERS
1523/7/7/22 - BSV CLAIMS LIMITED V. BITTYLICIOUS LIMITED AND OTHERS
1468/7/7/22 - MR. JUSTIN GUTMANN V. APPLE INC., APPLE DISTRIBUTION INTERNATIONAL LIMITED, AND APPLE RETAIL UK LIMITED
1443/7/7/22 - COMMERCIAL AND INTERREGIONAL CARD CLAIMS I LIMITED (“CICC I”) V. VISA INC. AND OTHERS
1433/7/7/22 - DR LIZA LOVDAHL GORMSEN V. META PLATFORMS INC., META PLATFORMS IRELAND LIMITED AND FACEBOOK
1336/7/7/19 - MR PHILLIP EVANS V BARCLAY BANK PLC AND OTHERS
PUPPET MASTERS: WHO’S REALLY PULLING THE STRINGS IN CAT CASES?
Who doesn’t admire Jeff Bezos for turning a disruptive, visionary, unsexy start-up in the analogue 1990s to a mainstay of 21st century Western digital society? No doubt Hollywood will soon give him the same honour as Steve Jobs and Mark Zuckerberg with a movie which most of us will make our children watch to make them think like chess masters, fight like tigers and take on the status quo.
Like how in 2000, the still “famously unprofitable” Amazon agreed a 10-year partnership agreement with corporate titan Toys R Us to be their exclusive online outlet, in exchange for selling only their toys and baby products.
Amazon, allowing the termination of the agreement so Toys R Us could launch their own independent online platform. And in 2009, Amazon paid Toys R Us $51m in damages for their wrong-doing.
Forget their sharp-elbowed conduct though.
What we immortalise is the shrewd and nimble entrepreneurial strategy that made a business line far more lucrative, put it well beyond the titan’s control and, with a final twist of the dagger, brought about their demise (Toys R Us filed for bankruptcy in 2018).
most companies not go for the latter? Because even if they have to pay the £30 (which in the back of their mind, they probably expect to at some level), it leaves them in a financially better position.
This is why litigation funders are not actually the source but merely the enabler of the growth in CAT claims, which are (if proven) the materialisation of the risks that corporates know they could face but hope to escape.
The titan paid the young pretender $50m a year plus a profit share to keep them in check. But when Amazon saw the success of toy sales online, they chose to ignore the agreement by allowing other sellers to list toys and baby products to maintain market share. Toys R Us sued and in 2006 a New Jersey court ruled against
Yet, a deeper movie might play on the darker theme at play – that as a general business strategy, it often pays to first make the money, get the power and then weaken the competition so that by the time their damaged competitors think about seeking justice, they are irreparably weakened. Frankly, if given the choice between paying £10 today to make £100 a year in a given market, or paying nothing today to make the same amount and maybe having to pay £30 a decade or so later only if successfully litigated against, why would
So, logically, knowing that the risk didn’t quite work out, they could just settle early doors and move on, knowing that while the net outcome was not as brilliant as they hoped for initially, nonetheless it worked out well.
But they rarely do. Why not?
If the SRA had the power, resources and scope to break down the fees earned on funded claims by all those involved, there is little doubt that such analysis would show the main beneficiaries of the “litigation funding gravy train” to be defendant law firms. (Ever hear that well-known story that in a room of defendant lawyers attacking litigation funding, a silk stood up to remind them to be careful what they wished for?)
And do all the above while making the client feel like they are driving the process and, on the other hand, building a steady recurring revenue of increasing fees from the client.
But the vast fees defendant lawyers have earned (which no doubt far outstrip what claimant lawyers have earned and even the profits funders have made over the years) is not just because they had more clients with more cases to defend. There is more than a strong hint that they have taken their corporate clients for a ride to maximise their own fees and clients’ aspirations to leverage litigation risk to further attempt escaping their wrongdoing – an uncomfortable truth only kept at bay by the very few notable successes that funders have had to date.
Put another way, the real puppet masters in CAT claims are not only the defendants but their chosen lawyers. Let’s just remind ourselves of the standard defence strategies used in funded claims.
Firstly, attack the funding structure in any way possible. Second, devise a strategy that drives up costs that dries up the funding, i.e. go for procedural blockage through numerous applications and interlocutory hearing; be awkward and inconsistent in interparty correspondence and strategy; make any accusations of conduct while doing everything possible to delay filing a defence; over-complicate disclosure to cause delay and inconvenience; try and break the record number of CCMCs in a single claim; and so on. Thirdly, do everything possible to add more stress and demands on the CAT to delay matters further. Fourthly, kick the “legal argument” can down the road to deal with, only if the funded claim survives all the above.
Morally questionable, commercially sensible and arguably a case study in good law firm management. But playing puppet master carries risk too. Of course if they get a successful result for their clients, then they have happy clients. But if they lose, a postmortem might reveal the uncomfortable truths about their strategy and ultimate motivations. (The SRA investigation into the solicitor’s handling of the subpostmaster’s case should make for fascinating reading in this regard.)
The end result may not be great for defendant law firms but for the industry, it could be very positive.
The concentration of defendant law firms (recall The Lawyer February 2024 analysis that showed 4 law firms were defending 45% of class actions in the CAT) should spread.
Poor conduct driven by self-motivations should become clearer through greater accountability of defendant lawyers in front of their corporate paymasters. But most importantly, the actual defendants, motivated by financial outcome rather than maximising legal fees, will become the true puppet masters again – which is the starting point of justice.
