Competition/Antitrust

In a nutshell

It is the job of the UK and EU regulatory authorities to ensure that markets function effectively on the basis of fair and open competition. The rules in the UK and EU are substantially similar, but the UK bodies concentrate on those rules that have their greatest effect domestically, while EU authorities deal with matters affecting multiple member states. The UK regulators are the Office of Fair Trade (OFT) and the Competition Commission; on matters also affecting other EU countries, it is the European Commission. Additionally, there are industry-specific regulatory bodies, such as Ofcom for the media and telecoms industry.

Competition authorities have extensive investigative powers – including the ability to carry out dawn raids – and can impose hefty fines. The OFT has become more proactive and litigation-minded in recent years, and you will certainly have heard about Intel’s run-in with the European Commission.  

What lawyers do

• Negotiate clearance for acquisitions, mergers and joint ventures.
• Advise on the structure of commercial or co-operation agreements to ensure they can withstand a competition challenge.
• Deal with investigations into the way a client conducts business.
• Bring or defend claims in the Competition Appeal Tribunal (CAT).
• Advise on cross-border trade or anti-dumping measures (preventing companies exporting products at a lower price than it normally charges in its home market).
• Regulators investigate companies, bring prosecutions and advise on the application of new laws and regulations.

The realities of the job

• You won’t get much independence; even junior lawyers work under the close supervision of experienced partners. In the early days the job involves a great deal of research into particular markets and how the authorities have approached different types of agreements in the past.
• You need to be interested in economics and politics.
• The work demands serious academic brainpower twinned with commercial acumen.
• As a popular area of practice it’s hard to break into. Competition-specific studies – say a master’s degree – will enhance your prospects.
• Advocacy is a relatively small part of the job, though you could end up appearing in the High Court or CAT.
• In international law firms you will travel abroad and may even work in an overseas office for a while, perhaps in Brussels, which is the hub for European competition work. Fluency in another language can be useful.

Current issues

• Competition law continues to increase its profile as greater regulatory activity is undertaken by the UK, EU and USA. The European Commission’s record-breaking €1.06bn fine slapped on computer chipmaker Intel made headlines around the world, while the OFT recently ordered airlines and other travel companies to abolish hidden fees for paying by debit card.
• The OFT came under criticism after its four-year criminal case against British Airways for price fixing with Virgin Atlantic collapsed in early 2010. It folded after the OFT failed to disclose key documents. The OFT has come under pressure to reform its approach to offering immunity in return for full co-operation in investigations, as it did with Virgin. Critics have said the agency should perform more of its own investigations, rather than relying on the whistle-blowers. Notably, 2011 has seen more of these 'own-initiative' investigations.
• The recession has caused a dip in merger control work, but there is plenty of cartel and competition litigation work to be had, particularly in damages actions.
• US authorities are particularly active in pursuing cartels. In July 2010, Ian Norris, former CEO of UK company Morgan Crucible, was convicted of conspiring to obstruct justice over price-fixing charges brought against him.
• Competition lawyers are increasingly drawing on the experience of colleagues, such as financial regulation, tax and litigation specialists. They are also bringing in experts to address white-collar crime aspects.
• The remit of the CAT has been widened to allow claims for damages brought by third parties. Private enforcement can be a useful tool for competitor businesses and consumer groups, but thus far has had limited success.
• There are increased opportunities to work for the regulatory authorities; the OFT, for example, employs many more investigators than before. There is also a trend for lawyers to switch between private practice and working for the regulators.
• As the technology sector continues to grow it's coming under increasing scrutiny from regulators. Google is currently facing nine EU competition complaints – one of them filed in March 2011 by rival Microsoft, itself a long-time target of competition disputes.
• Online service providers are also increasingly on the OFT's radar, especially for misleading pricing infringements.

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