Christopher Rother, managing partner of Hausfeld in Berlin, is one of the pioneers of private enforcement in Germany and Europe, having been involved in many landmark antitrust cases. Prior to Hausfeld, Christopher spent almost two decades as part of the Deutsche Bahn (DB) legal team, including the last 10 years as head of the regulatory, competition and antitrust department. Christopher has developed an impressive and unparalleled track record of competition and antitrust litigation matters by setting up a very profitable unit within DB dealing exclusively with DB’s global business needs in competition litigation, handling cases worth over €1 billion across multiple jurisdictions.
WHAT DREW YOU TO FOCUS YOUR PRACTICE ON COMPETITION LAW?
I have practised competition law for almost 30 years now. The increasing importance of competition law for businesses in practically all industries, on both national and global levels, has always fascinated me. That is why I have focused throughout my entire professional career, both in-house and in private practice, on competition law. In the past 10 years, my primary focus was on private enforcement of competition law, which adds a strong litigation skillset to the competition law background.
WHAT HAS BEEN YOUR MOST CHALLENGING CASE TO DATE, AND WHY?
On the defence side, most challenging were cases with multiple competition authorities throughout the globe investigating the same global cartel. For me, the most prominent example in that regard was the freight forwarders cartel. On the claimant side, the cases that are most challenging have hundreds and sometimes thousands of corporate victims (small and medium-sized companies, and big multinationals) that pursue their damage claims against cartelists in relation to the case in various jurisdictions. The Air Cargo case was one such case I was involved in. Multi-jurisdictional cases are challenging because of the fundamental differences in procedural law, and the requirements of civil law in relation to settlement cultures across different jurisdictions. Each one requires an entirely different approach and strategy in relation to the very same set of fact at the core of the case. Accordingly, the results that can be accomplished for clients in these cases vary from jurisdiction to jurisdiction. In some jurisdictions, you can negotiate settlements in a relatively short period of time; in others, you can litigate for ever and end up stuck with procedural issues that lead nowhere. You have to work on the right strategy at the very beginning of such a case, because it is very difficult and costly to change direction once you are in the middle of the process.
HOW HAS THE INTERNATIONAL COMPETITION MARKET CHANGED SINCE YOU STARTED PRACTISING?
In the late 1980s, when I started practising competition law, there was hardly any enforcement, public or private, on a European level. And very few member states had a functioning competition authority like the German Federal Cartel Office at the time. For me, it was fascinating to see what a success story competition law and its enforcement has become in Europe and on a global level. One important pillar for the amazing success of competition law was the establishment of effective merger control regimes at an EU level, in European member states and, subsequently, in practically all major jurisdictions worldwide. Public enforcement of competition law had a major boost in the early 2000s when competition authorities established leniency programmes which proved very effective. At the same time, competition authorities – the European Commission above all – raised fines for cartels to unprecedented levels which forced the corporate world to take competition law very seriously. Today, you will hardly find a company without an antitrust compliance programme in place. Compliance culture has also changed the attitude towards cartels in the corporate world. Today, most companies follow the example of pioneers such as Deutsche Bahn or Michelin and vigorously enforce their claims if they have become victims of anti-competitive behaviour.
WHAT IMPACT HAS THE NINTH AMENDMENT BILL TO THE GERMAN ACT AGAINST RESTRAINTS OF COMPETITION HAD ON YOUR PRACTICE?
Since the seventh Amendment Bill to the German Act Against Restraints of Competition came into force in 2005, Germany has been considered a claimant friendly jurisdiction when it comes to follow-on claims. The transposition of Directive 2014/104/EU into German law by the ninth Amendment Bill paved the way for a more level playing field on private enforcement. As always, however, the new regulations on damage actions transposed into German law have turned out to be quite complex and many tricky issues will require final verdicts at Supreme Court level. Overall, we will see more follow-on and sometimes even stand-alone cases brought in Germany than in the past.
THE GERMAN M&A MARKET HAS BEEN VERY ACTIVE IN RECENT YEARS. WHAT IS DRIVING THIS?
The core of German industry is not big multinationals but medium-size firms with highly specialised know-how – these are often world leaders in their very niche field of business. Such companies are interesting targets for both strategic and private equity investors. In times of a continued zero-interest policy among central banks with overpriced real estate and stock markets, investors look favourably at the German M&A market. However, as a firm we are only involved in the merger control side of the M&A market, not in the corporate and transaction side of it.
HOW DOES HAUSFELD DISTINGUISH ITSELF FROM THE COMPETITION IN THE MARKET?
Hausfeld is a global law firm but not a full-service provider that would cover all type of legal services such as corporate, taxes or HR. Instead, we focus on the things we are good at: competition law and complex legal disputes. Our international reach enables us to advise across multiple jurisdictions and pursue claims on behalf of clients worldwide. We work closely with clients to deliver outstanding results, while always addressing their business concerns. We do so by anticipating issues, considering innovative strategies, and maximising the outcome of legal disputes in a way that creates shareholder value. Our litigation practice goes far beyond follow-on competition litigation cases and covers securities cases as well as complex commercial litigation and arbitration. In civil law jurisdictions, we bridge the cultural gap between third-party funders that traditionally have a common law background and focus, and big German and European clients who normally would not have access to funding. Following Hausfeld’s market entry into Germany in January 2016, all major litigation funders have become active in the German market and have committed considerable funds to litigate in Germany.
YOU HAVE HAD A VERY DISTINGUISHED CAREER TO DATE. WHAT WOULD YOU LIKE TO ACHIEVE THAT YOU HAVE NOT ALREADY?
One of the major downsides of most European jurisdictions, except for the UK, is the lack of adequate means of collective redress. As a practitioner you are bound by the limitations set forth by lawmakers, and always try to make the best of it for your clients. What I would like to achieve is to shape legislation on collective redress based on almost 30 years of experience as a competition lawyer. In that regard, reaching out to lawmakers at EU and national levels, to consumer and environmental organisations (and other NGOs), and, of course to the media, is vital for success. And that has been one of my priorities since I was appointed managing partner of our firm in Germany in January 2016. Political lobbying is slow and a long-term project. But there was some remarkable progress recently and, eventually, we will see a new landscape of collective redress mechanisms in Europe. There will never be something like a US style opt-out class action in Europe, and I am not even sure that it would be something we should wish for. However, what we will see are opt-in group actions, which are easy to set up and uncomplicated to join online, with access to third-party funding that will also provide for means of collective settlement procedures in Germany and other European civil law jurisdictions. Again, we are not there yet, but we are working on it.
WHAT IS THE SECRET TO YOUR SUCCESS?
No secret whatsoever. If you practise competition law for almost 30 years, like I have, you should halfway know what it is all about, shouldn’t you? What is vital, though, is a team-focused approach. I am neither an economist nor an IT expert, but to serve clients in complex legal disputes we have to set up a team of experts in various disciplines such as econometrics, forensic IT, privacy and regulatory issues, etc. As a competition lawyer you can add some value to such a team but, eventually, it is the quality and the professionalism of the overall team that makes the difference.