May 26, 2015 Articles

Whether to Opt Out of Antitrust Class Actions: A Four-Step Checklist

What is your company's process for deciding whether to opt out of antitrust class actions?

By Charles H. Samel and Cori Gordon Moore – May 26, 2015

From the headlines: “Jury Awards Costco $110 Million in LCD Price-Fixing Trial”; “Google Sues Visa, MasterCard after Opting Out of $5.7B Antitrust Settlement.”

There is nothing new about corporate victims of antitrust violations, such as price-fixing or monopolization, asserting their rights and attempting to recover treble damages. For a single antitrust claim, a corporate plaintiff can potentially recover tens or even hundreds of millions of dollars in damages through settlement or trial in cases initiated on their own or by opting out of antitrust class actions and litigating directly against the defendants. What seems to have changed, however, is that the historical reluctance of corporations to sue important suppliers or customers has diminished. At the same time, U.S. and global cartel and antimonopoly enforcement has steadily increased. This has resulted in a greater number of investigations, grand juries, criminal indictments, fines, penalties, and prison sentences—as well as follow-on civil litigation, including class actions—against the alleged perpetrators than ever before. See U.S. Dep’t of Justice, Antitrust Division, Workload Statistics 2004–2013; U.S. Dep’t of Justice, Antitrust Division, Division Update—Criminal Program (Spring 2014).

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