Opt-Out Antitrust Litigation
Class action notices regularly appear on the desks of in-house counsel, often referencing settlements with suppliers accused of having unlawfully fixed prices with competitors in violation of U.S. antitrust law. Some such notices may involve products or services that are a small part of a corporation’s business and promise little tangible return. Others, however, may represent substantial revenue enhancing opportunities to sophisticated corporate counsel.
When an important business relationship or significant dollars are at stake, a corporation should not sit idly on the sidelines and hope class counsel will adequately represent its interests. Collaboration with experienced antitrust counsel who will consider and advocate with the company’s unique objectives in mind is imperative in order to maximize return on the litigation above and beyond any class settlement.
For two decades, Butler Rubin has assisted corporate counsel and their organizations in assessing opt-out risks and rewards, and making well-informed decisions about whether or not to opt-out of antitrust class litigation.
Many opt-out decisions need to be made quickly and without complete information. Drawing on its broad experience, Butler Rubin helps clients make accurate assessments of the potential upside to opting out of an antitrust class action. Key questions in this stage of the process include: How much of the product did your company purchase during the period of alleged conspiracy? Were the purchases from the defendants or from other suppliers? What happened to the prices your company paid for the product during the alleged conspiracy? What business relationships does the company have with the defendants that may impact your decision to sue rather than remain in the relative anonymity of the class?
Conducting a quick-look analysis, often in coordination with economic experts, is critical to assessing the risk/reward in proceeding as an opt-out plaintiff. Butler Rubin helps clients analyze: Is the proposed class settlement fair to you given what is known about the merits of the case? How much will it cost in terms of attorney’s fees, litigation expenses and company time to litigate the case on your own or as part of a direct action plaintiff group? What is the likely recovery in the class versus as an opt-out?
Butler Rubin has served as trial counsel in some of the most significant opt-out antitrust litigation to date, including In Re: Linerboard Antitrust Litigation and In Re: Vitamins Antitrust Litigation. We work closely with industry experts to evaluate possible damages and recoveries. We also carefully monitor antitrust enforcement efforts and class action litigation to identify potential revenue enhancing opportunities for our clients.
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