Antitrust Unwrapped: Can My Business Opt Out of an Antitrust Buyer Class Action Lawsuit? – Antimonopoly rules, EU competition

Short answer: Yes. HAS three days of action is a procedural device that allows groups of similarly situated plaintiffs to sue together for efficiency reasons.

A class of plaintiffs in an antitrust case usually consists of businesses and/or consumers who purchased the same goods or services affected by the antitrust violation (usually price fixing). Because many businesses and most consumers have purchased relatively small amounts of the goods or services at issue, it makes sense to litigate as a whole—the potential recovery for each class member is small relative to the costs each class member would incur if they litigated alone. .

But depending on the circumstances, individual businesses that have purchased large quantities of the relevant goods or services may want to opt out of the buyer’s antitrust class action pursue individual recovery independent of class.

How do I know if I am a member of an antitrust class? Major antitrust cases are in the news, so if you are a member of the relevant industry and/or have purchased a large amount of the product or service in question, you will likely be aware of the litigation.

At some point you will also receive a course announcement or see a course announcement in a major publication. The class notice will tell you that your business may be a member of the class, and the notice will include a definition of the class.

For example, in 2007 a major antitrust case was filed regarding the price fixing of cathode ray tubes (called “CRTs”, the tubes used in old box TVs and computer monitors).

In that case, a class of “direct purchasers” was certified to include “all persons and entities who purchased CRT product in the United States from any defendant.” Therefore, if your business purchased CRT products from one of the named defendants during the relevant time period, you were included in the class definition.

Can any class member opt out? Yes, any person or business that is included in the class definition can opt out.

Should I log out? It depends. If your business has purchased large quantities of affected products or services, you should consider whether (i) they want to participate in a lawsuit and/or (ii) you think you can heal more on your own.

In CRT’s case, many businesses have opted out, including Best Buy, Target, Circuit City and others. These businesses typically purchased very large quantities of CRT products from the defendants during the relevant period – so they had a large stake in the litigation.

Some opt-outs, like Best Buy in the CRT case, are very active in litigation — taking a lead role among the various plaintiffs prosecuting the case. Other nonparticipants will file their own suit, but take on the role of a more passive litigant and let other plaintiffs take the lead.

Still other nonparticipants have no interest in litigation at all—perhaps for business or promotional reasons—but figure they have a better chance of reaching a more favorable settlement if they negotiate alone—rather than with a class. In these situations, businesses sometimes choose to privately approach defendants to individually negotiate out-of-court settlements. As part of this negotiation, the defendants would likely require the plaintiff to disagree (so that the defendants don’t pay the same damages twice).

When can I unsubscribe? There are usually two ways to opt out: when the class is first certified and when the class reached a settlement with the defendants. If you want to be able to participate in the litigation in real time, you must opt ​​out at the first opportunity, i.e. when the class is certified.

Otherwise, you will be considered part of the class at least until the class attorneys reach a proposed settlement with the defendants. Once the arbitrator preliminarily approves the class settlement, a notice of settlement is issued and class members have a second opportunity to opt out.

Businesses that opt ​​out will not receive a portion of the class settlement. Instead, they can litigate or negotiate to try to do better themselves.

Businesses that do not opt ​​out are entitled to receive a portion of the class settlement and will likely be prevented from pursuing anything else on their own.

How can I unsubscribe? The instructions will include a class announcement.

What if I’m not sure – I’m not as big as “best buy” but I bought a lot? We do not represent classes or individual consumers, but we can help businesses weigh the pros and cons of opting out and then represent them if they choose to do so on an individual basis. We have significant experience representing defendants in class actions—which is helpful when representing the plaintiff, i.e. we have seen the playbook for the defense and can use it to our client’s advantage.

The content of this article is intended to provide a general guide to the issue. Professional advice should be sought regarding your particular situation.

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