Opt-Out Litigation | USA
Speaking in this Expert Focus podcast, Stuart Singer of Boies Schiller Flexner LLP discusses the value of opting out of antitrust class suits and bringing opt-out suits, explaining how companies can effectively pursue these claims.
More and more corporations are recognising that it is profitable to opt-out of antitrust class suits and bring opt-out claims. By doing so, the business controls the conduct and potential settlement of the litigation. Experience has shown that opt-out plaintiffs generally recover significantly more than companies that remain in the class. This podcast reviews how companies can ideally make the decision whether to opt-out and outlines how to pursue and manage such litigation.
Companies that opt out generally do several times as well in terms of recovery as those who stay as part of the class.
Factors to consider when opting out
First and foremost, standing is a prerequisite to opting out and bringing an individual action. US federal law only permits direct purchasers to bring a suit, whereas indirect purchasers may have standing under state laws. Then, parties will need to consider the strength of their claim, taking account of details such as:
- whether there has been a government investigation;
- whether there have been guilty pleas; and
- the strength of the evidence
Lastly, parties must consider the size of their claim, as opting out may be more preferable for larger claims, while remaining part of the class would be favourable for smaller claims.
Boies Schiller Flexner LLP
