Unpacking Antitrust: Can My Business Opt Out of an Antitrust Purchaser Class Action?
Author: Molly Donovan
The Short Answer: Yes. A class action is a procedural device that allows groups of similarly situated plaintiffs to sue together for efficiency reasons.
The class of plaintiffs in an antitrust case typically 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 will have purchased relatively small quantities of the goods or services at issue, it makes sense for them to litigate as a unit—each class member’s potential recovery is small relative to the cost each class member would incur if litigating alone.
But depending on the circumstances, individual businesses that purchased large quantities of the relevant good or service may want to opt out of an antitrust purchaser class action to pursue an individual recovery independent from the class.
How Do I Know If I’m a Member of an Antitrust Class? Large antitrust cases are in the news and so, if you’re a member of the relevant industry and/or purchased a large quantity of the product or service at issue, you’ll likely know about the lawsuit.
At some point, you’ll also receive a class notice or see a class notice appear in a major publication. The class notice will inform you that your business may be a member of the class and the notice will include a class definition.
For example, in 2007, a large antitrust litigation was filed involving the price-fixing of cathode ray tubes (called “CRTs,” the tubes that were used in the old boxy TV sets and computer monitors).
In that case, a class of “direct purchasers” was certified to include “all persons and entities who purchased a CRT Product in the United States from any defendant.” So, 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 may opt out.
Should I Opt Out? It depends. If your business purchased a large quantity of the products or services at issue, you should consider whether you (i) want to participate in the litigation and/or (ii) think you’ll recover more on your own.
In the CRT case, many businesses did decide to opt out, including Best Buy, Target, Circuit City and others. These businesses generally purchased very large quantities of CRT Products from the defendants during the relevant period—so they had a big stake in the litigation.
Some opt outs, like Best Buy in the CRT case, litigate very actively —taking on a leadership role among the various plaintiffs who are prosecuting the case. Other opt outs file their own lawsuit, but take on a more passive litigation role, letting other plaintiffs take the lead.
Still other opt outs aren’t interested in litigating at all—perhaps for business or publicity reasons—but they’ve determined that they have a better chance of reaching a more favorable resolution if they negotiate on their own—rather than with the class. In these situations, businesses sometimes chose to privately approach the defendants to individually negotiate a resolution outside of court. As part of that negotiation, the defendants probably would require the claimant to opt out (so that defendants don’t pay the same damages twice).
When Can I Opt Out? Typically, there are two opportunities to opt out: when the class is first certified and when the class has reached a settlement with the defendants. If you want the opportunity to participate in the litigation in real time, you need to opt out at the first opportunity, i.e., when the class is certified.
Otherwise, you’ll be considered part of the class at least until the class lawyers reach a proposed settlement with the defendants. Once the judge preliminarily approves a class settlement, notice of the settlement is issued and class members have a second opportunity to opt out.
Businesses that do opt out won’t receive a portion of the class settlement. Instead, they can litigate or negotiate to try to do better on their own.
Businesses that don’t opt out are eligible to receive some portion of the class settlement and probably will be barred from pursuing anything additional on their own.
How Do I Opt Out? The class notice will provide instructions.
What If I’m Not Sure—I’m Not As Big as a “Best Buy” But I Did Make A Lot of Purchases? We don’t 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 proceed individually. We have significant experience representing defendants in class actions—which is helpful in representing a plaintiff, i.e., we’ve seen the defense-side playbook and can use that to our client’s advantage.