Antitrust Opt-Out and Direct-Action Recovery

Bona Law represents businesses deciding whether to opt out of antitrust class actions and, when the answer is yes, prosecutes their individual damages claims as direct-action plaintiffs. We litigate antitrust on both sides: we won summary judgment defending a processor in a nationwide price-fixing MDL, and we have helped recover tens of millions of dollars for plaintiff companies against dominant firms. We know how these cases are built because we build them, and we know how they are defended because we defend them. And because we are independent of the platform giants, we can evaluate — and bring — claims that much of the antitrust bar cannot.

If your company buys at scale in an industry accused of price fixing, or sells through a platform that a court has already found to be a monopolist, you may already be a member of an antitrust class. Staying in the class costs nothing and requires nothing. It also means accepting a pro rata share of a settlement priced to the whole class, on class counsel’s timeline, with no say in the outcome. Companies with significant purchases can instead exclude themselves — opt out — and pursue their own claim: on their own damages, their own schedule, and their own terms. Firms that concentrate on opt-out litigation report that their clients recover multiples of what the class recovers, and in a 2025 survey of 301 in-house lawyers at companies with more than $50 million in revenue, 71% believed opting out would have increased their recovery by more than a quarter — while 62% said their companies usually stayed in anyway, and 73% named litigation cost as the reason.

Opting out is not right for every company. It converts a passive class member into a party with discovery obligations, expert costs, and business relationships to manage, and an opt-out that misjudges its claim can do worse than the class. The decision deserves independent advice from made before the exclusion deadline on the notice.

Why Bona Law

We know how these cases are defended. Our attorneys have defended antitrust class actions and MDLs for decades, including the summary judgment we won for Foster Farms in the nationwide turkey price-fixing MDL and the denial of class certification we secured in the Capacitors MDL. A direct-action plaintiff benefits from counsel who has sat on the other side of the table and knows which arguments defendants believe and which they fear.

We build affirmative antitrust cases against much larger companies. On the plaintiff side, our record includes the $24 million settlement Lucasys secured in its exclusionary-conduct case against PowerPlan, the published Tenth Circuit reversal in Chase Manufacturing v. Johns Manville, and the monopolization case we brought against Amazon on behalf of Zulily. We have also won a published Ninth Circuit decision on antitrust standing for a plaintiff client. Learn more about our Antitrust Litigation and Monopolization and Exclusionary Conduct practices.

We are independent. Many of the most valuable purchaser and follow-on claims today run against the world’s largest platforms and the same handful of frequent antitrust defendants — companies that much of the antitrust bar represents and therefore cannot sue. Bona Law is independent of the platform giants and other companies that dominate antitrust dockets. Every engagement remains subject to a conflicts check, and we will tell you promptly if we cannot take yours.

We will tell you no. Contingency firms screen claims to decide whether to invest in them; funders assess claims to price a stake. Neither is advice to you. Our independent antitrust claim evaluation is — and litigation finance companies retain us to assess the strength and risks of antitrust claims for exactly that reason.

We know the doctrine that decides purchaser cases. Purchaser cases turn on a handful of recurring questions: who may sue under Illinois Brick and Apple v. Pepper, whether a plaintiff has suffered antitrust injury, which state's law governs a multi-state class, whether a certification order can be taken up on a Rule 23(f) appeal, and when tolling keeps a claim alive. They also turn on the head start an affirmed liability judgment offers a later plaintiff through collateral estoppel. Our attorneys write about these issues and have litigated them.

Boutique economics, national reach. Offices in San Diego, New York, Dallas, Detroit, and Minneapolis; more than 15 antitrust specialists without the overhead of a global firm; and a standing practice of teaming with other firms whose clients hold antitrust claims.

Representative Experience

In re Turkey Antitrust Litigation (N.D. Ill.). Summary judgment victory for Foster Farms in the nationwide turkey price-fixing MDL.
In re Capacitors Antitrust Litigation (N.D. Cal.). Defense of a Japanese capacitor manufacturer; the court denied the indirect-purchaser plaintiffs’ motion for class certification against our client, holding that variations in state law across the proposed 31-state class defeated predominance.
Lucasys, Inc. v. PowerPlan, Inc. (N.D. Ga.). Represented Lucasys in a Section 2 monopolization case against a software company controlling roughly 99% of its market; after more than four years of litigation the case resolved in a $24 million settlement plus injunctive relief.
Chase Manufacturing, Inc. (d/b/a Thermal Pipe Shields) v. Johns Manville Corp. (D. Colo.; 10th Cir.). Secured a published Tenth Circuit reversal reinstating the monopolization claims.
Zulily LLC v. Amazon.com, Inc. (W.D. Wash.). The monopolization case we brought against Amazon on behalf of Zulily, alleging anti-discounting practices and anticompetitive agreements that suppressed retail price competition; the core monopolization and anti-discounting claims survived Amazon’s motion to dismiss.
Antitrust claim assessment for litigation finance companies. Advised litigation finance companies on the strength and risks of potential antitrust claims, including liability theories, market definition, damages, and litigation-risk factors relevant to funding decisions.

When Companies Call Us

You received a class notice — or read about a certified class or proposed settlement — in an industry your company buys from, and the exclusion deadline is running.
A supplier, or a group of suppliers, has pleaded guilty or been found liable for price fixing, bid rigging, or market allocation, and you want to know what your company’s purchases are worth as a claim.
A court has found a platform your company depends on to be a monopolist — as in the Google decisions and the Google Play litigation — and you are weighing a follow-on claim while the liability findings are fresh.
Your company was too large to be in the class. Class definitions sometimes stop at a revenue or volume ceiling. The developer class in the Google Play litigation, for example, reached only developers earning roughly $2 million a year or less through the platform, while the consumer and state settlement that received final approval in 2026 was $700 million. A company above the ceiling was never a class member, never released anything, and had no opt-out deadline to miss. It holds its claim outright, subject only to the statute of limitations. Our analysis of the Google Play settlement walks through who fits that description.
You are a member of a class in which a settlement has been proposed, and you need to decide whether to claim, object, or exclude yourself — and what each choice gives up.
A contingency firm, a claims aggregator, or a litigation funder has approached you about your claim, and you want advice from someone who is not seeking a piece of it.
You are outside counsel to a company in one of these situations and want an antitrust specialist to evaluate the opt-out question — or to co-counsel the direct action — without displacing your client relationship.

Opt Out or Stay In? The Decision Comes First

Most of our opt-out engagements begin the same way: with an independent evaluation of whether excluding your company from the class is worth it. The evaluation is privileged, it is scoped to the deadline on your notice, and its fee does not depend on the answer. It covers the questions that actually decide the choice:

Your standing and your purchases. Did your company buy directly from the alleged conspirators, or through distributors and other intermediaries? Under Illinois Brick, only direct purchasers can recover damages under federal law; indirect purchasers must rely on the states that have repealed that rule by statute. Two refinements often change the answer. The co-conspirator exception can make a company that bought through an intermediary a direct purchaser if the intermediary was part of the conspiracy. And a company that sells through a platform and pays its commission is a direct purchaser of the platform's services — the position of the app developers in the Google Play litigation.
What the claim is worth. A realistic estimate of your overcharge damages from your own purchasing data, what trebling does and does not mean in practice, and how that number compares to a reasonable estimate of your share of the class recovery.
How strong the case is. Guilty pleas, government findings, the state of the class record, and the defenses that have succeeded.
Timing. The four-year statute of limitations, fraudulent-concealment tolling, and the American Pipe tolling that protects class members’ claims while the class is pending — and which deadlines may already be running against you.
The burden. The documents, data, and witnesses a direct action will require of your company; the supplier relationships it may affect; and the possibility that class counsel will seek a share of opt-out recoveries.
Your options. Staying in and claiming; opting out and negotiating without filing; opting out and filing your own case; joining an existing group of direct-action plaintiffs; or monetizing the claim.

What a Direct Action Involves

A company that opts out and sues becomes a direct-action plaintiff — usually litigating in the same multidistrict proceeding as the class, before the same judge, but with its own counsel, its own damages model, and its own settlement leverage. The advantages are real: you control strategy and settlement, you are not bound by class certification fights or by class counsel’s allocation of a settlement, you can add defendants or claims the class did not pursue, and defendants price the risk of a separate trial. It is the route the largest developers in the Google Play litigation took, litigating their own claims against Google rather than sharing in a class recovery. The obligations are equally real: your company produces its purchasing records and its people sit for depositions, you retain your own economists, and the case runs on the MDL’s schedule, which is often measured in years. Late opt-outs can sometimes ride on discovery the class has already taken; they also face restrictions on duplicative discovery and, in some courts, requests that they contribute to class counsel’s fees. We explain all of it before you decide, and we structure the case so that the economics work for a company of your size.

Fees and Funding

The question that decides most opt-out cases is asked before the exclusion deadline: can we afford this? Our answer has three parts. The evaluation itself can be a fixed fee. For the direct action, we consider hybrid and contingency arrangements for the right case, alongside ordinary hourly work. And we have experience working with litigation funders: we understand how they evaluate antitrust claims, and our written assessments are built to answer their diligence questions if you choose to fund the case or monetize the claim. The Clayton Act awards prevailing plaintiffs treble damages and reasonable attorneys’ fees, which is what makes a strong direct action economical to bring.

Frequently Asked Questions

Can my business opt out of an antitrust class action? Yes. Any person or business within the class definition may exclude itself, typically when the class is certified and again when a settlement is proposed. The notice states how and by when. Read more.

Our company was never in the class — the class definition excluded companies our size. Do we still have a claim? Often, yes — and with no opt-out deadline to worry about. A company outside the class definition released nothing and is bound by nothing in the class settlement. Its claim is limited only by the statute of limitations. Our analysis of the $700 million Google Play settlement uses larger app developers as an example of how this works.

How do we know whether we are direct or indirect purchasers? It depends on whom you bought from, not what you bought. Direct purchasers hold federal damages claims; indirect purchasers generally recover under the laws of the states that have repealed Illinois Brick. Some companies are both, and the answer shapes the value of the claim.

What does it cost to find out whether we should opt out? A fixed fee, quoted before we begin and scaled to the complexity of the claim and the time before your deadline. The fee does not depend on the answer. Learn more about our independent antitrust claim evaluation.

Can we opt out without going to court? Sometimes. Some companies exclude themselves in order to negotiate directly with defendants, or to join an existing group of direct-action plaintiffs. Those options are part of every evaluation.

Will class counsel take a share of our recovery if we opt out? Not automatically, but the question is being litigated: in at least one major settlement, class counsel has asked the court for a percentage of opt-out plaintiffs’ future recoveries. We account for that risk in the evaluation.

Do you take direct actions on contingency? For the right case, we consider hybrid and contingency arrangements, and we have experience working with litigation funders. The evaluation comes first, and you are never obligated to go further with us.

You also defend antitrust cases. Is that a problem? It is usually an advantage — it is how we know how these cases are defended. Every engagement is subject to a conflicts check, and we will tell you promptly if we cannot take your matter.

Industries

Opt-out and direct-action claims arise wherever businesses buy at scale from concentrated suppliers or depend on dominant platforms. We bring industry background to them: agriculture and food, retail, e-commerce, and consumer products, healthcare, pharmaceuticals, and medical devices, construction and building materials, software and technology, automotive and transportation, energy and commodities trading, real estate and housing, and telecommunications and platforms.

Resources

Talk to Us Before the Deadline
If your company has received a class notice, buys from an industry under investigation, or depends on a platform a court has found liable, contact us or call 858-964-4589. If you are counsel to such a company, our co-counsel page explains how we work alongside you. Either way, the first step is usually an independent antitrust claim evaluation, quoted at a fixed fee before we begin.