Private Enforcement of Antitrust Law in the United States

Private Enforcement of Antitrust Law in the United States

A Handbook

Edited by Albert A. Foer and Randy M. Stutz

Private Enforcement of Antitrust Law in the United States is a comprehensive Handbook, providing a detailed, step-by-step examination of the private enforcement process, as illuminated by many of the country’s leading practitioners, experts, and scholars.

Chapter 12: Settlement Practice from Both a Plaintiff and Defense Perspective

Joseph Tabacco and Scott Martin

Subjects: law - academic, competition and antitrust law, law -professional, competition and antitrust law


Joseph Tabacco1 and Scott Martin2 § 12.01 Introduction: A unique landscape for settlement § 12.02 Windows of opportunity: When to engage in settlement discussions 12.02.1 Pre-complaint settlements 12.02.2 Settlement at the pre- and post-motion to dismiss or class certification stage 12.02.3 Breaking the ice 12.02.4 Last call: Settlements after close of discovery but before trial § 12.03 The players involved: Shaping the table and filling the seats 12.03.1 Businesspersons and experts 12.03.2 Facilitators 12.03.3 Settlement counsel § 12.04 Multi-party and multi-jurisdictional cases: Strategic complications 12.04.1 For the plaintiffs: “Picking from” and “picking off” multiple defendants 12.04.1(a) Cases arising from DOJ investigations 12.04.1(b) Cases where there is no pending governmental proceeding or investigation 12.04.2 For the defendants: Breaking up can be hard to do 12.04.2(a) Joint defense and judgment sharing agreements 12.04.2(b) Most favored nation (“MFN”) provisions 12.04.3 Multiple jurisdictions and “global peace” § 12.05 Class settlement considerations 12.05.1 Scope of claims settled and released 12.05.1(a) Due process concerns 12.05.1(b) Prospects of certifying a settlement class 12.05.1(b)(1) Direct purchaser vs. indirect purchaser classes 12.05.1(b)(2) Rule 23(a): Numerosity, commonality, typicality and adequacy 12.05.1(b)(3) Predominance 1 Joseph Tabacco is managing partner of the San Francisco office of Berman DeValerio. He is grateful for the very substantial contributions of his colleague Matthew Pearson to this chapter. 2 Scott Martin is a shareholder in the New York office of Greenberg Traurig, LLP. 305 M2937 - FOER 9780857939593 PRINT.indd 305 31/07/2012 10:45 306 Private enforcement of antitrust...

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