The International Handbook on Private Enforcement of Competition Law

The International Handbook on Private Enforcement of Competition Law

Elgar original reference

Edited by Albert A. Foer and Jonathan W. Cuneo

With the international community on the brink of an explosion of private remedies for violation of national competition laws, this timely Handbook provides state-of-the-art analysis of the private enforcement of competition laws across the globe. Private enforcement of antitrust is becoming a significant component of competition policy laws worldwide; today, more than a hundred jurisdictions have adopted market regimes operating within a framework of competition law, providing a varied base for developing ways by which persons injured by anticompetitive conduct will (or will not) be able to obtain remedies.

Chapter 5: Pre-claim Activities

Craig Corbitt, Judith Zahid and Patrick Clayton

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

Extract

Craig Corbitt, Judith Zahid and Patrick Clayton1 Introduction The lofty goals of antitrust are not self-executing. They require careful planning and preparation by plaintiffs’ counsel and the client. Most antitrust litigation is highly complex, takes years to resolve, and is very expensive. Success in an antitrust case starts with the right plaintiff, with the right claim. This chapter describes how private antitrust litigation typically begins, including client contact and retention, pre-filing investigation, and strategic considerations that typically are considered in determining the specific claims to file, and equally importantly, where to file them.2 Meeting clients – class and non-class actions There are two common ways for the potential antitrust plaintiff and the antitrust lawyer to get together. First, a potential plaintiff who perceives an unfair competition issue may contact an antitrust lawyer, either directly or through a referral from a nonantitrust lawyer, to find out whether there is a basis for a claim. Second, especially in class actions, an antitrust lawyer who is aware of a potential claim may search for a potential plaintiff, subject to certain ethical restrictions discussed below. The former is the more traditional way, while the latter is a more recent trend that sometimes has been met with criticism. Both are central to private antitrust enforcement in the United States. A variety of individuals and companies may seek out an antitrust lawyer. For example, a project manager who senses that a competitive bidding process is not yielding competitive bids, a company that has been cut off from...

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