Private Enforcement of Antitrust Law in the United States
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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.
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Chapter 2: Pre-complaint Activities

Craig C. Corbitt, Judith A. Zahid and Patrick B. Clayton


Craig C. Corbitt, Judith A. Zahid, and Patrick B. Clayton1 § 2.01 § 2.02 § 2.03 § 2.04 § 2.05 § 2.06 § 2.07 § 2.08 § 2.09 § 2.01 Introduction Meeting clients: Class and non-class actions Ethical restrictions and fee arrangements Investigative tools Financial considerations Defining the claims to be asserted Anticipating defenses Deciding where to file the case Conclusion 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 § 2.02 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 1 Mr. Corbitt and Ms. Zahid are...

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