Frequently Asked Questions

Berman Tabacco’s antitrust lawyers have a proven track record of successfully representing businesses, consumers and investors who have fallen victim to anticompetitive practices rising to the level of alleged antitrust violations. While not an exhaustive list, types of anticompetitive business practices Berman Tabacco has successfully litigated include price-fixing, market allocation agreements, monopolization, patent misuse, group boycotts, reverse payment or “pay-for-delay” schemes in the pharmaceutical industry and manipulation schemes involving benchmark interest rates and foreign currency exchange rates.

In addition to the basic conduct and source law discussed in the preceding sections, antitrust lawsuits, like other forms of business and consumer litigation, typically involve causes of action under several statutory provisions, both at the state and federal level.

Private antitrust lawsuits are frequently brought as class actions under Rule 23 of the Federal Rules of Civil Procedure or comparable state statutes. An antitrust class action is a lawsuit filed on behalf of a group of consumers or businesses who have suffered the same type of harm caused by the same bad conduct that violated the antitrust laws. Instead of each consumer or business bringing an individual action, one or more may bring an action on behalf of the entire proposed “class” against those companies or individuals who have allegedly violated antitrust laws causing injury to the class. It is common that a number of antitrust class actions are brought relating to the same events, especially following a government antitrust enforcement action. If these cases are federal and span different districts across the country, they are likely to be transferred to a single district under the multi-district litigation provisions that govern federal courts.

Antitrust class actions are brought by individuals or companies who have been injured by anticompetitive practices. A class action involving individuals is typically brought by a group of consumers who allege they were forced to pay too much for a product or service due to unlawful, anticompetitive practices by a seller. Antitrust class actions brought by companies might alternatively be filed by a company’s competitors based on allegations that the defendant-company engaged in unfair methods of competition, such as forming a monopoly, or engaging in other actions that unlawfully restrain trade.

In addition to the general requirements governing class actions under Rule 23 of the Federal Rules of Civil Procedure, to maintain an antitrust class action as a representative plaintiff on behalf of a class, a prospective plaintiff must also generally allege an “antitrust injury,” or a specific type of injury that the antitrust laws were intended to prevent, and must demonstrate that it is well-situated to serve as an “efficient enforcer” of the antitrust laws. Thus, a prospective antitrust class action plaintiff must show that its injury is more than merely speculative or the result of a defendant’s competitive failure and “stems from a competition-reducing aspect or effect of the defendant’s behavior.” Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344 (1990).

Antitrust class actions are litigated in federal and state courts throughout the United States. Berman Tabacco is a litigation firm with a nationwide practice and has over thirty years of experience prosecuting complex antitrust cases all over the United States.

All class actions have case-specific definitions for who makes up the class. In the antitrust context, that generally means anyone who suffered an injury as a result of a defendant’s anticompetitive practices during a specific time period. The class may be defined on a nationwide basis or a local or statewide basis. The number of individuals who may recover in an antitrust class action is limited by the class definition. However, even if you are a class member, you do not have to directly participate in the class action in order to participate in a recovery on behalf of the class (though, while claims could be released by you due to non-participation, you might nonetheless need to submit a claim to receive any money recovered).

The time between the filing of an initial complaint and the settlement or trial of an antitrust class action varies greatly depending on, among other things, the complexity of the case, the number of related suits, if any, and the number of cases on a judge’s docket. The typical antitrust class action lasts 3 years or even longer. Because it may be some time before any potential settlement is reached or there is a trial judgement, you should ensure that you retain documentation related to the litigation so you can participate in any recovery, if eligible. In the case of class action settlements occurring before trial, the time between settlement and payout to the class is not immediate, as the class must be properly notified and the settlement itself must be approved by the court and administered before money can be disbursed.

Typically, Berman Tabacco’s class action lawyers represent individuals and entities in antitrust class actions on a contingency fee basis, meaning we advance all attorneys’ fees and expenses in the litigation. If the case is successful, the firm will ask the court to award the firm attorneys’ fees and the reimbursement of expenses from any settlement fund. The court will approve the attorneys’ fee award only if it finds that the award is reasonable. If we are not successful, a representative plaintiff is generally not responsible for the reimbursement of attorneys’ fees or expenses.

Berman Tabacco has more than 30 years of experience in antitrust litigation and its antitrust litigators have recovered over $1 billion for aggrieved victims of anticompetitive practices. More information about some of Berman Tabacco’s notable class action settlements can be found here.

Consider contacting an experienced antitrust attorney if you suspect that antitrust laws are being violated. Lawyers at an experienced antitrust law firm should be able to assist you in such complex issues as investigating anticompetitive business practices, navigating legal precedent in the antitrust field, and providing legal counseling on whether an antitrust class action lawsuit should be filed.

If you believe antitrust laws are being violated, you may wish to research whether an enforcement action has already been filed by visiting the United States Department of Justice’s (DOJ) website. If you wish to report an antitrust violation, you can file a report through the DOJ’s website. The DOJ may investigate the facts stated in your report, but it will not provide you with legal advice on your claim.

Under federal securities laws, an investor generally can only recover that portion of their losses which is caused by the fraud. The determination of recoverable damages will vary based on the facts and the analysis of a damages expert. Class members are typically entitled to a pro-rata (i.e., proportional to total losses) share of a recovery based on their recognized loss as determined by a damages expert.

If you sell your securities after the securities class action is filed, you can generally still serve as a lead plaintiff and participate in any recovery on behalf of the class.

Depending on the facts of the case, you still may have recoverable damages.

Under the Private Securities Litigation Reform Act of 1995, a plaintiff who files a securities class action must publish a notice of that action alerting other purported class members that the class action is pending and that any member of the purported class may seek appointment as “Lead Plaintiff.” Such motion must be filed no later than 60 days after the notice is published.

After the 60-day deadline, the court decides which applicant is the most capable of adequately representing the interests of class members and appoints that person or entity as Lead Plaintiff. In determining who should be appointed Lead Plaintiff, the court will consider, among other things, which applicant has the largest financial interest in the case. What constitutes a significant financial interest varies case-by-case. In some cases, court-appointed Lead Plaintiffs have sustained millions of dollars in losses while in some smaller cases, court-appointed Lead Plaintiffs have sustained losses in the tens of thousands of dollars.

Generally, individuals and entities (or groups of individuals or entities) can serve as a Lead Plaintiff. There is no requirement that an individual have a sophisticated financial or legal background to serve as Lead Plaintiff.

A Lead Plaintiff has a duty to act in the best interest of the class. This includes selecting, monitoring, and overseeing Lead Counsel. Some other examples include the review of court filings on behalf of the class, discussing litigation strategies with Lead Counsel, attending depositions, attending hearings, and participating in mediation and the trial (if necessary). Most important, a Lead Plaintiff will have input into any decision concerning the settlement of the securities class action.

Under the Private Securities Litigation Reform Act of 1995, a Lead Plaintiff is only entitled to his or her pro rata share of any recovery and does not receive any additional payment for serving as a representative party on behalf of the class. However, in some circumstances, a court, in its discretion, may approve an award of “reasonable costs and expenses (including lost wages)” to a Lead Plaintiff which directly relates to the representation of the class.

Typically, Berman Tabacco represents individuals and entities in securities class actions on a contingency fee basis, meaning we advance all attorneys’ fees and expenses in the litigation. If the case is successful, the firm will ask the court to award the firm attorneys’ fees and the reimbursement of expenses from any settlement fund. The court will approve the attorneys’ fee award only if it finds that the award is reasonable. If we are not successful, you will not be responsible for the reimbursement of attorneys’ fees or expenses.

Berman Tabacco has more than 38 years of experience in securities litigation and has represented public pension funds and other institutional investors in this area since 1998. As reported by Cornerstone Research, the firm has successfully prosecuted some of the most significant securities class action lawsuits on record. The firm has been appointed lead or co-lead counsel in more than 100 actions, recovering billions of dollars on behalf of defrauded investors and the classes they represent under the Private Securities Litigation Reform Act of 1995.