In the early hours of Feb. 14, 2006, all hell broke loose in the air cargo carrier industry. EU antitrust officials carried out unannounced raids on the offices of carriers including Air France-KLM, Cargolux Airlines, British Airways and SAS, searching for evidence that would prove allegations of widespread price fixing. Regulators from Asia and the U.S. soon followed with their own investigations--raising suspicions of a massive global cartel.
But regulator inquiries and potential indictments were only the start of the carriers' worries. In the wake of the investigations, the U.S. plaintiffs' bar filed a massive onslaught of class action lawsuits, seeking about $1 billion in recoveries on behalf of customers that overpaid for services.
In addition, the plaintiffs' bar now catches wind of possible antitrust activity earlier than it did in the past due to increased pressure on companies to disclose anything that could impact financial performance.
"Under Sarbanes-Oxley, getting a subpoena in an antitrust investigation is a reportable event," says Patrick Ahern, partner at Baker & McKenzie.
One key is looking for early settlement opportunities. "Go out and be proactive with large customers and look for a business resolution or settlement," Wiseman says. "This takes those claims out of any class action and also reduces the possibility that large customers will opt out and pursue recoveries separately."
U.S. defendants in antitrust litigation also should look carefully at whether the court in which the plaintiff has filed can acquire subject matter jurisdiction over the case.