Litigation: Raising the bar: Recent developments in antitrust class actions

Regardless of which side ultimately benefits, the Supreme Court's message for antitrust litigants is clear: Class action is an exception to the usual rule.

Antitrust class actions can be huge, complicated, and very expensive. The recent Visa/Mastercard class action arising from alleged fixing of credit card interchange fees has lasted for years and resulted in a $5.7 billion settlement with 12 million retailers — and the case is still not over. Ten of the original 19 named plaintiffs, including retail giants Wal-Mart and Target, opted out of the settlement. Thirty other merchants who opted out commenced a new action against Visa and Mastercard on Jan. 15, 2014, and further litigation is expected.

Given the cost and complexity of antitrust class actions, it is hardly surprising that in-house counsel generally seek to avoid them. A recent Supreme Court case, Comcast v. Behrend, may offer hope. Depending on how it is read, Comcast may be a significant barrier to antitrust class actions in which consumers are seeking money damages.

Contributing Author

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Lawrence T. Gresser

Lawrence T. Gresser is a co-founder and the managing partner of Cohen & Gresser LLP and a member of the firm’s Litigation and Arbitration practice...

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Scott D. Thomson

Scott D. Thomson is counsel in Cohen & Gresser LLP’s Litigation and Arbitration practice group.

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