ExpertBeacon – By Jon A. Orr, CEO and Co-Founder of CAC Recovery LLC
Each year, businesses miss out on recovering millions of dollars from antitrust class action settlements due to lack of awareness of their potential claim, complexities of the claims filing process and uncertainties about the value of their claim. As a result, companies and their legal professionals have an untapped opportunity to explore and recover potential antitrust claims to which they may be entitled. Companies large and small can maximize their recoveries and avert potential pitfalls by gaining a greater understanding of the antitrust class action settlement process and the necessary steps to navigate it successfully.
Antitrust class action settlements typically arise when a company or group of companies allegedly use illegal anticompetitive business practices. These practices can include bid-rigging, price-fixing and market allocation. If a business purchased goods from a company using these anti-competitive practices, they may have paid too much for these goods. In order to recover these damages and prevent the violators of antitrust laws from continuing these illegal practices, some of the parties impacted by the alleged illegal activities file class action lawsuits against the alleged violators. These lawsuits typically take years and cost a significant amount of money to both the defendants and plaintiffs in legal fees. In order to reduce the uncertainty of a large damage award if a defendant loses and to avoid distractions caused by the litigation, many defendants choose to settle the lawsuit. Once the lawsuit is settled, generally the only way to receive a share of the settlement is to file a claim. In most cases, a business will only receive a fraction of its damages as a recovery from the settlement. However, there are some practices to perform and others practices to avoid to maximize your recovery.
- become aware of class action settlements that are relevant
- opt out of a settlement if it isn’t adequate
- file a timely claim form and attach sufficient support
- respond to settlement administrator deficiency/rejection notices
- file a claim in all cases in which you may have a recovery
- accept at face value a number provided by a settlement administrator
- rely on one source of information
- waste resources filing claims on cases with complicated and/or burdensome filing requirements
- assume all professionals are experienced in providing claims filing assistance
- file and forget the claim
Do become aware of class action settlements that are relevant
Settlement administrators attempt to notify class members through direct means such as mail or email or by mass media (e.g., magazines, newspapers, radio, television, etc.). However, lack of class member contact information, limited administration budgets and the sheer size of the class can impact how many members of the class become aware of the settlement. To become aware of cases that impact your business, pay careful attention to news related to the business practices of your largest vendors. In addition, many companies engage a professional such as a class action claims filing service or other professional that can monitor various class actions and notify you of potential claims.
Do opt out of a settlement if it isn’t adequate
After reviewing the proposed settlement, you should decide if you believe the settlement is appropriate and sufficient for any impact the alleged illegal activities had on your business. If you wish to proceed with your own litigation, you must opt out of the settlement by the opt out deadline set by the courts. Then make sure to proceed with your own litigation against the plaintiff(s).
Do file a timely claim form and attach sufficient support
Each settlement has a deadline by which all claims must be filed. If a claim is not filed by the deadline, the Settlement Administrator may reject the claim. In addition, claims must be supported with sufficient documentation. Depending on the case, this can include receipts, accounting reports or other proof of purchases. There is a wide variety of methodologies and analytical procedures to supplement missing information. However, what the Settlement Administrator will accept as sufficient support can vary from settlement to settlement. Claims that are not adequately supported may be adjusted or rejected.
Do respond to settlement administrator deficiency/rejection notices
After claims are filed, it can take up to six months or longer before the Settlement Administrator can analyze the claim and supporting documentation. If a claim has a deficiency, the Settlement Administrator may send out a deficiency or rejection notice. These notices usually give a claimant 10 to 30 days to cure any deficiency. If a deficiency is not cured, the Settlement Administrator may deny the claim. Therefore, it is important to respond fully and promptly to these notices.
Do file a claim in all cases in which you may have a recovery
The amount of your recovery in any case is generally based on the following factors: dollar amount of your claims filed, dollar amount of other claims filed and settlement fund available for distribution. Most funds are distributed based on pro rata dollar amount of claims. It is generally not possible to know how much you will recovery as it varies from case to case. Recovery can be a fraction of a percent of the allowed claim to more than 10%. Since recovery is unknown when you file your claim, to maximize your overall recovery, consider filing claims in all cases where you have potential claims. Some cases will bring a minor return, others can bring a significant recovery.
Do not accept at face value a number provided by a settlement administrator
In certain circumstances, the settlement administrator may estimate the amount of your claim. Do not take these claim amounts at face value. The settlement administrator may not have access to the all of the records, their records could have errors, there could be changes in your corporate structure (e.g., mergers & acquisitions, new entities, name or address changes) and other issues that impact your claim amount. Therefore, it is always best to determine your own claim amount and compare it to whatever the settlement administrator provides.
Do not rely on one source of information
When determining the amount of your claim, don’t rely on one source of information. Possible sources of information include accounts payable reports, supplier records, sales reports, inventory reports and other records. The more sources of information, the more complete your claim will be.
Do not waste resources filing claims on cases with complicated and/or burdensome filing requirements
Instead, use an outside resource. There are certain cases that have complex or burdensome filing requirements. In addition, there may be claims for which you have limited records for the claims period You may not have the time or existing resources to determine how to file a claim or what to include in your claim. Taking short-cuts like not including sufficient support for your claim or not filing for all years in the claims period can negatively impact your recovery. There are outside resources that specialize in filing claims that can help you efficiently file the claim and identify ways to supplement any missing or incomplete data.
Do not assume all professionals are experienced in providing claims filing assistance
Just like any industry, all professionals that assist in filing claims are not created equal. Many firms price their services based on a contingency fee that ranges from 15% to 30% depending on the case. Whoever you choose make sure that they act professionally, are easy to contact, have experience in class action claims filing and have established relationships with the settlement administrators.
Do not file and forget the claim
Settlement administrators can receive thousands of claims. Sometimes claims are lost and/or the support for the claim is detached from the claim. Administrative and clerical errors can result in wrong amounts being input into the settlement administrator’s records. Often, settlement administrators do not provide a written response to any supplemental information the claimant provides in a responding to a rejection or deficiency notice. In such cases, it will not be known until payment is received if the settlement administrator accepted the claim and any supplemental information. To assure you maximize your recovery, stay in touch frequently with the settlement administrator or use a professional class action claims filing service that can do so on your behalf.
By gaining greater insight into the class action claims recovery process, businesses stand to recover significant funds from damages they may have suffered from illegal uncompetitive practices resulting in an antitrust class action settlement. Properly identifying class action settlements, determining your claim, filing your claim form appropriately and following up on your claim will maximize your recoveries. Furthermore, hiring a class action claims filing professional to assist you in filing your claim can help you in all of these areas by easing the burden on your time and resources as well by identifying additional ways to increase your claim and other potential antitrust claims to which you may be entitled.