The Firm serves as counsel to its clients in complex commercial litigation in both state and federal courts throughout the nation, with a concentration and emphasis in individual and class action litigation under the federal and state antitrust laws, federal securities laws, state consumer protection laws, the Telephone Consumer Protection Act and other areas of complex commercial litigation.
The Firm also represents plaintiffs and defendants in a broad range of other commercial litigation, including breach of contract litigation, disputes involving business torts and other unfair and deceptive business practices, claims involving alleged breach of fiduciary duty and misuse of corporate assets by corporate officers and directors, and claims involving private and public sector employees with respect to whistleblower protection laws.
The Firm advises individuals, business owners and corporations on matters concerning compliance with federal law such as FATCA, Sherman Antitrust Act, Securities Exchange Act, and the Telephone Consumer Protection Act, antitrust compliance, retention and preservation of antitrust claims and business valuation.
The Firm serves clients that want the benefit of having counsel and want to, or may be a fiduciary required to, maximize recoveries in class action matters, without the exposure, burden and duties of being an actual litigant.
The Firm offers flexible solutions for its clients, offering both hourly fee-based and fully contingency fee-based legal counsel and consulting concerning matters relating to the aforementioned subject areas.
Call us today for a free consultation and learn how we can help serve you.
What is a class action?
A class action is a type of lawsuit in which one or several persons or companies bring an action on behalf of a larger group of persons or companies.
While the subject matter of class action litigation can vary widely, two factors are almost always present in every class action:
1. The issues in dispute are common to all members of the class, and
2. The persons or companies affected are so numerous as to make it impracticable to bring all of their claims separately before the court
Depending upon the type of class action, resolution of the lawsuit binds all members of the class certified by the Court.
Many cases start as the result of complaints by one or a handful of persons or companies to counsel or to governmental bodies.
Others follow upon government investigations and criminal indictments.
What are some examples of class action lawsuits?
Examples of class action lawsuits include claims such as:
Antitrust- Merchants and consumers who allege payment of inflated prices for products caused by the anti-competitive activities of large corporations; and
Securities- investors who allege they are victimized by fraud committed in connection with the purchase or sale of stocks and other securities.
Telephone Consumer Protection Act, 47 U.S.C. § 227- Did you know that it is unlawful to market via use of computer robo-dialing cellular phone numbers, via text message, or by sending unsolicited faxes unless the unsolicited advertisement is from a sender with an established business relationship with the recipient? Federal law provides for a private right of action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation. The court can triple this $500 per occurrence damage award to $1,500 per occurrence in its discretion.
What are public policy reasons that support class action lawsuits?
Class action lawsuits are designed to advance several important public policy goals. A class action is often the sole means of enabling persons, even those with serious injuries, to remedy injustices committed by powerful corporations and institutions. As stated by former United States Supreme Court Justice William O. Douglas, "The class action is one of the few legal remedies the small claimant has against those who command the status quo."
Often, individuals and corporations may have suffered only limited damages and the cost of individual lawsuits would be far greater than the value of each claim. The total damages, however, to the class, could be quite large. The wrongdoer would have the incentive to continue its fraudulent conduct but for having to disgorge unlawfully gained profits returned via a class action.
To learn more about the class action process, contact us today!
Government enforcement of antitrust laws, and resulting criminal fines and penalties, tend to put money back in to the Federal Treasury – but often do not actually compensate direct purchasers impacted by cartel activity. This is where the private sector comes in. In fact, most antitrust suits are brought by businesses and individuals seeking damages for violations of the Sherman or Clayton Act. Private parties can also seek court orders preventing anticompetitive or fraudulent conduct (injunctive relief) or bring suits under state laws. Private parties injured by certain violations can bring claims for up to three times their actual damages plus court costs and attorneys’ fees. These parties are known as Class Representatives.
What is in it for a Class Representative?
Justice. Standing up for all similarly situated, overcharged or defrauded purchasers. Recoupment of your loss. Upon successful resolution of a matter, Class Representatives can receive not only the pro ratapercentage of the loss they incurred, but also often a court awarded cash incentive.
What is a typical percentage of returned overcharge?
It depends on a host of factors including the strength of the case, the strength of counsel, the ability of settling offenders to pay and economic analysis of class-wide impact and damages, among other factors.
What is an incentive award?
An additional cash incentive award determined completely at the discretion of the Court. These awards have run the range from $5,000 to as much as $200,000 and more.
What are the financial costs associated with being a Class Representative?
Generally speaking, nothing. When a class action settles, the prosecuting counsel are typically paid as the court determines, either as a percentage of the common settlement fund created on behalf of all class members, or directly by defendants by means of a settlement agreement that provides for attorneys’ fees separate and apart from what is being paid into the common fund. So, upon successful resolution of a matter, some part or provision of the settlement will be paid to prosecuting counsel. Why not get the benefit of what that money is already paying for? Why not insure that your claims will be filed properly and maximized? Why not seek an incentive award?
What should a would-be Class Representative do at the out-set when anticipating becoming involved in a matter?
Preserve all documents and data pertaining to purchases of the products in question and relating to interactions with sellers of the products, whether they exist electronically or in hard copy. As a Class Representative, or an absent class member, you will need these to make sure that your recovery is maximized. You will need to retain records relevant to the class period in order to do so. If anticipating being involved in litigation, it becomes your duty to preserve these documents. The firm provides data preservation solutions after determining who the custodians of relevant paper and electronic documents are, and we help you make sure this information is properly preserved.
What are the duties of a Class Representative?
To choose good counsel.
To stay abreast of the case by keeping informed via updates from counsel.
To review certain key filings, such as the complaint, prior to filing.
To preserve and produce purchase data and related documents as requested.
To provide testimony as requested, typically regarding your purchases of the price-fixed product, sometimes in the form of a deposition.
To learn more, contact us today!
The Firm's antitrust practice focuses on the prosecution of large antitrust class actions alleging price-fixing or monopolization against some of the world's largest corporations.
The Firm also provides counsel to corporations and business owners regarding compliance with antitrust laws.
Antitrust conspiracies are often exposed by whistleblowers or governmental investigations. Criminal fines, however often only fill government coffers - and not the pockets of those who were actually harmed by anticompetitive activity.
Examples of the antitrust litigation that the firm pursues include:
Price-fixing of commodity products
Manipulation of exchange rates
Output reduction and market allocation
Overview of the Antitrust Law Violations
Per Se Antitrust Violations- Conduct that is illegal under any circumstance.
Price Fixing - These are agreements among competitors on the price at which they will sell their products or services. Price-fixing may exist even if there is no agreement on a specific price to be charged. Any agreement between or among competitors with the purpose of increasing or affecting the price of a product or service will violate the antitrust laws.
Bid Rigging- Attempting to eliminate or reduce price competition, or to assure that, over time, each competing bidder receives a “fair share” of total business awarded on the basis of sealed bids. Bid-rigging includes the designation by competitors of one company to win a bid with the understanding that the remaining companies will submit higher bids or an agreement among competitors not to bid.
Customer Allocations- Any agreement to divide or allocate customers among competing entities.
Geographic / Product Market Allocations- Agreements among competitors to divide or allocate business on the basis of geographic or product markets are per se unlawful.
Group Boycotts - A group boycott exists when a group of competitors agrees to take some form of joint action to exclude someone from the market. This anti-competitive act is also known as a “concerted refusal to deal” and can be intended to freeze out another competitor, supplier or customer. Done by an individual company not in concert with others, this only becomes actionable if the perpetrator has tremendous market power.
Conduct Subject to Rule of Reason Analysis- Conduct that is illegal only if the impact upon competition too greatly outweighs any benefits the activity provides.
Standard Setting - Identifying and agreeing upon a specific set of criteria to which a particular type of product should conform. Product standards are generally developed by private industry and are often spearheaded by trade associations. Care must be taken to ensure that any such standards can be supported by legitimate business justifications. Examples include rail lines that need to be uniform; compact discs, and so on.
Information Exchanges- Information concerning matters such as prices charged for services rendered, business plans, marketing plans, new product development, costs and profits, that is not already publicly available, and which is competitively sensitive, can raise antitrust questions. Some of the factors that are important to consider are: whether the information is being collected by a trade association or other third party and will be disseminated in such a way that the data providers are anonymous; whether the information contains historical data or contains projected prices or costs; whether the data providers constitute a significant share of the market; and whether the data is already publicly available. The central question under the antitrust laws is whether the information exchanged tends to restrain trade unreasonably.
Best Practices- It is not unusual for trade associations, particularly professional associations, to promulgate standards of conduct or a code of professional responsibility for members of the association. To the extent these standards are designed to protect the public from clearly unethical, fraudulent, unfair or deceptive practices, there are substantial business justifications to support the standards of conduct under the antitrust laws. Care must be taken, however, to ensure that standards of conduct, such as any proposed industry “Best Practices” standards, do not have the purpose or effect of eliminating competition in the pricing of products or services provided by industry members.
Unilateral Acts Triggering Antitrust Issues - Price discrimination by an individual corporation, is subject to a rule or reason-type analysis and is unlawful when done to restrain competition.
To learn more about our antirust practice, contact us today!
The Firm prosecutes securities fraud on behalf of its clients. Securities fraud deprives individual investors, retirement plans, pension funds, and institutional investors out of millions of dollars every year. Manipulation of the market for a given stock is actionable under the federal securities laws.
Private Securities Litigation Reform Act of 1995- Title I: Reduction of Abusive Litigation - Amends the Securities Act of 1933 (SA) and the Securities Exchange Act of 1934 (SEA) (together, the Acts) with respect to private securities class action law suits to mandate that each plaintiff seeking to serve as a representative party file a sworn certification: (1) that the plaintiff did not purchase the subject matter securities at the direction of counsel or in order to participate in a private action; (2) that identifies any other action filed during the preceding three-year period in which the plaintiff sought to serve as a representative party on behalf of a class; and (3) that the plaintiff will not accept payment for serving as a representative party on behalf of a class beyond the plaintiff's pro rata share of any recovery, except as approved by the court.
The PSLRA further prescribes guidelines for early notice to class members of the appointment of the lead plaintiff. The PSLRA requires the court to adopt a rebuttable presumption that the most adequate plaintiff is the person with the largest financial interest in the relief sought by the class and declares that a person may be a lead plaintiff (or an officer, director, or fiduciary of a lead plaintiff) in no more than five securities class actions brought as plaintiff class actions during any three-year period.
The PSLRA prohibits settlements under seal except in limited circumstances. It mandates disclosure of settlement terms to class members. It further requires the court to determine whether an interest on the part of plaintiff's counsel in the securities that are the subject of the litigation constitutes a conflict of interest sufficient to disqualify the attorney from representing the party; provides for: (1) a stay of discovery during the pendency of any motion to dismiss; and (2) preservation of the evidence during the pendency of any stay of discovery; mandates court review, upon final adjudication of an action, of the parties' compliance with certain Rules of Civil Procedure and sets forth a rebuttable presumption in favor of award of attorney's fees and costs to opposing counsel by the party in violation of such Rules; establishes each defendant's right to written interrogatories to the jury on the issue of the defendant's particular state of mind with respect to specified alleged violations; and amends the SEA to authorize the court to require security for payment of class action costs.
The PSLRA also limits damages, where the plaintiff seeks to establish them by reference to the market price of a security, to the difference between the purchase or sale price paid or received by the plaintiff, as appropriate, and the mean trading price of the security during the 90-day period beginning on the date on which the information correcting the misstatement or omission that is the basis for the action is disseminated to the market.
Securities Act of 1933 - Often referred to as the "truth in securities" law, the Securities Act of 1933 has two basic objectives:
First to require that investors receive financial and other significant information concerning securities being offered for public sale; and
Second to prohibit deceit, misrepresentations, and other fraud in the sale of securities.
The full text of this Act is available at: http://www.sec.gov/about/laws/sa33.pdf.
Purpose of Registration
A primary means of accomplishing these goals is the disclosure of important financial information through the registration of securities. This information enables investors, not the government, to make informed judgments about whether to purchase a company's securities. While the SEC requires that the information provided be accurate, it does not guarantee it. Investors who purchase securities and suffer losses have important recovery rights if they can prove that there was incomplete or inaccurate disclosure of important information.
The Registration Process
In general, securities sold in the U.S. must be registered. The registration forms companies file provide essential facts while minimizing the burden and expense of complying with the law. In general, registration forms call for:
a description of the company's properties and business;
a description of the security to be offered for sale;
information about the management of the company; and
financial statements certified by independent accountants.
Registration statements and prospectuses become public shortly after filing with the SEC. If filed by U.S. domestic companies, the statements are available on the EDGAR database at www.sec.gov. Registration statements are subject to examination for compliance with disclosure requirements.
Not all offerings of securities must be registered with the Commission. Some exemptions from the registration requirement include: private offerings to a limited number of persons or institutions; offerings of limited size; intrastate offerings; and securities of municipal, state, and federal governments.
By exempting many small offerings from the registration process, the SEC seeks to foster capital formation by lowering the cost of offering securities to the public.
Securities Exchange Act of 1934- With this Act, Congress created the Securities and Exchange Commission. The Act empowers the SEC with broad authority over all aspects of the securities industry. This includes the power to register, regulate, and oversee brokerage firms, transfer agents, and clearing agencies as well as the nation's securities self regulatory organizations (SROs). The various securities exchanges, such as the New York Stock Exchange, the NASDAQ Stock Market, and the Chicago Board of Options are SROs. The Financial Industry Regulatory Authority (FINRA) is also an SRO.
The Act also identifies and prohibits certain types of conduct in the markets and provides the Commission with disciplinary powers over regulated entities and persons associated with them.
The Act also empowers the SEC to require periodic reporting of information by companies with publicly traded securities.
The full text of this Act can be read at: http://www.sec.gov/about/laws/sea34.pdf.
Companies with more than $10 million in assets whose securities are held by more than 500 owners must file annual and other periodic reports. These reports are available to the public through the SEC's EDGAR database and often on the websites of the reporting companies as well.
The Securities Exchange Act also governs the disclosure in materials used to solicit shareholders' votes in annual or special meetings held for the election of directors and the approval of other corporate action. This information, contained in proxy materials, must be filed with the Commission in advance of any solicitation to ensure compliance with the disclosure rules. Solicitations, whether by management or shareholder groups, must disclose all important facts concerning the issues on which holders are asked to vote.
The Securities Exchange Act requires disclosure of important information by anyone seeking to acquire more than 5 percent of a company's securities by direct purchase or tender offer. Such an offer often is extended in an effort to gain control of the company. As with the proxy rules, this allows shareholders to make informed decisions on these critical corporate events.
The securities laws broadly prohibit fraudulent activities of any kind in connection with the offer, purchase, or sale of securities. These provisions are the basis for many types of disciplinary actions, including actions against fraudulent insider trading. Insider trading is illegal when a person trades a security while in possession of material nonpublic information in violation of a duty to withhold the information or refrain from trading.
Registration of Exchanges, Associations, and Others
The Act requires a variety of market participants to register with the Commission, including exchanges, brokers and dealers, transfer agents, and clearing agencies. Registration for these organizations involves filing disclosure documents that are updated on a regular basis.
The exchanges and the Financial Industry Regulatory Authority (FINRA) are identified as self-regulatory organizations (SRO). SROs must create rules that allow for disciplining members for improper conduct and for establishing measures to ensure market integrity and investor protection. SRO proposed rules are subject to SEC review and published to solicit public comment. While many SRO proposed rules are effective upon filing, some are subject to SEC approval before they can go into effect.
Trust Indenture Act of 1939
This Act applies to debt securities such as bonds, debentures, and notes that are offered for public sale. Even though such securities may be registered under the Securities Act, they may not be offered for sale to the public unless a formal agreement between the issuer of bonds and the bondholder, known as the trust indenture, conforms to the standards of this Act.
The full text of this Act is available at: http://www.sec.gov/about/laws/tia39.pdf.
Investment Company Act of 1940
This Act regulates the organization of companies, including mutual funds, that engage primarily in investing, reinvesting, and trading in securities, and whose own securities are offered to the investing public. The regulation is designed to minimize conflicts of interest that arise in these complex operations. The Act requires these companies to disclose their financial condition and investment policies to investors when stock is initially sold and, subsequently, on a regular basis. The focus of this Act is on disclosure to the investing public of information about the fund and its investment objectives, as well as on investment company structure and operations. It is important to remember that the Act does not permit the SEC to directly supervise the investment decisions or activities of these companies or judge the merits of their investments. The full text of this Act is available at: http://www.sec.gov/about/laws/ica40.pdf.
Investment Advisers Act of 1940
This law regulates investment advisers. With certain exceptions, this Act requires that firms or sole practitioners compensated for advising others about securities investments must register with the SEC and conform to regulations designed to protect investors. Since the Act was amended in 1996 and 2010, generally only advisers who have at least $100 million of assets under management or advise a registered investment company must register with the Commission. The full text of this Act is available at: http://www.sec.gov/about/laws/iaa40.pdf.
Sarbanes-Oxley Act of 2002
On July 30, 2002, the Sarbanes-Oxley Act of 2002 was signed into law. Being characterized as one of "the most far reaching reforms of American business practices since the time of Franklin Delano Roosevelt," Sarbanes-Oxley mandated a number of reforms to enhance corporate responsibility, enhance financial disclosures and combat corporate and accounting fraud, and created the "Public Company Accounting Oversight Board," also known as the PCAOB, to oversee the activities of the auditing profession. The full text of the Act is available at:http://www.sec.gov/about/laws/soa2002.pdf. (Please check the Classification Tables maintained by the US House of Representatives Office of the Law Revision Counsel for updates to any of the laws.) You can find links to all Commission rule-making and reports issued under the Sarbanes-Oxley Act at: http://www.sec.gov/spotlight/sarbanes-oxley.htm.
Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
The Dodd-Frank Wall Street Reform and Consumer Protection Act was signed into law on July 21, 2010 by President Barack Obama. The legislation set out to reshape the U.S. regulatory system in a number of areas including but not limited to consumer protection, trading restrictions, credit ratings, regulation of financial products, corporate governance and disclosure, and transparency. The full text of the Act is available at: http://www.sec.gov/about/laws/wallstreetreform-cpa.pdf. You can find links to all Commission rule-making and reports issued under the Dodd Frank Act at: http://www.sec.gov/spotlight/dodd-frank.shtml.
Learn more about our securities litigation practice, contact us today!
The Firm focuses on protecting consumers like you. Consumers are the back-bone of our economy, yet as such they are often preyed upon by big corporations via deceptive, unfair or flat- out fraudulent business practices. Often the only way for consumers to get compensated for their losses as a result of these practices, as well as to keep otherwise unscrupulous businesses from continuing to commit these wrongful acts, is through the class action vehicle.
We give often voiceless consumers who have been wrongfully deceived by corporate greed and deprived of their money both a voice, and a sword with which to fight back. These wrongs range from false advertising, bait and switch schemes, charging for products and services that were not provided, undisclosed or hidden fees, deceptive food labeling, and more. The Firm litigates on behalf of clients like you under state and federal consumer protection laws.
If you feel that you have been the victim of fraudulent, deceptive or unfair business practices, know your rights, fight back and contact us today.
The Firm is here as your advocate.
Learn more about our consumer protection practice, contact us today!
Larger corporations and financial institutions constantly face legal action over alleged violations of U.S. federal antitrust law as well as U.S. federal securities laws. Moreover, even when not in litigation, entities such as these face numerous responsibilities and hurdles to remain complaint with federal statutory frameworks and best practices.
The Firm provides these entities with an "internal" outsourced solution that dramatically cuts legal costs related to these actions and regulatory frameworks. We not only provide counsel with respect to compliance matters, we provide an immediate lower cost solution with respect to legal review of documents and data that must be produced during litigation.
The Firm delivers, where appropriate, flexible and scalable teams of highly qualified and experienced lawyers and paralegals for our clients’ document and data discovery needs. Our services have a direct positive impact on our clients' bottom lines – we help them mitigate legal risk and aid in strengthening compliance at a substantial cost savings.
Lean more about our compliance services, contact us today!
Design of Enforcement - Enforcement of federal (and state) antitrust laws is designed to protect purchasers of commodity products or services. The federal government enforces three major federal antitrust laws (and many states also have their own antitrust laws as well). Essentially, these laws prohibit business practices that unreasonably deprive consumers of the benefits of competition, resulting in higher prices for impacted products and services.
The three major federal antitrust laws are:
(1) The Sherman Antitrust Act;
(2) The Clayton Act; and
(3) The Federal Trade Commission Act
The Sherman Antitrust Act - 15 U.S.C. §§ 1-7
"Section 1" - 15 U.S.C. § 1- This Act outlaws all contracts, combinations, and conspiracies that unreasonably restrain interstate and foreign trade. This includes agreements among competitors to fix prices, rig bids, and allocate customers, which are punishable as criminal felonies.
"Section 2" - 15 U.S.C. § 2- The Sherman Act also makes it a crime to monopolize any part of interstate commerce. An unlawful monopoly exists when one firm controls the market for a product or service, and it has obtained that market power, not because its product or service is superior to others, but by suppressing competition with anticompetitive conduct.
The Sherman Act, however, is not violated simply when one firm's vigorous competition and lower prices take sales from its less efficient competitors; in that case, competition is working properly.
Nor is the Sherman Act violated by “conscious parallelism.” Yes, it is fine to follow market pricing.
The Clayton Act - 15 U.S.C. §§ 12-27
The Clayton Act is a civil statute (carrying no criminal penalties) that prohibits mergers or acquisitions that are likely to lessen competition. Under this Act, the Government challenges those mergers that are likely to increase prices to consumers. All persons considering a merger or acquisition above a certain size (presently triggers at a transaction size of $80.8 million) must notify both the Antitrust Division and the Federal Trade Commission. The Act also prohibits other business practices that may harm competition under certain circumstances.
The Clayton Act also has a provision that triples damages for violating antitrust laws.
The Federal Trade Commission Act - 15 U.S.C §§ 41-58
This Act prohibits unfair methods of competition in interstate commerce, but carries no criminal penalties. The FTCA also created the Federal Trade Commission to police violations of the Act. Its principal mission is the promotion of consumer protection and the elimination and prevention of anti-competitive business practices, such as coercive monopoly.
The Department of Justice also often uses other laws to fight illegal activities, including laws that prohibit false statements to federal agencies, perjury, obstruction of justice, conspiracies to defraud the United States and mail and wire fraud. Each of these crimes carries its own fine and imprisonment term, which may be added to the fines and imprisonment terms for antitrust law violations.
How Are Antitrust Laws Enforced?
There are three main ways in which the federal antitrust laws are enforced:
(1) Criminal and civil enforcement actions brought by the Antitrust Division of the Department of Justice.
(2) Civil enforcement actions brought by the Federal Trade Commission.
(3) Lawsuits brought by private parties (direct purchasers) asserting claims.
The Department of Justice uses a number of tools in investigating and prosecuting criminal antitrust violations. Department of Justice attorneys often work with agents of the Federal Bureau of Investigation (FBI) or other investigative agencies to obtain evidence. In some cases, the Department may use court authorized searches of businesses and secret recordings by informants of telephone calls and meetings.
Corporate leniency/immunity: The Department of Justice may grant immunity from prosecution to co-conspirators (individuals or corporations) who provide timely information that is needed to prosecute others for antitrust violations, such as bid rigging or price fixing. This immunity is typically granted only to the first conspirator who walks in the door to spill the beans. Leniency is also typically granted based on continuing cooperation with respect to all known conspiracies.
This often results in a cascade of conspiracies being exposed within an industry.
A provision in the Clayton Act also permits private parties injured by an antitrust violation to sue in federal court for three times their actual damages plus court costs and attorneys’ fees. State attorneys general may bring civil suits under the Clayton Act on behalf of injured consumers in their States, and groups of consumers often bring suits on their own. Such civil suits following, and sometimes even in advance of or in place of, criminal enforcement actions can be a very effective additional deterrent to criminal activity.
The Department of justice specifically recognizes private civil enforcement as a needed tool in its arsenal.
Some states also have antitrust laws closely paralleling the federal antitrust laws, the state laws generally apply to violations that occur wholly in one state. These laws typically are enforced through the offices of state attorneys general.
The Penalties for Violating Antitrust Laws
The penalties for violating the antitrust laws are severe.
On the criminal side, violating the antitrust laws can be a felony offense. Individuals involved in some antitrust violations can, and do, go to jail. In addition to imprisonment, criminal prosecutions for antitrust violations can result in severe financial penalties for companies and individuals.
On the civil side, the costs of defending a private antitrust class action can run into the millions of dollars, depending on the size of the case, not to mention the amounts of settlements or trial verdicts, where plaintiffs can seek to recover triple their actual damages as well as their attorneys’ fees.
To learn more about antitrust enforcement, contact us today!
Antitrust claims that may be owed to a company can be an unrecognized but valuable component of your business valuation.
During the sale of a company, generally speaking, rights to antitrust claims are not sold, unless specifically delineated, but there is language that should be used to protect the seller in these matters.
Likewise, on the other side of that balance, when buying a company, there may be additional value in the form of future antitrust claims, where the financial injury took place prior to closing the purchase.
A few sentences properly placed in an asset purchase agreement can help insure the purchase of antitrust claims as well.
Properly placed language in an asset purchase agreement that retains or transfers all rights to antitrust claims whether known or unknown with respect to your top five or ten raw materials or cost drivers can mean the difference of tens of thousands or even millions of dollars being retained or purchased.
It is surprising how much value these claims may have, and how regularly antitrust claim provisions are left out of asset purchase agreements. Companies that have broadly sold their rights and claims in asset purchase agreements often are able to retain the value of antitrust claims. Make sure you recognize the existence and maximize the value of these potential antitrust claims.
VALUE-ADDED SOLUTIONS FOR ABSENT CLASS MEMBERS
Businesses, banks, private equity firms, and large purchasers of raw materials routinely suffer financial injury as a result of another party's violation of federal law. These clients often want to recover on their own behalf, and may even have a fiduciary duty to recover funds on behalf of their shareholders. Yet many of these larger businesses do not want to be perceived as, or take on the exposure of being a litigant. Those businesses want, and often in fact need, the benefit of having experienced counsel to help maximize recoveries in class action matters, without the exposure, burden and duties of being an actual litigant. The Firm helps these clients maximize their recoveries in these matters.
To learn more about the impact of antitrust claims on business valuation, contact us today!
Mr. Grabar is also a licensed Public Insurance Adjuster, and in affiliation with Constitution Public Adjusters, handles the claims of commercial and larger residential insurance property owners who are wrongfully denied or limited insurance coverage after incurring a property loss.
Learn more about our insurance litigation practice and public adjusting services, contact us today!