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Corbitt, Craig; Zahid, Judith; Clayton, Patrick --- "Pre-claim Activities" [2010] ELECD 745; in Foer, A. Albert; Cuneo, W. Jonathan (eds), "The International Handbook on Private Enforcement of Competition Law" (Edward Elgar Publishing, 2010)

Book Title: The International Handbook on Private Enforcement of Competition Law

Editor(s): Foer, A. Albert; Cuneo, W. Jonathan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448773

Section: Chapter 5

Section Title: Pre-claim Activities

Author(s): Corbitt, Craig; Zahid, Judith; Clayton, Patrick

Number of pages: 19

Extract:

5 Pre-claim activities
Craig Corbitt, Judith Zahid and Patrick Clayton1


Introduction
The lofty goals of antitrust are not self-executing. They require careful planning and
preparation by plaintiffs' counsel and the client. Most antitrust litigation is highly
complex, takes years to resolve, and is very expensive. Success in an antitrust case starts
with the right plaintiff, with the right claim. This chapter describes how private antitrust
litigation typically begins, including client contact and retention, pre-filing investigation,
and strategic considerations that typically are considered in determining the specific
claims to file, and equally importantly, where to file them.2

Meeting clients ­ class and non-class actions
There are two common ways for the potential antitrust plaintiff and the antitrust
lawyer to get together. First, a potential plaintiff who perceives an unfair competition
issue may contact an antitrust lawyer, either directly or through a referral from a non-
antitrust lawyer, to find out whether there is a basis for a claim. Second, especially in
class actions, an antitrust lawyer who is aware of a potential claim may search for a
potential plaintiff, subject to certain ethical restrictions discussed below. The former
is the more traditional way, while the latter is a more recent trend that sometimes has
been met with criticism. Both are central to private antitrust enforcement in the United
States.
A variety of individuals and companies may seek out an antitrust lawyer. For
example, a project manager who senses that a competitive bidding process is not yield-
ing ...