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Tabacco, Joseph; Martin, Scott --- "Settlement Practice from Both a Plaintiff and Defense Perspective" [2012] ELECD 856; in Foer, A. Albert; Stutz, M. Randy (eds), "Private Enforcement of Antitrust Law in the United States" (Edward Elgar Publishing, 2012)

Book Title: Private Enforcement of Antitrust Law in the United States

Editor(s): Foer, A. Albert; Stutz, M. Randy

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857939593

Section: Chapter 12

Section Title: Settlement Practice from Both a Plaintiff and Defense Perspective

Author(s): Tabacco, Joseph; Martin, Scott

Number of pages: 33

Extract:

12 Settlement practice from both a plaintiff and
defense perspective
Joseph Tabacco1 and Scott Martin2


§ 12.01 Introduction: A unique landscape for settlement
§ 12.02 Windows of opportunity: When to engage in settlement
discussions
12.02.1 Pre-complaint settlements
12.02.2 Settlement at the pre- and post-motion to dismiss or
class certification stage
12.02.3 Breaking the ice
12.02.4 Last call: Settlements after close of discovery but before trial
§ 12.03 The players involved: Shaping the table and filling the seats
12.03.1 Businesspersons and experts
12.03.2 Facilitators
12.03.3 Settlement counsel
§ 12.04 Multi-party and multi-jurisdictional cases: Strategic
complications
12.04.1 For the plaintiffs: "Picking from" and "picking off"
multiple defendants
12.04.1(a) Cases arising from DOJ investigations
12.04.1(b) Cases where there is no pending
governmental proceeding or investigation
12.04.2 For the defendants: Breaking up can be hard to do
12.04.2(a) Joint defense and judgment sharing agreements
12.04.2(b) Most favored nation ("MFN") provisions
12.04.3 Multiple jurisdictions and "global peace"
§ 12.05 Class settlement considerations
12.05.1 Scope of claims settled and released
12.05.1(a) Due process concerns
12.05.1(b) Prospects of certifying a settlement class
12.05.1(b)(1) Direct purchaser vs. indirect
purchaser classes
12.05.1(b)(2) Rule 23(a): Numerosity,
commonality, typicality
and adequacy
12.05.1(b)(3) Predominance


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