The Fall and Rise of the Antitrust Class Action

Abstract

Jurisdictions all over the world are experimenting with different forms of collective actions in order to provide compensation for large numbers of victims with small claims in competition cases. This article surveys two nearly simultaneous developments: the cautious development of collective actions in competition cases outside the United States and the narrowing of class actions in the United States. This article then focuses on the key issue that will determine the fate of the nascent movement toward collective actions, namely the need for an opt-out mechanism to provide proper incentives with the collective assertion of small value claims. We conclude that, as a matter of both theory and practice, opt-in mechanisms are merely an inadequate form of joinder ill suited for collective actions in competition cases.