Antitrust Class Actions: Chaos in the Courts

• Author: Robert H. Klonoff
• Pages: 137-164

137

ANTITRUST CLASS ACTIONS:

CHAOS IN THE COURTS

Robert H. Klonoff*

A. INTRODUCTION

In an insightful article, Professor Samuel Issacharoff observed that class

actions can be roughly divided into two categories: “upstream” cases,

which involve an alleged “uniform course of conduct by the defendant,

from which everything else follows,” and “downstream” cases, in which

the resolution of a common issue results in “an immediate need to shift

downstream and find fact after fact with regard to each individual plain-

tiff.”1 Professor Issacharoff identified, as classic upstream cases, those

involving economic harm and damages that generally can be “calculated

administratively.”2 He identified, as classic downstream cases, personal

injury mass tort claims, which typically involve myriad individualized

issues.3

Antitrust cases often pose a dilemma under this dichotomy. They are

obviously economic cases, and they frequently involve a significant com-

mon issue, such as whether the defendants engaged in a conspiracy to

restrain trade or whether the alleged conspiracy caused class-wide injury.

* Douglas Stripp/Missouri Professor of Law, University of Missouri-Kansas City

School of Law; co-author of Class Actions and Other Multi-Party Litigation:

Cases and Materials (St. Paul, Minn.: Thomson West, 2000) (2nd ed. forth-

coming 2006); author of Class Actions and Other Multi-Party Litigation in a

Nutshell, 2nd ed. (St. Paul, Minn.: Thomson West, 2004); and an Associate

Reporter for the American Law Institute’s “Principles of the Law of Aggregate

Litigation.” I thank Matthew Allen, James Eiszner, Edwin Fountain, Professor

Mark Herrmann, Charles Morse, Professor Suzette Malveaux, and the partici-

pants at the Western Law competition class action symposium, who provided

useful comments on an earlier version of this article. I also thank Zhaoying Du,

Nicole Fisher, Desarae Harrah, Heather Ingram-Gipson, and Ruzhen Wei for

their excellent support.

1 Samuel Issacharoff, “Class Action Conflicts” (1997) 30 U.C. Davis L. Rev. 805

at 831–32.

2 Ibid. at 832.

3 Ibid.

138 LITIGATING CONSPIRACY: AN ANALYSIS OF COMPETITION CLASS ACTIONS

On the other hand, antitrust class actions sometimes involve complicated,

highly individualized issues relating to injury and damages. They do not

always fit neatly into either the “upstream” or “downstream” model. Not

surprisingly, therefore, the case law is in disarray.

This disarray has manifested itself in at least four ways. First, some

courts invoke a special presumption in favour of class certification in

antitrust cases; other courts do not.4 Second, some courts require plain-

tiffs to put forward a specific plan as to how an antitrust class action will

be tried; others do not and simply certify without resolving how the case

will be tried.5 Third, courts in antitrust cases differ with respect to the

weight given to expert testimony: some courts look only at the plaintiffs’

proffered testimony and virtually always accept it as sufficient for pur-

poses of class certification; others adopt a more exacting approach and

assess the parties’ expert testimony with care before ruling on certifica-

tion.6 Fourth, some courts adopt a blanket rule that individualized dam-

ages in antitrust cases do not defeat class certification; others eschew any

such rule and instead look at the circumstances of the particular case.7

Surprisingly, this disarray in antitrust class action law has received little

scholarly attention.8

4 Compare, for example, In re Lorazepam & Clorazepate Antitrust Litigation,

202 F.R.D. 12 (D.D.C. 2001) at 22, invoking a presumption, with Robinson v.

Tex. Automobile Dealers Ass’n, 387 F.3d 416 (5th Cir. 2004) at 420 [Robinson],

requiring the court to “conduct an intense factual investigation” in connection

with class certification.

5 Compare, for example, Robinson, ibid. at 425, requiring a trial plan, with

In re Mercedes-Benz Antitrust Litigation, 213 F.R.D 180 (D.N.J. 2003) at 192

[Mercedes-Benz], certifying a class action without resolving how the case will be

tried.

6 Compare, for example, In re Cardizem CD Antitrust Litigation, 200 F.R.D. 326

(E.D. Mich. 2001) at 348 [Cardizem], conducting virtually no independent

scrutiny, with Weisfeld v. Sun Chemical Corp., 210 F.R.D. 136 (D.N.J. 2002) at

144 [Weisfeld], rejecting expert testimony only after rigorous analysis.

7 Compare, for example, In re Magnetic Audiotape Antitrust Litigation, 2001 U.S.

Dist. LEXIS 7303 (S.D.N.Y.) at *25 [Magnetic Audiotape], using a blanket rule

that damages issues do not defeat certification, with Picket v. IBP, Inc., 182

F.R.D. 647 (M.D. Ala. 1998), rev’d on other grounds 209 F.3d 1276 (11th Cir.

2000) [Picket], holding that individualized damages issues can render a class

action unmanageable.

8 For a noteworthy exception, see D. Matthew Allen & Chris S. Coutroulis,

“Back to the Future: Toward a More Rigorous Analysis of Antitrust Class

Actions” (2003) 48 Antitrust Bulletin 463 at 466, arguing that “one can trace

the development of antitrust class action jurisprudence through four distinct

phases.” Contrast my position, below, where I argue that conflict in the case

law has been longstanding and still persists.