Antitrust Class Actions: Chaos in the Courts

AuthorRobert H. Klonoff
Robert H. Klonoff*
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
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.
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
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.

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