Imperfect Information and Conspiracy Class Actions

• Author: Edward M. Iacobucci
• Pages: 81-87

81

IMPERFECT INFORMATION AND

CONSPIRACY CLASS ACTIONS

Edward M. Iacobucci*

A. INTRODUCTION

Imperfect information problems afflict all litigation, but they have some

particularly important effects in class action litigation that seeks redress

for conspiracies that are unlawful under antitrust law. In this comment, I

will outline briefly some of the ways in which the presence of imperfect

information can affect the analyses in the excellent articles by Margaret

Sanderson and Michael Trebilcock1 and David Rosenberg and James

Sullivan in this collection.2 Both articles offer valuable insights into the

strengths and drawbacks of reliance on privately initiated class actions

for conspiracy. The benefits of such private litigation efforts are that they

supplement and serve as a check on sluggish public enforcement, and the

costs are the risk of strike suits and over-enforcement. Imperfect infor-

mation contributes importantly to the benefits and costs of class action

litigation about conspiracy, as the articles suggest, but also can affect the

proposed solutions to the problem. In this brief comment I discuss the

two articles using imperfect information as my frame of analysis. First, I

discuss problems of imperfect information in detecting conspiracies; sec-

ond, I discuss problems of imperfect information in calculating damages

resulting from conspiracies.

B. DE TEC TI ON

Both articles observe that conspiracy class actions have not often been

successful in either Canada or the United States in detecting conspiracies.

* Of the Faculty of Law, University of Toronto.

1 Margaret Sanderson & Michael Trebilcock, “Competition Class Actions: An

Evaluation of Deterrence, Accountability, and Corrective Justice Rationales.”

2 David Rosenberg & James P. Sullivan, “Coordinating Private Class Action and

Public Agency Enforcement of Antitrust Law.”