Imperfect Information and Conspiracy Class Actions

AuthorEdward M. Iacobucci
Edward M. Iacobucci*
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.
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.”

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