Brussels Antitrust/Competition partner (and English lawyer) Matthew Hall brings us an update on antitrust class actions filed under new procedures in the UK.

Antitrust class actions in the UK are beginning to take hold before the specialist Competition Appeal Tribunal (the “CAT”).  The two filed to date show the possibilities at different ends of the value scale and the wide range of fact patterns that can be relevant.

The first claim, filed on May 25, 2016 under the new rules introduced on October 1, 2015 (see case page here), is relatively small, with an alleged claim value of GBP … Continue Reading

 In the past few years, Professor Mark Moller of DePaul University Law School has proven to be one of the most thoughtful critics of modern class action law in the legal academy. While most commentators take on class action decisions from either a pro-plaintiff or pro-defendant standpoint, Professor Moller appears intent on evaluating these opinions according to the criteria set out by the arguments they advance. From that standpoint, he pointed out that class action defendants’ "originalist" arguments about due process were influenced heavily by a no-longer-favored line of Supreme Court cases. And now, as he argues in his … Continue Reading

Yesterday, the Supreme Court issued its opinion in Comcast Corp. v. Behrend, the antitrust case which commentators (including me) had expected would finally resolve the question of whether a trial court must apply the Daubert evidentiary standard to expert testimony in a certification debate.  It turns out we were wrong. Due to a procedural defect below (Comcast had not objected to the admissibility of the expert’s testimony in the trial court), the Court ultimately did not decide the Daubert issue. But it did issue an opinion that, while limited, provides some help to defendants at certification.

BehrendContinue Reading

Just before the Christmas holiday, the Third Circuit (meeting en banc) issued an opinion approving a classwide settlement in an antitrust case. The en banc opinion is unusual. (Any en banc opinion is.) But in this case, the opinion is unusual not just because it represents a break from routine, but because of how it reaches its result.

The case is Sullivan v. DB Investments, the culmination of litigation against South African diamond giant De Beers. The primary allegation in the underlying lawsuit was that De Beers had exploited its market dominance to inflate the price … Continue Reading

 Pickett v. Iowa Beef Processors was a lawsuit between cattle producers and a beef processing company. Cattle producers sold their cows in two ways: on the cash market (also known as the "spot market") and using forward contracts. The cash market was riskier, but also potentially more profitable. The forward contracts were safer, but also made less money for the producers. So some of the producers sued Iowa Beef Processors, alleging that their use of forward contracts was a deceptive business practice. (Specifically, they alleged a violation of the Packers & Stockyards Act, an antitrust statute which regulated … Continue Reading

 Still fighting a virus and a heavy schedule, so my apologies for providing only a brief post this week.  

So let me point you to a working paper from the American Antitrust Institute, titled Indirect Purchaser Class Action Settlements.  The paper was prepared by plaintiffs’ lawyers, and is

intended to respond to the contentions made by corporate interests that indirect purchaser antitrust actions benefitted only plaintiffs’ attorneys and resulted in, at best, cy pres recoveries for the indirect benefit of the class members.

While the paper may have been written to rebut "corporate interests" (presumably critics of … Continue Reading

In re Hydrogen Peroxide was an antitrust class action. Hydrogen peroxide is a chemical that is often used a bleach for pulp and paper. In this case, the plaintiffs, all purchasers of hydrogen peroxide and other chemicals, sued their suppliers, alleging that the defendants had sold them more expensive chemical grades when less expensive ones would have been sufficient.

Following extensive discovery, 3 plaintiffs moved to certify a class of direct purchasers of hydrogen peroxide, sodium perborate, and sodium percarbonate, over an eleven-year class period. In support of class certification, plaintiffs offered the opinion of an economist. Defendants, opposing

Continue Reading

 … to provide a brief update on the Supreme Court’s decision yesterday in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., which held that, unless there is a specific contractual basis to do so, one party cannot force another to submit to classwide arbitration.  

Since the decision involves a firm client (which had retained a team headed by firm colleague Amy Manning), I’m going to refrain from the usual tactical analysis.  Instead, I’ll simply reprint the firm’s press release, and wish Amy and the rest of the McGuireWoods team congratulations on a job well done.  

Supreme Court Rules Continue Reading

Antitrust class actions can be tough cases for defendants. By their nature, cases against alleged monopolists lend themselves well to David-versus-Goliath rhetoric. But, just as difficult, a number of the fundamental questions in antitrust class actions can only be decided after a “battle of the experts” that costs a great deal of money and may alienate judges who – like many lawyers – went to law school because they didn’t like math. So how can defendants rein in meritless antitrust class actions?

Kelly Bozanic, a fellow at Penn State’s Dickinson School of Law, has written a … Continue Reading

Are courts making class certification too easy for defendants to oppose? San Francisco law professor Joshua P. Davis (this one, not this one) and Berger & Montague shareholder Eric Cramer argue just that in an forthcoming article in the Rutgers Law Journal, “Of Vulnerable Monopolists?: Questionable Innovation in the Standard for Class Certification in Antitrust Cases.”

The article critiques those appellate decisions – most notably In re Hydrogen Peroxide Antitrust Litigation – that have ruled that a court “must make whatever factual and legal inquiries are necessary and must consider all relevant evidence and … Continue Reading