January 20, 2011 Articles

Trying an Antitrust Class Action

Hopefully this article will be of assistance to lawyers prosecuting a class action, but its suggestions are not limited to antitrust class actions.

By Jerry L. Beane

The title got your attention, right? Surely it must be a misprint. No antitrust class action cases are tried! Like every generalization, however, there are exceptions. Antitrust class actions are sometimes tried. This article draws upon personal experiences in trying antitrust class actions in both federal and state courts. Although focused on the defense of an antitrust class action, hopefully the article will also be of interest and assistance to lawyers prosecuting a class action. Furthermore, the suggestions in this article are not limited to antitrust class actions. They apply to the trial of any type of class action.

Try a Case Not a Class Action

The trial of a class action is the trial of a lawsuit. It simply has many plaintiffs. The fight over class certification is done. Nothing can be gained by treating the trial as part of the class certification battle. The case should be tried as if the named plaintiff(s) is the only party.

Jurors are normally told, either by the court at the start of voir dire, or by plaintiff’s counsel in opening statement, that the case is brought by the named plaintiff on behalf of a class. Thereafter, jurors hear little, if any, evidence of the class action nature of the case. There is nothing to be gained by dwelling on the class aspect of the case. Motions in limine can prevent repeated references to the class nature of the case. Those motions can also prevent the testimony of unnamed class members who have not been the subject of discovery.

Do not remind the jurors that the case is a class action. Focus on the named plaintiff and try the facts relating to it. Do not refer to the named plaintiff as the “class representative”. Do not refer to the represented group as “class members”. If they have to be mentioned, use their transaction status, i.e. “buyers.” When possible use generic references to the product in issue rather than the users of the product.

Try a case. Forget it is a class action.

Liability: Try the Named Plaintiff

The named plaintiff probably will have little information on liability theories such as price-fixing. It will, however, have information on other important liability aspects such as the “fact of damage”. The named plaintiff will have purchased from, or competed against, the defendant. It will have documents regarding that interaction. It probably had discussions or meetings with the defendant’s employees. That evidence can be significant. In one trial, the invoices received by the named plaintiff from his seller ( one of the alleged price-fixing co-conspirators ) showed that the price of the product in question actually went down during the claimed price-fixing period.

A focus on the named plaintiff can yield surprising results. In his enthusiasm, one named plaintiff testified at trial on direct that he was forced to raise the prices to his customers on the product in question as a result of the claimed price-fixing of the defendants. On cross examination he had to concede that not only did he pass-on price increases to his customers, but all other buyers (class members) also passed on the price increase. In that instance the named plaintiff provided testimony that could be expanded to apply to all class members.

Damages: Try the Type of Class Member

Damages in a class action are normally tried using a damage model. The approach is hypothetical and obscure. Damages present an opportunity to try facts relating to the types of class members. If class members are buyers from the defendant, then the damage facts relating to “buyers”, not class members, should be tried. Even if discovery is not allowed from absent class members, evidence relating to damages is available from the defendant. Invoices, bids, credits and other purchase documents relating to the price and terms charged to a buyer will be available. They can be effectively utilized to provide damage evidence based on actual transactions rather than damage models. Specific class members can be used as illustrations to prove no damages or reduced damages.

Conclusion

The trial of an antitrust class action presents unique challenges. The keys, however, are those of any trial – witnesses, documents and persuasion. Try the case, not the class.

Jerry L. Beane


Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).