Speaking Engagement
Practical Guidance to Antitrust Class Certification: Emerging Nuances Associated with Damages Claims
Speaking Engagement
Practical Guidance to Antitrust Class Certification: Emerging Nuances Associated with Damages Claims
November 18, 2021
On November 18, Winston & Strawn Partner Jeffrey Amato spoke at a webinar titled, “Practical Guidance to Antitrust Class Certification: Emerging Nuances Associated with Damages Claims.”
Presented by The Knowledge Group, this hour-long discussion focused on the procedures and requirements for certifying antitrust class actions. Panelists discussed challenges to methodologies plaintiffs employ to establish class-wide injury as well as the impact and implications of recent decisions.
KEY TAKEAWAYS FROM THE PROGRAM INCLUDE:
- Class actions pose significant hazards to defendants. The consolidation of numerous claims into one action multiplies the potential damages exposure, often to a figure so large that it calls for tremendous resources to defend, and a pressing need to come up with innovative arguments. Antitrust class actions pose an even greater danger because of the prospect of significant volumes of affected commerce, treble damages, and joint and several liability.
- Consider alternative procedural mechanisms for challenging class action claims, including motions to strike pleadings under FRCP 12(f) or early denial of the class under Rule 23. Defendants want to dispose of or trim down antitrust class actions swiftly to eliminate the exposure, the associated legal costs, and the crippling discovery that accompanies these types of matters. In addition to motions to dismiss and early settlement a motion to strike the class under Rules 12(b), 12(f), 23(d)(1)(D), and/or 23(c)(1)(A) is another tool to consider seriously.
- The presence of uninjured class members precludes class certification. An en banc panel of the Ninth Circuit is slated to weigh in on this topic and has been urged to find that the potential presence of uninjured parties in a certified class raises serious questions under Article III, and if a prospective class contains more than a handful of members who may not have suffered an injury, the class action device cannot be used to circumvent Article III requirements.
- Defendants can challenge the methodologies offered by plaintiffs to establish class-wide injury, including the propriety of average-price models. A key issue in a predominance inquiry in an antitrust class action is whether individual issues related to antitrust injury predominate. Plaintiffs usually show common antitrust impact by offering statistical sampling or econometric analyses. Defendants challenging such evidence should rigorously analyze whether sampling methods conform to generally recognized statistical standards, including whether: (i) the data population was properly chosen and defined; (ii) the sample chosen was representative of that population; (iii) the data gathered were accurately reported; and (iv) the data were analyzed in accordance with accepted statistical principles.
- Consider strategic responses to antitrust class plaintiffs’ shift to quality reduction and data privacy theories of class-wide injury in cases where there is no measured pricing impact. In response to the difficulties in establishing price impact—e.g., in zero-price markets such as social media platforms—plaintiffs have turned to theories of injury that rely on reduced product quality or impairment of data privacy as the basis for damages. Proving uniform class-wide impact of these non-price harms is exceedingly difficult. Arguments to consider in litigating quality reduction classes include (i) challenging the sufficiency of any actual or empirical evidence of quality reduction or lack of innovation; (ii) exposing the heterogeneity of qualitative impact, attacking the reliability of plaintiffs’ expert model; and (iii) identifying the overuse of averaging that may be hiding the presence of uninjured class members.
A recording of the webinar is available here.