USA Law and Practice Contributed by: Robert Houck, William Lavery, Leigh Oliver and Joseph Ostoyich, Clifford Chance LLP
appeal dismissal. Cases that survive the dismissal stage can go on for years, as the parties exchange evidence, retain experts, dispute class certification (see 4.4 Class Certification ) and seek summary judg - ment before trial.
ers under federal law and against indirect purchasers under various state laws. Although there have been calls for Congress to over - turn the Illinois Brick rule, it has not done so. Addition - ally, the US Supreme Court affirmed Illinois Brick ‘s bar on damages suits by indirect purchasers in 2019 – the Court’s first application of the rule to a digital market ( Apple v Pepper , 139 S Ct 1514 [2019]). More generally, the US Supreme Court has articulated important “limiting contours” on the right of private plaintiffs to recover damages under the antitrust laws, embodied in the requirement that plaintiffs estab - lish the element of “antitrust standing”, which tests whether a particular plaintiff is the appropriate party to recover damages for an established antitrust viola - tion. First, antitrust plaintiffs must demonstrate that they have suffered an “antitrust injury” – that is, an injury “of the type the antitrust laws were intended to prevent” ( Brunswick v Pueblo Bowl - O - Mat , 429 US 477 [1977]). For example, a retailer that loses its distribution agreement with a manufacturer for refus - ing to conspire with other retailers to rig bids to sell the manufacturer’s products has not suffered antitrust injury. This is because the retailer’s harm (lost profits) does not “flow... from that which makes bid-rigging unlawful” under the antitrust laws (ie, higher prices to consumers) ( Gatt Communications v PMC Associates , 711 F 3d 68 [2d Cir 2013]). Plaintiffs must also establish that they are “efficient enforcers of the antitrust laws”, an enquiry that assesses (among other things) the “directness” of the link between the asserted conduct and injury, and the existence of other “more direct” victims ( Associated General Contractors of California v California State Council of Carpenters , 459 US 519 [1983]). These elements are not part of the government’s burden in proving an antitrust violation. 4.4 Class Certification Class-certification review involves a “rigorous analy - sis” that “will frequently entail overlap with the merits of the plaintiff’s underlying claim” ( Comcast v Behrend , 569 US 27, 34 [2013]). To begin with, a plaintiff must affirmatively demonstrate that:
4. Class and Collective Actions 4.1 Statutory Basis
Class actions are at the heart of private antitrust liti - gation in the USA. Any plaintiff suing under the fed - eral antitrust laws may seek to pursue their claims on behalf of a putative class of parties whose injuries at the hands of defendants involve the same set of concerns. To maintain a class, a plaintiff must move for “class certification”, establishing by a preponder - ance of the evidence that the class complies with the requirements of US Federal Rule of Civil Procedure 23 (see 4.4 Class Certification ). 4.2 Opting In or Out Class litigation typically proceeds on an “opt-out” basis: members of a “certified” class are included in the resolution of the claim unless they affirmatively opt to be excluded. 4.3 Direct/Indirect Purchasers The US Supreme Court has ruled that “indirect pur - chasers” – consumers who do not purchase directly from defendants, but to whom the direct purchaser has passed on the overcharge caused by the defend - ants’ conspiracy – generally lack standing to pursue damages claims under the federal antitrust laws ( Illi- nois Brick v Illinois , 431 US 720 [1977]). This deci - sion is rooted in concerns for judicial economy and the challenges in apportioning damages passed from direct to indirect purchasers (and the threat that those challenges could lead to duplicative recovery). There are exceptions to this rule, including when the direct purchaser is a party to the conspiracy. Further, since the Supreme Court announced the bar on feder - al indirect purchaser claims, most states have enact - ed what are known as Illinois Brick repealer statutes, which sanction indirect claims under state law. As a result, antitrust defendants may be forced to litigate in a single federal court both against direct purchas -
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