Litigation: Raising the bar: Recent developments in antitrust class actions

Regardless of which side ultimately benefits, the Supreme Court's message for antitrust litigants is clear: Class action is an exception to the usual rule.

Antitrust class actions can be huge, complicated, and very expensive. The recent Visa/Mastercard class action arising from alleged fixing of credit card interchange fees has lasted for years and resulted in a $5.7 billion settlement with 12 million retailers — and the case is still not over. Ten of the original 19 named plaintiffs, including retail giants Wal-Mart and Target, opted out of the settlement. Thirty other merchants who opted out commenced a new action against Visa and Mastercard on Jan. 15, 2014, and further litigation is expected.

Given the cost and complexity of antitrust class actions, it is hardly surprising that in-house counsel generally seek to avoid them. A recent Supreme Court case, Comcast v. Behrend, may offer hope. Depending on how it is read, Comcast may be a significant barrier to antitrust class actions in which consumers are seeking money damages.

In Comcast, a putative class of some two million subscribers sought to sue Comcast Corporation and its affiliates, alleging that defendants had monopolized the Philadelphia “Designated Market Area” (DMA). At the district court level, plaintiffs put forward four separate theories of liability and submitted an expert report finding that plaintiffs had suffered $875 million in damages, based on all four theories of liability. The trial court judge held that only one of plaintiffs’ four theories could be proven on a classwide basis — that Comcast’s anticompetitive conduct had discouraged “overbuilders” (competing cable companies that build networks where cable networks are in place) from attempting to enter the Philadelphia DMA. The district judge nevertheless accepted the original expert damages report as sufficient to show that damages could be proven on a classwide basis, and the 3rd Circuit Court of Appeals affirmed.

The Supreme Court reversed 5-4, holding that plaintiffs were required to show at the class certification stage not merely that damages were capable of classwide proof, but that the damages flowing specifically from the plaintiffs’ theory of liability were capable of such proof. Here, concededly, plaintiffs’ expert had not even tried to isolate damages flowing solely from Comcast’s deterrence of overbuilders. As a consequence, the Court decided, the expert’s report fell “far short” of establishing that damages were capable of measurement on a classwide basis. 

The dissent argued that Comcast’s impact was slight, that it remains the law that class actions may be certified where common questions of liability predominate over individual questions of damages. But the Supreme Court’s holding in Comcast is likely to increase the burden on plaintiffs at the class certification stage by pushing them to commit to — and perhaps even prove — a specific damages theory at the outset of the case, thereby increasing their expert costs and making their damages model move vulnerable to attack. Comcast thus appears to be part of a larger trend, dating at least from the Supreme Court's Wal-Mart decision, in which the barriers to federal court class actions and other forms of “mass action” have been raised in many areas of the law.

This trend is generally favorable for corporate defendants — but not always. As discussed in our previous article, the Supreme Court’s Italian Colors decision endorsed arbitration clauses barring class actions in customer contracts. But such clauses present drawbacks in circumstances where a defendant may prefer that multiple actions be consolidated. In 2011, for example, AT&T announced that it would acquire T‑Mobile, and an enterprising law firm promptly began a “fight the merger” campaign by filing over 2,000 individual arbitration demands on behalf of customers claiming that the proposed merger violated the antitrust laws and would increase prices. Since the arbitration clause in force between AT&T and its customers did not permit class actions, there was no ready way for AT&T to consolidate the arbitrations.

Similarly, in Mississippi ex rel. Hood v. AU Optronics, Inc., the attorney general of Mississippi sought damages in state court on behalf of Mississippi citizens for price fixing among liquid crystal display manufacturers and defendants sought to remove the action to federal court under the Class Action Fairness Act, which among other things permits the removal to federal court of so-called “mass actions” — monetary relief claims of 100 or more persons involving common questions of law or fact, even if the cases are technically not class actions. Defendants argued that there were more than 100 “real parties in interest” in the case and the suit was therefore a “mass action” under CAFA. The 5th Circuit Court of Appeals agreed, but the Supreme Court reversed, holding that, since the attorney general was the only named plaintiff, CAFA simply did not apply.

Regardless of which side ultimately benefits, the Supreme Court's message for antitrust litigants is clear. “The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only,” wrote the majority in Comcast. If current trends continue, the antitrust class action may soon be exceptional indeed.

 This is the second of six articles exploring current trends in class action law.

Contributing Author

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Lawrence T. Gresser

Lawrence T. Gresser is a co-founder and the managing partner of Cohen & Gresser LLP and a member of the firm’s Litigation and Arbitration practice...

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Contributing Author

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Scott D. Thomson

Scott D. Thomson is counsel in Cohen & Gresser LLP’s Litigation and Arbitration practice group.

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