Chapter I. Introduction

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CHAPTER I

INTRODUCTION

Whether analytically correct or not, the rule of Illinois Brick Co. v.

Illinois5 struck many people as wrong, so they sought a legislative

solution. When Congress failed to take action to remove the Illinois

Brick bar, the states took it upon themselves to do so. The states came

up with a variety of different approaches, with significant differences on

a number of issues.

We are now approaching the thirtieth year of the post-Illinois Brick

era. After an initially slow start, indirect purchaser litigation has

mushroomed in the last decade—the natural byproduct of increased

cartel enforcement that served up a number of indictments and guilty

pleas, with follow-on direct purchaser actions. Many if not most of the

indirect purchaser cases that followed have been litigated in state court,

but now, with the passage of the Class Action Fairness Act of 2005

(CAFA), we move into a new chapter of indirect purchaser litigation,

with the prospect of an increasing role for federal courts.

This Handbook pulls together the developments in indirect purchaser

jurisprudence. It begins with an analysis of the Illinois Brick decision,

along with the federal, state, and scholarly responses. Then it considers

questions of liability and standing for indirect purchaser claims. It

reviews procedural aspects of indirect purchaser litigation—jurisdiction,

discovery, case management, and class certification issues. It also gets to

the bottom line—damages and settlements. Finally, it looks northward to

seek lessons from Canada’s somewhat different experience in indirect

purchaser claims.

This Handbook takes no position on whether Illinois Brick was

rightly decided or whether the benefits of indirect purchaser litigation are

worth its costs. Rather, this Handbook is intended as a guide for

practitioners and courts, working in the world as it is today. This

Handbook pulls together the developments in indirect purchaser

jurisprudence.

One chapter and one appendix describe the substance of indirect

purchaser law. Chapter II describes the various responses to the Illinois

Brick decision—state and federal, legislative and judicial. Appendix A

discusses the state of the law in each of the 50 states and three other

jurisdictions.

5. 431 U.S. 720 (1977).