Chapter X. Trial

Indirect purchaser actions are generally larger and more complex
than most litigated matters and can present several logistical issues not
often present in other kinds of commercial litigation. In a typical indirect
purchaser action, the considerations present in other trials are amplified
by the sheer magnitude of the case, which can involve: scores of
witnesses (including experts on liability, complex damages analyses or
other technical issues—as well as nonparty witnesses who sold
defendants’ product through one or more layers of different distribution
channels); hundreds of thousands, if not millions, of relevant documents;
confidential business information not only of the parties but of nonparties
as well; and numerous defendants, each with its own agenda and view of
the case. The court and parties may also face the challenge of
coordinating with trials in parallel actions pending in several
jurisdictions. Finally, some indirect purchaser cases can attract a great
deal of media attention, thus requiring a public relations strategy, not
only for the parties but for the court itself.
While very few indirect purchaser cases ever actually reach trial
(having been dismissed, failed at the certification stage, or settled),
counsel must begin preparing—almost from the onset of the litigation—
for the possibility that a trial may occur. This Chapter discusses some
issues that practitioners may want to consider in their trial preparations to
present their case as effectively as possible.
To further illustrate some of these practical considerations, this
Chapter includes excerpts from a teleseminar entitled “Gordon v.
Microsoft: Observations from the Trial Judge and Selected Jurors,”
presented on December 17, 2004, by the ABA Section of Antitrust Law’s
Trial Practice Committee and the Minnesota State Bar Association’s
Antitrust and Civil Litigation Sections.942 The program featured the
Honorable Bruce A. Peterson, the Minnesota district judge who presided
942 © Minnesota State Bar Association (MSBA), Minneapolis, Minn. (2004).
Excerpts from Hon. Bruce A. Peterson, Gordon v. Microsoft:
Observations from the Trial Judge and Selected Jurors (Dec. 17, 2004)
(hereinafter “Observations from the Trial Judge”) are reprinted here with
the permission of the Minnesota State Bar Association. The complete
transcript is available from the ABA Section of Antitrust’s Trial Practice
Committee at
246 Indirect Purchaser Litigation Handbook
over the trial of an indirect purchaser class action case filed against
Microsoft, until the parties settled approximately seven weeks into
trial.943 As Judge Peterson noted, the case highlights the magnitude of an
antitrust class action matter:
The case was a big case in all respects. There is no way of knowing for
sure, but I heard estimates that there were perhaps a million people in
the class, or the two classes. Plaintiff’s counsel were talking about
damages on the order of 300 or 400 million dollars. The evidence was
voluminous. The plaintiffs initially designated three hundred thousand
lines of deposition testimony. Both sides offered into evidence
something on the order of four thousand exhibits each. The trial teams
were very large. Microsoft typically had six or eight, at least, people in
the court room. Plaintiffs, maybe, three, four or five lawyers at least.
And there were at least that many lawyers working on evidentiary
matters with Special Referee David Herr . . . who was working on a
parallel track with objections while we were in the court trying the
case. So, it was a challenge just to try to help steer this large enterprise
in a reasonable fashion.944
Although the case did not proceed to verdict, it is one of very few
indirect purchaser cases to proceed to trial. Thus, the case and the views
of the trial judge provide valuable insights into the practicalities of trying
an indirect purchaser case.
A. Courtroom Facilities and Scheduling
The complexities of an indirect purchaser case affect considerations
as basic as the location for holding the trial. The usual state-court
facilities may not be adequate to host a lengthy trial involving dozens of
lawyers, support staff, and equipment. Early in the process, counsel
should determine (and advise the court on) the basic physical
requirements for trial and, if the available courtrooms are not adequate,
work with the court to arrange alternatives, such as ceremonial
courtroom space, other government conference facilities, nearby federal
court facilities, or hotel conference facilities, as soon as possible.
943. The class action indirect purchaser case involved allegations by two sets
of indirect purchaser classes: (1) Minnesota purchasers of Microsoft
Operating Systems (i.e., Windows); and (2) Minnesota purchasers of
applications software such as word processing and spreadsheet software.
The plaintiffs alleged that Microsoft unlawfully acquired and maintained
monopolies in those two markets.
944. Observations from the Trial Judge, supra note 942, at 4-5.

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