Chapter X. Trial

• Pages: 245-274

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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 http://www.abanet.org/antitrust/at-committees/at-trial/pdf/

past-programs/gordon-transcript-04.pdf

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.