Introduction

• Pages: 1-2

1

CHAPTER I

INTRODUCTION

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

v. Illinois,1 which bars indirect purchaser actions under the Sherman

Act, 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

crafted a variety of different approaches, with significant differences

on a number of issues.

We are quickly approaching the fortieth year of the post-Illinois

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

continues to mushroom, 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 after the passage of the Class Action Fairness Act of 2005

(CAFA)2 indirect purchaser litigation plays a significant role in

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 experience with 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.

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 fifty states

and three other jurisdictions.

Two chapters discuss the issue of who can litigate and where.

Chapter III analyzes the concepts of liability and standing in indirect

purchaser law. Chapter IV outlines state and federal jurisdiction over

1. 431 U.S. 720 (1977).

2. 28 U.S.C. § 1332 (2005).