Strategic Considerations For Multidistrict Litigation

• Pages: 165-177

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CHAPTER VIII

STRATEGIC CONSIDERATIONS FOR

MULTIDISTRICT LITIGATION

Much modern antitrust litigation takes place in the class action setting.

Beginning in the late 1960s, class actions became the favored approach for

bringing claims alleging price-fixing and other per se illegal horizontal

conduct where each individual purchaser-plaintiff experienced a relatively

small loss. The ability to aggregate claims into an often-formidable

damages demand, coupled with widespread judicial acceptance of

horizontal price-fixing cases as suitable for class treatment, has made the

price-fixing class action a staple of today’s antitrust litigation landscape.

More recently, class actions have been used with some frequency to bring

other types of antitrust claims, such as monopolization and exclusive

dealing.

Many antitrust class actions are initiated by purchasers of products or

services shortly after a report that the Department of Justice has

commenced a criminal grand jury investigation or raided the defendant

suppliers. In some instances, purchasers from a supplier commence class

actions after the supplier’s competitor secures a favorable verdict finding

that the defendant engaged in unlawful monopolization or improper

vertical arrangements. Whatever the trigger, nearly all modern antitrust

class actions share a common feature: they begin as a series of similar or

even identical actions brought by separate plaintiffs in federal district

courts around the country, and eventually become consolidated by the

Judicial Panel on Multidistrict Litigation for pretrial purposes.

This chapter considers a variety of discovery issues that arise out of

this procedural posture, including strategic considerations in the

consolidation process; the coordination of pretrial efforts following

transfer; and discovery issues arising from direct and indirect purchaser

actions.

A. The Process of Consolidation

The separate litigation of actions raising common issues of fact or law

has long been recognized as undesirable because it causes unnecessary

duplication of effort and drains the resources of the parties and the judicial