The Role of Experts in Antitrust Class Certification

• Pages: 171-188

171

CHAPTER VII

THE ROLE OF EXPERTS IN ANTITRUST CLASS

CERTIFICATION

A survey of district court judges found that nearly 80 percent of civil

trials involve some form of expert testimony.1 The same survey found

that the most common issues addressed by expert witnesses relate to

injury and da mages (e.g., in terms of existence, cause, nature, extent, and

amount) and that economists are the most frequently used expert

witnesses.2

An antitrust case being litigated today may involve not only complex

issues of economics requiring such testimony, but also detailed industry

information or complex scientific issues, , depending on the industr y and

contour of the substantive allegations. An antitrust class action

commonly requires expert testimony at a hearing regarding whether a

class may be certified. Although the specific evidentiary techniques and

methodologies that may be applicable are themselves the subject of

treatises and beyond the purpose and scope of this handbook,3 this

chapter serves as an initial source and provides an outline and

introduction to these topics.

A. Expert Engagement

The timing of when to engage an expert is a case specific analysis.

Hiring an expert early in the process may help in determining what types

of data and documents might prove useful both from the retaining party

in addition to those needed from the opposing side. Alternatively, hiring

1. Carol Krafka, Judge and Attorney Experiences, Practices, and Concerns

Regarding Expert Testimony in Federal Civil Trials, 8 PSYCH. PUB. POL.

AND L. 309, 318-19 (2002).

2. Id.

3. Brian P. Brinig, T he Art of Testifying, LITIGATION SERVICES HANDBOOK:

THE ROLE OF THE ACCOUNTANT AS EXPERT (Roman L. Weil e t al. eds.,

5th ed. 2012). See generally DAV ID L. FAIGMAN ET AL., MODERN

SCIENTIFIC EV IDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY

(2012); KENNETH S. COHEN, EXPERT WITNESSING AND SC IENTIFIC

TESTIMONY: SURVIVING IN THE COURTROOM (2d ed. 2016).

172 Class Actions Handbook

an expert later in the process may reduce costs. In an antitrust class

action, it is common for an expert to be engaged at an early stage in the

litigation to assist in class certification, and to have that engagement

expanded to additional issues at an advanced stage.

Experts in class actions may serve a variety of roles. An expert may

also gather relevant information about the industry, review documents

and transaction-level data produced in discovery by the plaintiffs and the

defendants (and, increasingly, third parties in the distribution chain),

perform independent research, confer with other testifying or consulting

experts (including industry practitioners), or perform statistical analyses.

Different econometric models may be involved with respect to each class

in a typical case involving direct and indirect classes.

An expert may play a role in defining a relevant market, identifying

and weighing procompetitive and anticompetitive effects of the

challenged conduct, and assessing impact and damages. Experts on the

plaintiffs’ side frequently testify that the defendants’ conduct

demonstrates a pattern of price fixing or other collusive behavior in

restraint of trade. On the other hand, experts on the defendants’ side may

testify “that the defendants’ pricing behavior is inconsistent with their

having agreed to fix prices or that it had no effect on the average price

paid by the plaintiff.”4

In addition to the testifying expert, parties in large antitrust class

actions often will retain one or more consulting experts who will not be

subject to discovery by the other side if they do not testify.5 The

consulting expert can help counsel evaluate the case, suggest areas for

further investigation and generally help shape the development of the

case, all within the context of the attorney work product doctrine.

Early attention to the building of a consulting and testifying expert

team can give the legal team access to professional skills for determining

key issues, legal strategies, and preliminary assessments of class

certification, liability and damages. This team can also reduce overall

litigation costs, for example, by helping to target discovery.6

4. Richard A. Posner, The Law and Economics of the Economic Expert

Witness, 13 J. ECON. PERSP. 91, 92 (1999).

5. Designed in part to di minish the necessit y of hiring a consulti ng expert,

the 2010 amendment to Rule 26 established broad work-product

immunity for communications between counsel and testifying experts.

See FED. R. CIV. P. 26 Advisory Committee Notes (2010).

6. Asim Varma, Working with Experts in Antitrust Cases, EXPERT

WITNESSES IN ANTITRUST LITIGATION: MAKING (OR BREAKING) YOUR