Trial
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CHAPTER X
TRIAL
Indirect purchaser antitrust class actions, which are particularly
large and complex, are beset with logistical issues of such a kind and
degree as to be materially different from those found in other kinds of
commercial litigation. The magnitude of indirect purchaser actions
amplifies the complexities inherent in presenting antitrust cases to
juries. These class actions typically involve:
scores of deposition witnesses (including numerous fact party
witnesses, experts on liability and damages or other tech nical
issues, and nonparty industry witnesses, including those who
sold defendants’ product through one or more layers of
distribution channels);
millions, if not tens of millions, of relevant documents;
confidential and highly confidential business information, not
only of the parties but of nonparties as well; and
numerous defendants, each with its own agenda, relationships
with the other defendants, and views of the case.
The court and parties may also face the challenge of managing
both direct and indirect purchaser classes simultaneously, or
coordinating with one or more other jurisdictions in which parallel
litigation, and potentially trials, are proceeding.1 Additionally, some
requires most state indirect purchaser class actions to be litigated in
federal court with related direct purchaser class actions. Generally, at
least for pre-trial purposes, multiple direct and indirect purchaser
class actions cases are consolidated before one federal judge pursuant
to some combination of local district court rules a nd case assignment
procedures, transfer rules (28 U.S.C. §§ 1404, 1406), and the federal
multidistrict litigation statute ( 28 U.S.C. § 1407). Prior to the
enactment of CAFA, application of Illinois Brick Co. v. Illinois, 431
U.S. 720 (1977), resulted in most indirect purchaser antitrust class
actions being litigated in state courts. It remains unclear whether, in
the absence of consent from all p arties, indirect purchaser class
claims can be tried in federal courts in conjuction with direct
purchaser class claims, or whether all or part of the indirect purchaser
trial should be or must be: (1) bifurcated from that of t he direct
claims; (2) transferred back to the transferor court; or (3) remanded to
state court(s). For further discussion of the strate gic pros and cons of
these alternatives, see Gary A. Winters, Trial Issues in Consolidated
Direct and Indir ect Pur chaser Ca ses: Lessons from the SRAM
Litigation, ABA ANTITRUST TRIAL PRACTICE NEWSLETTER (Spring
304 Indirect P urchaser Litigation Ha ndbook
indirect purchaser cases can attract a great deal of media attention,
thus potentially requiring a public relations strategy in order to ensure
the existence of a relatively unbiased jury pool, should the case
eventually go to trial.
The discussion in this Chapter is somewhat challenging since so
few indirect purchaser antitrust class actions have proceeded to trial.2
The Chapter therefore relies heavily on in-depth discussion and
analysis of the Gordon v. Microsoft Cor p.3 case, which went to trial
in Minnesota state court in March of 2004, but was settled prior to a
jury verdict. The discussion is supplemented by observations from a
program entitled Gordon v. Microsoft: Observations from the Trial
Judge and Selected Jurors,4 featuring the Honorable Bruce A.
Peterson, the Minnesota state court judge who presided over the
Gordon trial for seven weeks before the parties settled.5 As Judge
Peterson noted:
The case was a big case in all respects. There is no way of knowing
for sure, but I heard esti mates that there were perhaps a million
2011), at 3, availa ble at http://www.american bar.org/ content/ da m/
aba/publications/antitrustlaw/at325050_newsletter_ 2011 spring.
authcheckdam.pdf.
2. Over a recent four-year span, only one of 86 civil antitrust cases filed
in U.S. federal court reached the trial stage; there is no indication that
this one case was an indirect purchaser litigation. U.S. Courts,
Federa l Judicial Caselo ad Statistics 2009-2012, availab le a t
http://www.uscourts.gov/Statistics/FederalJudicialCaseloadStatistics/
FederalJudicialCaseloadStatistics_Archive.aspx. In the fall of 2014,
an antitrust class action comprised of indirect purchasers of a
particular pharmaceutical product proceeded through a six-week jury
trial to a defense verdict presided over by Judge William G. Young o f
the United States District Court for the District of Massachusetts.
3. 2003 WL 23105550 (Minn. Dist. Ct. 2003).
4. This program was presented on December 17, 2004 by the Trial
Practice Committee of the ABA Section of Antitrust Law, and the
Antitrust and Civil Litigation Sections of the Minnesota State Bar
Association. Excerpts from Gordo n v. Microsoft: Obser vations from
the Trial J udge and Selected Jurors ( Dec. 17, 2004) [hereinafter
Observations from the Tr ial Judge ] are reprinted here with the
permission of the Minnesota State B ar Association. The complete
transcript is available at http://apps.americanbar.org/antitrust/at-
committees/at-trial/pdf/past-programs/gordon-transcript-04.pdf.
5. This indirect purchaser class action involved allegations by two set s
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 spr eadsheet
software. The plaintiffs alleged that Microsoft unlawfully acquired
and maintained monopolies in those two markets.
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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 tea ms were very large. Microsoft typically
had six or eight, at least, peo ple 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 worki ng on a parallel track with
objections while we were in the court trying the case. So, i t was a
challenge just to try to help steer this lar ge enterprise in a
reasonable fashion.6
A. Courtroom Facilities and Scheduling
The complexities of an indirect purchaser class action affect all
logistical arrangements during trial, including considerations as basic
as the location for holding the trial. Not all courthouse facilities will
be adequate to host a lengthy trial involving dozens of lawyers,
support staff, and extensive materials, or have the requisite witness
and counsel conference facilities. Furthermore, this type of trial will
almost certainly require a courtroom that is technologically equipped
for electronic presentation of documentary evidence and deposition
testimony, and may require installation of case-specific technology.7
Well in advance of trial, counsel may determine (and advise the
court on) the basic physical requirements for the trial and, if the
available courtrooms are not adequate, work with the court to arrange
alternatives, such as ceremonial courtroom space, or other
government or hotel conference facilities. The parties may make an
in-person visit to the proposed courtroom and other trial support and
preparation areas to prepare for trial and, if necessary, to alert the
court to any potential facility problems.8
The number of people involved in such cases makes a firm trial
date especially important.9 Parties in indirect purchaser actions
should therefore assume that once the court sets their trial date, it will
adhere to the scheduled date and allotted length of time. The need to
secure adequate facilities ahead of time will also be a factor. In
addition, the trial judge will need to clear weeks (if not months) from
a crowded docket, and perhaps arrange for colleagues to absorb some
6. Observations from the Trial J udge, supra note 4, at 4-5.
7. See MANUAL FOR COMPLEX LITIGATION (FOURTH) § 12.12 (2012)
[hereinafter MANUAL].
8. Id.; see also discussion infra § G.1 of this Chapter.
9. See MANUAL, supra note 7, § 11.61.
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