Antitrust and Consumer Protection
Competition: Fall 2014, Vol. 23, No. 2
Content
- "All Natural" Class Actions: a Plaintiff Perspective
- Appellate Courts Grapple With the Foreign Trade Antitrust Improvements Act—Plaintiffs' Perspective
- Cafa: Recent Developments On the Jurisdictional and Settlement Fronts
- Chair's Column
- Defense Perspective: "All Natural" Class Actions
- Editor's Note
- Ftc V. Wyndham Worldwide Corporation, Et Al. and the Ftc's Authority To Regulate Companies' Data Security Practices
- Joint Trial of Direct and Indirect Purchaser Claims
- Masthead
- Plaintiff Perspective: the Long Arm of State Antitrust Law
- Recoveries For Violations of Federal and California Antitrust Statutes Should Not Be Apportioned
- So Your Suppliers Conspired Against You: An Antitrust Class Action Opt-out Primer
- The Ftaia Limits the Extraterritorial Reach of State Antitrust Laws
- The Misapplication of Associated General Contractors To Cartwright Act Claims
- The Problem of Duplicative Recovery Under Federal and State Antitrust Law
- Why Associated General Contractors Should Be Used To Assess Standing In Cartwright Act Cases
- Federal and State Class Antitrust Actions Should Not Be Tried In a Single Trial
FEDERAL AND STATE CLASS ANTITRUST ACTIONS SHOULD NOT BE TRIED IN A SINGLE TRIAL
By Steve Williams1
I. INTRODUCTION
The antitrust remedies provided to direct purchasers by federal law and to indirect purchasers by state law are separate and independent, and neither can infringe on the other.2 The Class Action Fairness Act ("CAFA")3 has caused federal antitrust class actions and state antitrust class actions to be litigated together through centralization or coordination in federal courts, typically as part of multidistrict litigation. The tensions between the substantive and procedural aspects of federal and state antitrust law have been recognized since CAFA was enacted, with the issue of whether and how to reconcile the different antitrust regimes being studied without any action by the federal or state legislatures.4
In considering this issue, the Antitrust Modernization Commission considered questions including whether Congress should act to address the differences between federal and state antitrust law, whether Congress should preempt Illinois Brick5 repealer statutes or overrule Illinois Brick, whether Hanover Shoe6 should be overruled or modified to permit allocation of damages between direct and indirect purchaser cases, and whether changes to procedure should be made to facilitate the coordination of state and federal antitrust litigation.7 In the absence of action by legislatures and rulemakers to address the tensions CAFA created, courts have fashioned procedures which seek to balance the distinct federal and state claims private plaintiffs assert with the need to conserve judicial resources and to efficiently manage litigation as mandated by Fed. R. Civ. Proc. 1.