Antitrust, UCL and Privacy

Competition: Fall 2014, Vol. 23, No. 2

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.

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