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.

Since CAFA, concurrent state and federal antitrust litigation has been prevalent. For example, the electronics industry civil antitrust actions litigated in the Northern District of California over the last twelve years – DRAM, SRAM, Flash, TFT-LCD, GPUs, CRTs, ODDs, and Lithium Ion Batteries — have involved concurrent state and federal antitrust actions. In two of those actions — SRAM and TFT-LCD — the specter of a single trial of the state and federal claims was presented. The parties avoided joint trials in these cases only by settlements shortly before trial — in SRAM a settlement that resulted in a lack of a common defendant in the remaining state and federal actions, and in TFT-LCD a settlement that resolved the state law cases. There can be no doubt that this situation will present itself again, creating tension between the desire of the courts to more efficiently manage litigation and to avoid repetitive trials of the same issues, the desire of defendants who seek finality in the resolution of claims asserted against them, and the need to prevent prejudice to the ability of federal and state plaintiffs to prove their claims.

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Defendants tend to favor a single trial, arguing that a joint trial creates greater efficiencies for the court and the parties and will avoid what defendants call "duplicative damages." In seeking to avoid "duplicative damages," Defendants maintain that only one "overcharge" results from an antitrust violation, and that their liability should be limited to this single "overcharge." This creates a tension with the separate remedies provided under federal law and state law.⁸ Defendants also assert that a single trial involving all claimants will prevent them from being subject to "one-way" collateral estoppel because defendants may be bound by adverse determinations made against them but subsequent plaintiffs are typically not bound by determinations in favor of defendants in a preceding trial.⁹ In plaintiffs’ view, the joint trial causes juror confusion and prejudice on issues of liability and damages. Defendants may also view a joint trial as a wedge which may force an allocation of damages between the direct and indirect purchasers, as arguably the presence of parties representing multiple levels in the chain of distribution permits an analysis and determination of which plaintiffs suffered what damages based upon the expert analysis of the indirect purchasers — an analysis which is required under state laws permitting indirect purchaser claims, but which is forbidden for federal antitrust claims under Hanover Shoe.

A primary concern which defendants have raised about joint trials is the possibility that instructing the jury on state law consumer protection claims, which have different standards for liability, will confuse the jury’s analysis of the antitrust claims. An additional concern arises when defendants have settled with one group of plaintiffs but not the other. This complicates the cooperation which is typically part of settlements, as a defendant may be obligated to provide cooperation to one set of plaintiffs but that cooperation could benefit the plaintiffs with whom that defendant has not yet settled. Notwithstanding these concerns, joint trials appear to be defendants’ general preference.

Direct purchasers object to joint trials with indirect purchasers because a joint trial would necessarily violate the bar on pass-on evidence of Hanover Shoe. Direct purchasers assert that the presence of the indirect purchasers during trial will necessarily cause the jury to conclude that illegal overcharges were passed on by the direct purchasers to the indirect purchasers. Direct purchasers contend that even with limiting instructions, the presentation of their case will be prejudiced and they will be denied a fair trial.¹⁰ Indirect purchasers have similar concerns about jury confusion as they would prefer to have the jury focused on the typical consumer or business at the end of the chain of distribution, who cannot pass on overcharges to a subsequent purchaser. Indirect purchasers assert that presentation of evidence by the direct purchasers about their impact and injury would confuse the jury in evaluating the indirect purchasers’ claims of impact and injury, and thus deny them a fair trial.

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In addition, the business practices of vertically integrated companies could lead to cumulative or conflicting presentations of expert analysis of pass through of costs. This has been a concern in the electronics industry antitrust cases in the Northern District of California. For example, one Samsung entity might manufacture a component product such as a cathode ray terminal, which is then sold to another Samsung entity for sale directly to plaintiffs alleging Sherman Act claims, and indirectly to state law plaintiffs. These plaintiffs may have different analyses of the cost issues between the Samsung entities before the first sale outside of the conspiracy, and if the direct purchasers are permitted to go first it would be difficult for the indirect purchasers to present their evidence of pricing without confusing the jury.

Despite all of this, busy federal courts have a strong desire to conduct joint trials of state and federal antitrust actions to further the goal of judicial efficiency. However, it is difficult to envision a joint trial of direct and indirect purchaser claims that would not impair the plaintiffs’ claims. Conducting a joint trial would frustrate the paramount intention of Congress and the state legislatures that private enforcement of the antitrust laws be used to deter antitrust cartels and collusion. These issues played out in two post-CAFA cases in the Northern District of California, SRAM and TFT-LCD.

II. SRAM

A. Background

In In re Static Random Access Memory ("SRAM") Antitrust Litigation,¹¹ direct purchaser class plaintiffs and indirect purchaser class plaintiffs asserted claims against a number of defendants involving allegations of price-fixing in the market for static random access memory. As trial approached, the direct purchasers had settled with all defendants except Samsung Electronics Corp. and Cypress Semiconductor Corp. The indirect purchasers had settled with all defendants except Cypress.

The SRAM court sought to try as many common issues as possible, but myriad complications were present. For example, Samsung — which was no longer a defendant in the indirect purchaser case — had previously pled guilty to price fixing in the DRAM market, and evidence of this guilty plea was likely to come in as part of the direct purchaser case. Cypress contended that this evidence would unduly prejudice it, and asked that a separate jury be seated to consider the claims against Cypress to alleviate any potential taint from introduction of the guilty plea. In addition, Samsung had not only settled with the indirect purchasers on terms that included providing cooperation, but was also the amnesty applicant under the Department of Justice’s leniency program and thus under the Antitrust Criminal Penalty Enhancement and Reform Act ("ACPERA")¹² had duties to cooperate with the direct purchasers if it hoped to receive the benefit of limited damages under ACPERA.

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Further complications included the fact that the indirect purchaser claims included consumer protection and deceptive practices claims in addition to the antitrust claims. These state law claims involved different standards for liability than did the antitrust claims, and the defense raised concerns over whether the jury would be able to apply properly the different legal standards while applying the proper standard to the federal antitrust claim. Defendants argued that the jury instructions might undermine the "basic antitrust instructions" and thus prejudice defendants.

Direct purchasers asserted that the conflict between the evidence that indirect purchasers would introduce to show pass-through of overcharges, and thus antitrust impact and damages, and the strict bar on the pass through defense established by Hanover Shoe, made it impossible to fully try indirect and direct purchaser claims together. There are no jury instructions that could meaningfully prevent a jury from concluding that the direct purchaser plaintiff was not injured, and no way to prevent the result that Hanover Shoe bars — the defeat of a direct purchaser claim due to evidence that the overcharge was passed on to subsequent purchasers.

B. Plaintiffs’ Trial Proposals

The SRAM plaintiffs made several proposals to deal with the irreconcilable conflict a potential joint trial presented.¹³ The first proposal was that the two cases proceed jointly in trying the issue of whether the alleged conspiracy existed and violated federal and state law. If a conspiracy was found, the direct and indirect cases would then proceed separately on the issues of impact and damages. A second proposal was that the sole issue of whether there was a conspiracy in violation of the Sherman Act would be tried jointly. If the conspiracy was found, the direct purchasers would continue with their impact and damages case before the same jury, while a second jury would consider the state law issues, either concurrently with the direct purchaser case or after the direct purchaser case. Plaintiffs cited in support of their proposal Fed. R. Civ. Proc. 42(b), Manual for Complex Litigation, Fourth, Federal Judicial Center, § 11.632, and numerous antitrust cases where bifurcation had been ordered.¹⁴

As a final alternative, plaintiffs proposed that the direct purchasers’ case be tried first, followed by the indirect purchaser case with the indirect purchaser case benefitting from the potential collateral estoppel effect of findings made in the direct purchaser trial.

C. Samsung’s Trial Proposals

Samsung sought a joint trial of all of the direct and indirect purchaser claims. If the court did not permit a joint trial, Samsung proposed that the direct and indirect cases be severed for trial. Samsung argued that the court should reject the direct purchasers’ proposals for a joint trial on the issue of conspiracy because they would require duplication of evidence, create unnecessary disputes about what evidence was admissible in which phase, would unfairly prejudice Samsung, and would "potentially infringe upon Samsung’s constitutional right to a fair trial."¹⁵

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D. Cypress’ Trial Proposals

Cypress argued that no decision could be made about trial structure until the court determined whether evidence of Samsung’s guilty plea to fixing prices for DRAM would be admissible. Cypress then offered qualified support for a bifurcated trial with a first phase limited to conspiracy issues. These qualifications included (1) that plaintiffs be precluded from introducing expert testimony of increased SRAM prices during the conspiracy phase, i.e., price inflation could not be used to prove the conspiracy; (2) that extensive negotiations over what economic evidence would be permitted during the conspiracy phase were necessary; and (3) a determination of whether the indirect purchaser’s consumer protection claims would be tried under the same standard as their antitrust claims would need to be made to identify any potential risk of jury confusion from conflicting instructions.¹⁶ If bifurcation was not permitted, Cypress proposed that the direct purchaser trial proceed and the indirect purchaser case be stayed.

E. The Court’s Order

The court ruled that the trial on the direct and indirect conspiracy claims would proceed jointly, and that if the conspiracy was established the direct purchasers would proceed with the remainder of their case and then the indirect purchasers would proceed with their case. The Court said:

[Try the] conspiracy for IPs and DPs first. … Reach a verdict on that. … Send the IPs home. … And then go on to impact and damages for the DPs only. And then after that, bring the IPs back and try impact and damages … with the IPs.¹⁷

Shortly before trial, the direct purchasers settled with Cypress — the sole remaining common defendant with the indirect purchasers — and the case was set for the direct purchasers only to try against Samsung without the indirect purchasers.¹⁸ The direct purchasers and Samsung settled the day before trial was to begin.

II. TFT-LCD

Like SRAM, In re TFT-LCD (Flat Panel) Antitrust Litigation¹⁹ involved the trial of claims brought by both direct and indirect purchasers. The case also involved claims by numerous "direct action plaintiffs", or "DAPs" — i.e., opt-out plaintiffs asserting their own claims under federal or state law, sometimes as both direct and indirect purchasers — and claims brought by various state attorneys general. Defendants filed a motion to hold a single trial, titled "Motion of Defendants Regarding Trial Structure and for Relief to Avoid Duplicative Recovery."²⁰

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A. Defendants’ Trial Proposals

The defendants offered a smorgasbord of five trial plans, and encouraged the court to mix-and-match various aspects of the proposals as it saw fit. Almost all of defendants’ proposals were premised on their underlying goal of avoiding the dual recoveries permitted by federal and state law. These proposals were:

1. Bifurcate the damage issues in class trials and consolidate for trial with all DAP and AG actions.

This proposal ignored the fact that federal and state law permit separate recoveries,²¹ and was based on the conceit that there was one res — the overcharge resulting from the conspiracy — and that all plaintiffs were claimants to that same res. By forcing all of them to try their claims in one venue, before one jury, at the same time, Defendants hoped to avoid what they called "duplicative damages." Some of the defendants who filed this motion had pled guilty to violating the Sherman Act. Many defendants had pled guilty, and while some disputed the scope of the conspiracy or, for those who had not pled guilty, whether they had been involved, it was not subject to dispute that there had been a conspiracy. The Department of Justice has stated that the conspiracy had a significant impact on American businesses and consumers.²² Defendants offered no acceptable rationale for their attempt to end-run governing law providing for separate remedies for federal and state plaintiffs. Defendants’ proposal, if accepted, would have hopelessly confused the jury.

2. Join all Parties for Interpleader.

Defendants’ second proposal was to bifurcate liability and damages,²³ and then order that all parties in all cases — direct and indirect purchaser classes, DAPs, state attorneys general, and all other known "possible other parties"²⁴ — be joined pursuant to Fed. R. Civ. Proc. 22 or 28 U.S.C. § 1335. While defendants argued that there would be no need for interpleader if they prevailed on liability, they provided no suggestion as to what would happen if they lost on liability.

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3. "Declare the parties not before the Court in the class cases indispensable parties under Rule 19 and require the class plaintiffs to propose a resolution."²⁵

Defendants argued that parties not before the court had identical or overlapping claims for damages, and that the court was required to delay the trial to ascertain whether the absence of those parties created a risk that the defendants would incur "double, multiple, or otherwise inconsistent obligation[s]."²⁶ If the court agreed with defendants about this risk, the court would be required to determine whether the risk could be alleviated, and if not defendants proposed that the court consider dismissing the action.

4. Coordinate all State Actions with the Federal Action

Defendants’ next proposal was that the court coordinate the state court attorney general actions with the federal action, again to avoid duplicative recovery. Defendants cited admiralty cases to support their argument that remedies in antitrust cases should be viewed as a res, and that the proper approach was to determine a " just allocation of the res."²⁷

5. "Either issue an order that the direct action plaintiffs and state Attorneys General be estopped in their damage claims from taking any position inconsistent with the award made in the class trial, or issue an order that ‘vouches in’ anyone who has a related claim, alerting all interested parties that their claims may be waived if they do not seek to intervene in the class trial."²⁸

This proposal analogized the potential recoveries to victims of an antitrust conspiracy to a bankruptcy estate, and asserted that principles and procedures from bankruptcy law should be applied to the class plaintiffs, DAPs, state attorneys general, and anyone else who could potentially have a claim. Defendants argued "[l]ike bankruptcy, the underlying premise is that if there has been a wrong that resulted in alleged overcharges, that universe is not unlimited. Instead it would create a pool — the total found overcharge (if any) — against which claims could be drawn."

B. The Indirect Purchasers’ Trial Proposal

The indirect purchasers filed a motion to hold separate trials, arguing that the different defendants and the risk of prejudicial jury confusion counseled in favor of separate trials. Indirect purchasers also argued that the cooperation obligations of LG Display, which was a defendant in the indirect purchaser case but which had settled with the direct purchasers, would create complications in a joint trial and that there would be greater collateral estoppel benefits and a higher likelihood of future settlements if the indirect purchasers were to go to trial first. The indirect purchasers also argued that the damages to their class were much larger than those to the direct purchaser class, and that they should have trial priority based on that fact.

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C. The Direct Purchasers’ Trial Proposal

The direct purchasers filed a motion to bifurcate the trial into two phases. The direct purchasers proposed the following phases:

PHASE ONE: Direct and Indirect Purchasers present evidence of Defendants’ price-fixing conspiracy and resulting increases in TFT-LCD panel prices. Direct Purchasers present evidence of their damages. The jury determines whether Defendants conspired to fix prices, whether that conspiracy resulted in overcharges on TFT-LCD panels to Direct Purchasers, and Direct Purchasers’ damages.
PHASE TWO: If the jury returns a Plaintiffs’ verdict on the issue of conspiracy, Indirect Purchasers present evidence concerning their state law claims, including that overcharges were passed through to them. The jury determines Defendants’ liability to Indirect Purchasers and Indirect Purchasers’ damages.²⁹

The direct purchasers argued in sum that their case presented a subset of the indirect purchasers’ case — that the issues of the existence of a conspiracy and whether the conspiracy caused the prices of TFT-LCD panels to be increased were common and only needed to be determined once. Direct purchasers argued that their proposal "helps head off a potential misapplication of the law by the jury and eases the burden on the Court, the parties, and the panel." ³⁰ Direct purchasers argued strenuously that under no circumstances could the jury be permitted to consider whether they had passed on overcharges to subsequent purchasers, citing Hanover Shoe, Kendall v. Visa U.S.A., Inc.,³¹ Royal Printing Co. v. Kimberly-Clark Corp.³² and Meijer, Inc. v. Abbott Labs.³³ Under the direct purchasers’ proposal, all issues would be tried to the same jury. The direct purchasers did not provide any explanation of how the jury would react upon hearing that, in the event of a plaintiff verdict, it would return to award additional damages to a second set of plaintiffs.

Indirect purchasers opposed the direct purchaser motion,³⁴ calling it an "unprecedented" proposal that would create a "severe risk of prejudice to the IPPs based on the jury potentially reducing the IPP damages by any amount it may award first to the DPPs."³⁵ Citing section 21.5 of the Manual on Complex Litigation, Fourth, indirect purchasers argued that the direct purchasers’ proposal would deny them their right to a fair and balanced presentation of their claims and defenses. Indirect purchasers argued that if bifurcation were ordered, their claims should proceed to trial first because their claims were larger and involved more defendants.

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In TFT-LCD, the direct purchasers asserted claims based on Royal Printing for purchases not from the conspirators, but from wholly-owned subsidiaries of the conspirators — that is, indirect purchases within an exception to Illinois Brick. This exception is based upon the policy of encouraging private enforcement of the antitrust laws as a way to deter illicit conduct. ³⁶ If Illinois Brick were construed to mean that only the wholly-owned subsidiary or affiliate of a conspirator could bring a claim, price-fixers could insulate themselves from liability simply by selling price-fixed products through an entity which they controlled.

The indirect purchasers argued that the majority of the direct purchasers’ proof of impact and damages involved class members’ claims based upon Royal Printing who had purchased their TFT-LCD products indirectly from defendants as a result of purchases from affiliates or subsidiaries of defendants. The direct purchasers intended to present expert economic evidence including an analysis of the "downstream effect of panel prices as part of finished product prices as a basis for an estimate of the finished product overcharge."³⁷ Indirect purchasers argued that the direct purchasers’ expert witness on these issues offered a different analysis and measure of pass-through and overcharge than did the indirect purchasers’ experts, and that they would be prejudiced by being forced to rely on the direct purchasers’ expert testimony. As an alternative, the indirect purchasers proposed holding a "single, joint class action trial, and handle any issues with appropriate instructions to the jury."³⁸

D. The Court’s Order

The Court ordered that the two cases would proceed to trial jointly as follows:

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In the first phase, Direct- and Indirect-Purchaser Plaintiffs ("DPPs" and "IPPs") will present evidence of Defendants’ price-fixing conspiracy. In addition, DPPs will present their evidence of increases in TFT-LCD panel prices and of their damages. The jury will be asked to make a finding on the existence of the alleged price-fixing conspiracy, and if their finding is positive, on liability to the DPPs and the amount of DPP damages. In the second phase, IPPs will present their evidence concerning their state law claims, including increases in TFT-LCD panel prices and pass-ons, and the amount of damages. The jury will then be asked to make a finding on liability to the IPPs and the amount of IPP damages.
The jury will be informed, at the outset, that the trial will proceed in these two phases, and will be given a general statement as to the purpose of each of the phases.³⁹

The indirect purchasers then settled their remaining claims, and only the direct purchaser claims went to trial.

III. LESSONS FROM SRAM AND TFT-LCD

The experience of SRAM and TFT-LCD illustrate the difficulty in protecting the rights of federal plaintiffs, state plaintiffs, and defendants to a fair trial when all of the claims proceed in the same court. Private enforcement of the antitrust laws has been a primary goal of Congress and the state legislatures from the time that the antitrust laws were enacted, and that goal has been repeatedly recognized by the United States Supreme Court and the California Supreme Court.⁴⁰

One of CAFA’s unfortunate consequences has been to move state law antitrust actions to federal court, further burdening already busy federal courts and impeding the states’ ability to develop their own law. There can be no doubt that the situation presented in SRAM and TFT-LCD will be repeated — indeed, on July 3, 2014, an order providing for separate trials of direct, indirect, and opt-out claims was entered in In re Polyurethane Foam Antitrust Litig.⁴¹ In its order, the Polyurethane Foam court provided for three trials — first for the direct purchaser class, then for direct action plaintiffs, and then for the indirect purchaser class.

The desire of federal courts presiding over these actions to create judicial efficiencies by trying federal and state antitrust cases together creates a substantial risk of prejudicing either the federal or state plaintiffs, and consequently could lead to diminished private antitrust enforcement. This would violate the goals of Congress and the state legislatures, and would impair cartel deterrence. To further the goal of deterrence — especially in the face of cartels such as the automotive parts conspiracy, which the United States Department of Justice has termed the largest it has ever encountered in terms of impact on American consumers and businesses⁴² — caution must be exercised to conduct trials in a manner that protects the rights granted to federal claimants under the Sherman and Clayton Acts and the rights granted to state law plaintiffs bringing claims under state antitrust laws.

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Notes:

^1. Steve Williams is a partner at Cotchett, Pitre & McCarthy, LLP’s Burlingame, California office. The author sincerely thanks Gabriel Peixoto for his contributions to this article.

^2. California v. ARC Am. Corp. ("ARC America"), 490 U.S. 93, 105 (1989).

^3. 28 U.S.C. §§ 1332(d), 1453, and 1711-1715.

^4. Antitrust Modernization Commission, Request for Public Comment, 70 Fed. Reg. 28,902 (May 19, 2005).

^5. Ill. Brick Co. v. Illinois, 431 U.S. 720 (1977) ("Illinois Brick").

^6. Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481 (1968) ("Hanover Shoe").

^7. Antitrust Modernization Commission, Request for Public Comment, supra N.Y.

^8. See ARC America, 490 U.S. at 105.

^9. See, e.g., Gary A. Winters, Trial Issues in Consolidated Direct and Indirect Purchaser Cases: Lessons from the SRAM Litigation, ABA Antitrust Trial Practice Newsletter, Spring 2011.

^10. See, e.g., United States v. Candoli, 870 F.2d 496, 510 (9th Cir. 1989)^.

^11. MDL no. 1819, N.D. Cal. Case no. 07-cv-1819-CW.

^12. Pub. L. No. 108-237, § 213(b), 118 Stat. 665, 666 (codified as amended at 15 U.S.C. § 1 note).

^13. N.D. Cal. case no. 07-md-1819-CW, Dkt. no. 1170 at 17.

^14. M2 Software, Inc. v. Madacy Entertainment, 421 F.3d 1073, 1088 (9th Cir. 2005); Hydrite Chemical Co. v. Calumet Lubricants Co., 47 F.3d 887 (7th Cir. 1995); Impervious Paint Industries v. Ashland Oil, Inc., 1980 WL 1789, at *9 (W.D. Ky., Jan. 4, 1980); Knutson v. Daily Review, Inc., 479 F.Supp. 1263, 1266 (C.D. Cal. 1979).

^15. N.D. Cal. case no. 07-md-1819-CW, Dkt. no. 1170 at 24:2.

^16. Id. at 31-33.

^17. Hr’g Tr. 27-28, In re Static Random Access Memory (SRAM) Antitrust Litig., Case No. 4:07-md-01819-CW (N.D. Cal.) (Dec. 14, 2010).

^18. N.D. Cal. Case no. 07-1819, Dkt. No. 1282.

^19. MDL No. 1827, N.D. Cal. Case No. M-07-1827 SI.

^20. N.D. Cal. Case No. 07-1827, Dkt. No. 5258.

^21. ARC America, 490 U.S. at 105.

^22. See, e.g., Department of Justice press release "LG, Sharp, Chunghwa Agree to Plead Guilty, Pay Total of $ 585 Million in Fines for Participating in LCD Price-fixing Conspiracies" (noting sales of price-fixed TFT-LCD panels to Dell Inc., Motorola Inc., and Apple Computer, Inc. and stating "'[t]hese price-fixing conspiracies affected millions of American consumers who use computers, cell phones and numerous other household electronics every day,’ said Thomas O. Barnett, Assistant Attorney General in charge of the Department’s Antitrust Division.") Available at http://www.justice.gov/opa/pr/2008/November/08-at-1002.html.

^23. Defendants’ bifurcation proposal was heavily qualified: "Defendants suggest bifurcation only if the Court orders consolidation of the damages phase of all actions to avoid duplicative recovery. Defendants do not believe that bifurcation would be appropriate otherwise and would oppose bifurcating liability and damage phases in any particular case." N.D. Cal Case No. D7-1827, Dct. No. 5258. 18 n. 7.

^24. Id. at 18:20.

^25. Id. at 19:4-5.

^26. Id. at 19:12-13 (quoting Fed. R. Civ. P. 19(a)(1)(B)(ii)).

^27. Id. at 20:24.

^28. Id. at 21:6-10.

^29. N.D. Cal. Case No. 07-1827, Dkt. No. 5455.

^30. Id. at 2:23-24.

^31. 518 F.3d 1042 (9th Cir. 2008).

^32. 621 F.2d 323 (9th Cir. 1980).

^33. 251 F.R.D. 431, 433 (N.D. Cal. 2008).

^34. N.D. Cal. Case No. M-07-1827, Dkt. No. 5488.

^35. Id. at 1:3-5.

^36. See, e.g., In re Optical Disk Drive Antitrust Litigation, case no. 3:10-md-2143 RS, 2012 U.S. Dist. LEXIS 55300, *32 (N.D. Cal. April 19, 2012) ("[m]oreover, as Royal Printing observed, ‘blind application’ of the Illinois Brick rule should be avoided where it ‘would eliminate the threat of private enforcement.’").

^37. N.D. Cal. Case No. M-07-1827, Dkt. No. 5488 at 2:2-3.

^38. Id. at 4:11-13.

^39. N.D. Cal. Case No. M-07-1827, Dkt. No. 5518.

^40. See, e.g., Minn. Mining & Mfg. Co. v. N.J. Wood Finishing Co., 381 U.S. 311, 318-19 (1964) ("Minn. Mining") ("Congress has expressed its belief that private antitrust litigation is one of the surest weapons for effective enforcement of the antitrust laws"); Clayworth v. Pfizer, Inc., 49 Cal.4^th 758, 764 (2010) (noting "Legislature’s overarching goals [in enacting and amending the Cartwright Act] of maximizing effective deterrence of antitrust violations, enforcing the state’s antitrust laws against those violations that do occur, and ensuring disgorgement of any ill-gotten proceeds").

^41. MDL 2196, N.D. Ohio case no. 1:10-md-2196, Dkt. no. 1272 at 2.

^42. "Auto parts price —fixing probe has expanded —DOJ" Reuters, February 15, 2013 ("’It’s still very much ongoing, but it already appears to be the biggest criminal antitrust investigation that we’ve ever encountered,’ [Deputy Assistant Attorney General Scott] Hammond said. ‘I say (it is) the biggest with respect to the impact on U.S. businesses and consumers, and the number of companies and executives that are subject to the investigation.’").