The 2013 Antitrust Review of the Americas features an article by Baker Hostetler Antitrust Group Chair Robert G. Abrams, Partner Gregory J. Commins Jr. and Counsel Danyll W. Foix. “‘Rigorous Analysis’: Recent Developments in Antitrust Class Action Litigation in the United States” examines recent developments in antitrust class action case law over the past two years concerning how much ‘rigorous’ analysis is too much, or too little.
Supreme Court and appellate court decisions continue to shape the debate surrounding whether, and under what conditions, an antitrust case is amenable to class action treatment. Currently, antitrust class actions are subjected to ‘rigorous’ scrutiny complete with full discovery, sophisticated economic analysis and the requisite ‘battle of the experts.’ What remains to be determined, however, is a far more difficult question – what does it mean to conduct a rigorous analysis? Or stated differently, how much rigor does it take to be rigorous?
As the answers to these questions unfold, it seems clear courts will continue to require parties to support their allegations with evidence. But the trend also is likely to require defendants to meet the same evidentiary standard; simply poking holes in plaintiffs’ arguments may not suffice in the future.
In sum, plaintiffs and defendants are well advised to be rigorous in their analyses – and to support their allegations and assertions with admissible evidence and reliable economic opinion.