Class Certification in Antitrust
NERA experts regularly prepare economic analyses that examine whether or not impact (the fact of damage) and damages (the overcharge amount) can be proved on a common, class-wide basis for all members of a proposed class using common evidence, or if instead individual evidence is needed to demonstrate impact and damages customer by customer, or for different groups of customers. The most effective economic evidence regarding class certification will consider both economic theory and empirical tests, and will carefully examine:
- the facts and allegations specific to the complaint;
- the characteristics of the products or services at issue;
- the prices actually paid and the pricing mechanisms for the products or services; and
- the characteristics of the proposed class and class representatives and the nature of the alleged conspiracy.
When these analyses demonstrate that significant variability exists among the alleged class members, it may not be possible to establish impact (or damages) on a class-wide basis. In such cases, the amount of damages sustained by a customer will need to account for individual factors and cannot be reduced to a single class-wide formula.
NERA's experts also use economic and econometric analyses to identify potential conflicts among members of the purported class. For example, the alleged conspiracy may affect different members of the purported class significantly differently. Alternatively, empirical results from damages models may uncover potential conflicts among the members of the purported class.
