Downstream Discovery in Antitrust Class Actions
21 July 2006
By Dr. Laila Haider, Dr. John H. Johnson, IV with O'Melveny and Myers Partner Ian Simmons
In antitrust class actions, a trend towards the bifurcations of class certification discovery and "merits" discovery has recently emerged. Along with this trend, courts are increasingly confronting motions for downstream discovery at the class certification phase.
In this article, NERA Senior Consultant Dr. Laila Haider, former Vice President Dr. John H. Johnson, and O'Melveny and Myers Partner Ian Simmons discuss the potential purpose and relevance of downstream discovery in antitrust class actions, demonstrating how information gathered from downstream discovery is directly relevant for the assessment of common impact and damages issues. Although they acknowledge that the facts and circumstances of a given case must dictate the appropriateness of allowing downstream discovery at the class certification phase, the authors argue that downstream discovery can provide valuable information in antitrust class certification matters and that its exclusion, often based on the Hanover Shoe case, is a misreading of the case law.
This article appeared in The Antitrust Practitioner, July 2006, volume 4, published by the American Bar Association Section of Antitrust Law Civil Practice and Procedure Committee.
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