Applied Antitrust Law

Dale Collins
NYU School of Law
Georgetown University Law Center

NB: "±" indicates that the hyperlink will take you to another site.

 

Home page
Topical index
Case studies index

4. Private cause of action

 

6. Conspiracy

 

 

5. Antitrust Class Actions

 

Reading and class notes
Significant precedents
The structure of class actions
The Indianapolis Ready-Mix Concrete follow-on class action
The High Tech Employees "No Poach" follow-on class action
The Urethane class action
NYC Hop-On, Hop-Off Bus Tour Class Action Settlement
Related actions
Reference materials
Case studies

 
Primary Materials
Supplemental Materials

Reading and Class Notes

Reading and class notes

Unit 5 reading

Case study: High Tech Employees “No Poach” Antitrust Litigation

Case study: Urethane Antitrust Litig. (Dow Chem. Co. v. Seegott Holdings, Inc.)

Unit 5 class notes

 

Significant Precedents

Generally

Tyson Foods Inc. v. Bouaphakeo, No. 14-1146 (Mar. 22, 2016) (reported at 136 S. Ct. 1036) (± Oyez)

± SCOTUS blog page

District court materials

Original Class Action and Representative Action Complaint, Sharp v. Tyson Foods, Inc., No. 5:07-cv-04009-JAJ (N.D. Iowa filed Feb. 6, 2007)

Docket sheet (downloaded May 9, 2016)

Memorandum Opinion and Order Regarding Plaintiffs’ Motions for Conditional Certification as a Collective Action under the FSLA and Certification as a Class Action under Federal Rule of Civil Procedure 23 (July 3, 2008) (reported at 564 F. Supp. 2d 870)

Note: The above opinion also recaptioned the case as Bouaphakeo v. Tyson Foods Inc. due to the dismissal of Sharp and several other plaintiffs. See id. at n.1..

Trial materials:

Mericle Table 6 (times for the fabrication department)
Mericle Table 6 (times for the kill department)
Certain Activities Included in Dr. Mericle's Determination of Times

Summary of Key Fox Testimony

Jury verdict (Sept. 26, 2011)

Defendant’s Renewed Motion for Judgment as a Matter of Law and Motion to Decertify or, in the Alternative, for a New Trial on Damages (Oct. 24, 2011)

Defendant’s Memorandum in Support of its Renewed Motion for Judgment as a Matter of Law and Motion to Decertify or, in the Alternative, for a New Trial on Damages (Oct. 24, 2011)

Plaintiffs' Brief Opposing Defendant Tyson's Renewed Motion for Judgment as a Matter of Law and to Decertify or Alternatively for a New Trial (Nov. 15, 2011)

Defendant’s Reply in Support of its Renewed Motion for Judgment as a Matter of Law and Motion to Decertify or, in the Alternative, for a New Trial on Damages (Dec. 1, 2011)

Order (Sept. 26, 2012) (denying motion) (reported at 2012 WL 4471119)

Eight Circuit

Tyson Foods Inc. v. Bouaphakeo, No. 12-3753 (8th Cir. Aug. 25, 2014) (affirming judgment and award) (reported at 765 F.3d 791)

Docket sheet (downloaded May 9, 2016)

Supreme Court

Petition for a Writ of Certiorari (Mar. 19, 2015)

Brief of Petitioner (Aug. 7, 2015)

Brief for Respondents (Sept. 22, 2015)

Brief for the United States as Amicus Curiae Supporting Respondents (Sept. 29, 2015)

Reply Brief of Petitioner (Oct. 21, 2015)

NB: For amicus briefs, see ± SCOTUS blog page

 

Wal-Mart Stores, Inc. v. Dukes, No. 10-277 (U.S. June 20, 2011) (reported at 131 S. Ct. 2541) (± Oyez)

District court

Order Granting in Part and Denying in Part Motion for Class Certification, Dukes v. Wal-Mat Strores, Inc., No. C 01-02252 MJJ (N.D. Cal. June 21, 2004) (reported at 222 F.R.D. 137)

 
 

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) (settlement class actions) (± Oyez)

General Tel. Co. of Southwest v. Falcon, 457 U.S. 147 (1982) (typicality) (± Oyez)

Eisen v. Carlisle and Jacquelin, 417 U.S. 156 (1974) (± Oyez) (notice to class members)

Antitrust

Comcast Corp. v. Behrend, No. 11-864 (U.S. Mar. 27, 2012)
(see below for case materials)

American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974)

The Structure of Class Actions

Joinder

± Fed. R. Civ. P. 18
(joinder of claims)

± Fed. R. Civ. P. 19
(required joinder of parties)

± Fed. R. Civ. P. 20
(permissive joinder of parties)

Barbara J. Rothstein & Thomas E. Willging, Managing Class Action Litigation: A Pocket Guide for Judges (Fed. Jud. Ctr. 3d ed. 2010)

The structure of class actions

± Fed. R. Civ. P. 23
(class actions)

S.D. Ind. L.R. 23.1 (local rule governing class actions)

± Fed. R. Civ. P. 20
(permissive joinder of parties)

± S.D. Ind. L.R. (complete)

 

Class Action Fairness Act (CAFA)

 

Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (2005)

± Gregory G. Wrobel & Michael J. Waters, Early Returns: Impact of the Class Action Fairness Act on Federal Jurisdiction Over State Law Class Actions, Antitrust, Fall 2006, at 45.

Appointment of class counsel

± Review Rule 23(g)

Manual for Complex Litigation (Fourth) § 10.2 (2004) (role of counsel)

Manual for Complex Litigation (Fourth) § 40.22 (2004) (sample order re responsibilities of designated counsel)

± Manual for Complex Litigation (Fourth) (2004) (complete)

 

Memorandum and Order, In re Parking Heaters Antitrust Litig., 15-MC-0940 (JG) (JO) (E.D.N.Y. Aug. 11, 2015) (appointing interim class counsel) (reported at 310 F.R.D. 54)

Order, In re Parking Heaters Antitrust Litig., 15-MC-0940 (JG) (JO) (E.D.N.Y. Aug. 11, 2015) (assigning duties to interim class counsel)

Prior DOJ action:

Information, United States v. Espar Inc., No. 1:15-cr-00028-JG (E.D.N.Y. filed Mar. 12, 2015)

Plea Agreement (Mar. 12, 2015) (agreeing to pay a criminal fine of $14,970,000 million)

Follow-on private action

Class Action Complaint for Federal Antitrust Violations, Triple Cities Acquisition LLC v. Espar, Inc., No. 15-cv-1343 (E.D.N.Y. filed Mar. 16, 2015) (one of multiple actions consolidated in In re Parking Heaters Antitrust Litigation)

Order (May 28, 2015) (consolidating cases)

Docket sheet (downloaded Mar. 17, 2016)

Minute Order (July 31, 2015) (directing the Clerk of Court to amend the case captioned as follows: In re Parking Heaters Antitrust Litigation)

Joint Status Report (July 31, 2015)

[Proposed] Case Management Order No. 1 (Oct. 28, 2015)

DOJ letter to Judge Orenstein (Oct. 30, 2015)

DOJ letter to Judge Orenstein (Oct. 30, 2015) (detailing reasons) (redacted)

Order ("The government objects that the parties' agreement, inter alia, to the effect that the defendants will produce to the plaintiffs certain categories of documents 'as agreed to by the Parties' will allow the parties or others to infer certain information about the government's deliberations or investigative actions. I disagree that that is a basis for me to prohibit the parties from agreeing to exchange information on terms they find mutually agreeable. I therefore overrule the government's objections to the parties' jointly proposed case management order.")

The Indianapolis Ready-Mix Concrete Follow-On Class Action

Second Amended Consolidated Class Action Complaint

Second Amended Consolidated Class Action Complaint, In re Ready-Mixed Concrete Antitrust Litig., No. 1:05-cv-00979-SEB-VSS (Mar. 8, 2007)

This is an amended and final version of the original complaint that was assigned in Private Actions.

Docket Sheet (downloaded Feb. 19, 2011) (terminated Sept. 14, 2010)

Appointment of class counsel

Minute Entry (Sept. 19, 2005)

Motion for Entry of Order: (1) Consolidating Related Actions; (2) Setting Certain Pretrial Procedures; and (3) Appointing Irwin B. Levin As Plaintiffs' Lead Counsel (Aug. 30, 2005) (proposed Pretrial Order No. 1) (by plaintiffs)

Memorandum of Law in Support of Motion for Entry of Order: (1) Consolidating Related Actions; (2) Setting Certain Pretrial Procedures; and (3) Appointing Irwin B. Levin As Plaintiffs' Lead Counsel (Aug. 30, 2005) (Exhibits A, B, C)

Defendant Irving Materials, Inc.'s Motion for Entry of Defendant's Proposed Pretrial Order No. 1 (Sept. 6, 2005)

[Proposed] Pretrial Order No. 1

Defendant Irving Materials, Inc.'s Brief in Response to Motions to Consolidate and in Support of Defendant's Proposed Pretrial Order No. 1 (Sept. 6, 2005)

Motion to Consolidate, to Appoint Interim Lead Counsel and for Entry of Case Management Order No. 1 and Brief in Support (Sept. 7, 2005) (proposing Steve Susman as lead counsel)

Declaration of Stephen D. Susman
Proposed Case Management Order

Irwin B. Levin’s Combined Reply to: (1) Irving Materials, Inc.’s Response to Motions to Consolidate; (2) Defendants’ Motion for Entry of Proposed Pretrial Order No. 1; and (3) Supplemental Lead Counsel Submissions of Susman Group and Spector Group (Sept. 14, 2005)

Defendant Irving Materials, Inc.'s Response to Susman Group's Second Motion to Consolidate and for Appointment of Interim Counsel under Rule 23(g) (Sept. 16, 2005)

 

Motion for class certification

 

 

Plaintiffs’ Motion for Class Certification (Aug. 1, 2007)

Plaintiffs’ Motion to Amend Class Certification Briefing Schedule (Feb. 23, 2006)

[Redacted] Memorandum in Support of Motion for Class Certification (Aug. 1, 2007)

Note: Dr. Beyer's expert declaration was filed under seal

Opposition to class certification and motion to exclude plaintiffs' expert testimony

 


IMI Defendants' Motion to Exclude Expert Testimony and Opinions of Dr. John Beyer (Apr. 7, 2008) (attachments A and B) (proposed order)

IMI Defendants' Memorandum in Opposition to Plaintiffs' Motion for Class Certification and in Support of Motion to Exclude Expert Testimony and Opinion of Dr. John Beyer (Apr. 7, 2008) (Exhibits 4—Beyer deposition excerpts)

Builder’s Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Class Certification and in Support of their Motion to Exclude Report and Testimony of John C. Beyer (Apr. 7, 2008) (Tab H—Beyer deposition excerpts)

± Fed. R. Civ. P. 26(a)(2)
(disclosure of expert testimony)

± Fed. R. Civ. P. 26(e)(2)
(supplementation)

Plaintiffs' reply to defendants' class certification opposition and motion to exclude

 

Not available. Plaintiffs’ Consolidated Reply In Support of Motion for Class Certification and Plaintiffs’ Consolidated Response in Opposition to Defendants’ Motion to Exclude the Expert Testimony of Dr. John R. Beyer were filed under seal and redacted versions were not placed in the pubic record.

Court decision on class certification

Order Addressing Pending Motions (Sept. 9, 2009) (reported as In re Ready-Mixed Concrete Antitrust Litig., 261 F.R.D. 154 (S.D. Ind. 2009))

 
 

Order Granting Motion for Class Certification, In re Online DVD Rental Antitrust Litig., No. M 09-2029 PJH (N.D. Cal. Dec. 23, 2010) (reported at 2010 WL 5396064)

NB: In Fosmire v. Progressive Max Ins. Co., 3:10-cv-05291-JLR (W.D. Wash. 2011) (reported at 2011 WL 4801915), the district court noted its "doubts that the lax standard set forth in In re Online DVD Rental remains viable following the Supreme Court's decision in Dukes and its dicta indicating that some form of Daubert analysis is applicable at the class certification stage." Id. at 11 n.9.

Notice of Motion and Plaintiffs' Motion for Class Certification; Memorandum in Support Thereof (Mar. 23, 2010)

Expert Report of John C. Beyer, Ph.D. Pursuant to Federal Rule 26(a)(2)(B) in Support of Class Certification (Mar. 23, 2010)

Defendants' Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Class Certification (Sept. 1, 2010)

Expert Report of Janusz A. Ordover in Opposition to Class Certification (Sept. 1, 2010)

 

Memorandum Opinion, Kottaras v. Whole Foods Mkt., Inc., Civ. A. No. 08-1832 (JEB) (D.D.C. Jan. 30, 2012) (reported at 281 F.R.D. 16)

 

Class Action Complaint (Oct. 27, 2008)

Docket sheet (downloaded Dec. 25, 2012)

Plaintiff's motion for class certification and supporting papers were filed under seal on January 19, 2010. No public version appears to be available.

Whole Foods Market, Inc.'s Memorandum of Law in Opposition to Plaintiff's Motion for Class Certification (Apr. 12, 2010) (public version filed Apr. 19, 2010)

Plaintiff's Reply Brief in Support of Plaintiff's Motion for Class Certification (June 9, 2010) (filed under seal; no public version available)

Motion for Leave to File a Surreply in Opposition to Plaintiff's Motion for Class Certification (July 26, 2010; public version filed Aug. 2, 2010; minute order granting motion filed Aug. 30, 2010)

Stipulation (D.D.C. filed Feb. 2, 2012)

Petition Pursuant to Federal Rule of Civil Procedure 23(f) for Interlocutory Appeal of United States District Court for the District of Columbia's Denial of Plaintiff-Respondent's Motion for Class Certification (D.C. Circuit filed Feb. 13, 2012)

Defendant’s Answer in Opposition to Rule 23(f) Petition (D.C. Circuit filed Feb. 27, 2012)

Petitioner Ekaterini Kottaras’ Reply in Support of her Rule 23(f) Petition for Interlocutory Appeal (D.C. Cir. filed Mar. 8, 2012)

Order (D.C. Circuit Apr. 20, 2012) (denying Rule 23(f) to appeal denial of class certification)

Stipulated Entry of Judgment (D.D.C. May 25, 2012)

Preliminary approval of American Concrete and Shelby settlements

 

American Concrete settlement:

Plaintiffs' Motion for Preliminary Approval of Settlement Agreement with Defendant American Concrete Company, Inc. (Oct. 29, 2007) (Settlement Agreement) (Proposed Order for Preliminary Approval)

Memorandum in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement Agreement with Defendant American Concrete Company, Inc. (Oct. 29, 2007)

Shebly settlement:

Plaintiffs’ Motion for Preliminary Approval of Settlement Agreement with Defendants Shelby Gravel, Inc. D/B/A Shelby Materials, Richard Haehl, And Philip Haehl (Nov. 5, 2007) (Settlement Agreement) (Proposed Order for Preliminary Approval) (brief omitted)

Order Preliminarily Approving Settlement, Certifying Settlement Class, and Directing Notice (Nov. 8, 2007) (for American Concrete)

Order Preliminarily Approving Settlement, Certifying Settlement Class, and Directing Notice (Nov. 8, 2007) (for Shelby)

± Ready-Mixed Concrete Antitrust Litigation Website

Motion for reconsideration of preliminary approval of partial settlement

 

Defendants' Motion to Reconsider Orders Certifying Settlement Classes (Nov. 21, 2007)

Plaintiffs’ Opposition to Non-Settling Defendants’ Motion for Reconsideration of Orders Granting Preliminary Approval to Settlement Agreements and Certifying Settlement Classes as to American Concrete and Shelby Gravel (Dec. 10, 2007)

Defendants' Reply in Support of Motion to Reconsider Orders Certifying Settlement Classes (Dec. 21, 2007)

IMI Defendants' Reply in Support of Motion to Reconsider Settlement Class Orders (Dec. 21, 2007)

Order Denying Motions To Reconsider (Jan. 15, 2008)

Final approval of partial settlements with American Concrete and Shelby
 

Joint Motion for Final Approval of Settlement Agreement with Defendant American Concrete Company, Inc. (Mar. 28, 2007) (proposed order)

Joint Motion for Final Approval of Settlement Agreement with Defendants Shelby Gravel, Inc. D/B/A Shelby Materials, Richard Haehl, and Philip Haehl (Mar. 28, 2007) (proposed order)

Plaintiffs’ Memorandum in Support of Joint Motions for Final Approval of Settlements with American and Shelby Defendants (Mar. 28, 2007)

Order and Judgment Approving Settlement (Apr. 4, 2007) (for American Concrete)

Order and Judgment Approving Settlement (Apr. 4, 2007) (for Shelby)

NOTE: Defendants Southfield Corporation f/k/a Prairie Material Sales, Inc. and Gary Matney settled on Apr. 24, 2008 (papers omitted)

Transcript of fairness hearing

Plan of distribution of partial settlement
 

Plaintiffs’ Motion for Approval of Proposed Plan of Distribution of Settlement Funds, Award of Attorneys’ Fees and Reimbursement of Expenses, and Award of Class Representatives’ Incentive Fees (Mar. 3, 2009) (proposed order)

Memorandum in Support of Plaintiffs’ Motion for Approval of Proposed Plan of Distribution of Settlement Funds, Award of Attorneys’ Fees And Reimbursement of Expenses, and Award of Class Representatives’ Incentive Fees (Mar. 3, 2009)

Non-Settling Defendants’ Joint Response to Plaintiffs’ Motion for Approval of Proposed Plan of Distribution of Settlement Funds (Mar. 23, 2009) (Exhibits 1, 2, 3)

Plaintiffs’ Reply in Support of Motion for Approval of Proposed Plan of Distribution of Settlement Funds, Award of Attorneys’ Fees and Reimbursement of Expenses, and Award of Class Representatives’ Incentive Fee (Mar. 27, 2009)

Order Granting Plaintiffs’ Motion for Approval of Proposed Plan of Distribution of Settlement Funds, Award of Attorneys’ Fees and Reimbursement of Expenses, and Award of Class Representatives’ Incentive Fee (Mar. 31, 2009)

Trial schedule
 

Motion to Schedule Jury Trial (Sept. 16, 2009) (proposed order)

Order Appointing Class Counsel (Sept. 22, 2009)

ENTRY - Plaintiffs have negotiated settlements with all of the defendants in this cause. Therefore, the June 29, 2010, final pretrial conference and the July 12, 2010, trial dates are, VACATED. Signed by Judge Sarah Evans Barker on 6/25/2010.(MAC) (Entered: 06/28/2010)

IMI settlement

Plaintiffs’ Motion for Preliminary Approval of Settlement Agreement with Defendants Irving Materials, Inc., Fred R. (Pete) Irving, Daniel Butler, John Huggins, and Price Irving (Dec. 15, 2009)

Exhibit 1: Settlement Agreement

 

Order Preliminarily Approving Settlement, Certifying Settlement Class, and Directing Notice (Dec. 18, 2009)

Order and Final Judgment Approving Settlement (Mar. 30, 2010)

Memorandum in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement Agreement with Defendants Irving Materials, Inc., Fred R. (Pete) Irving, Daniel Butler, John Huggins, and Price Irving (Dec. 15, 2009)

Transcript of Fairness Hearing (Mar. 29, 2010) (for the IMI settlement)

Remaining settlements

Summary of Ready Mixed settlements (as of Mar. 8, 2010)

 

Hughey settlement:

Plaintiffs’ Motion for Preliminary Approval of Settlement Agreement with Hughey, Inc. D/B/A Carmel Concrete Products and Scott D. Hughey (Feb. 1, 2010)

Exhibit 1: Settlement Agreement

Exhibit 2: Order on Trustee’s Motion to Approve Settlement Agreement with Class Action Plaintiffs

Exhibit 3: Order Preliminarily Approving Settlement, Certifying Settlement Class, And Directing Notice

Order Preliminarily Approving Settlement, Certifying Settlement Class, and Directing Notice (Feb. 11, 2010)

Notice of Class Member Exclusions from Settlement Agreement with Hughey, Inc. d/b/a Carmel Concrete Products and Scott D. Hughey (Apr. 19, 2010)

Order and Judgment Approving Settlement (May 17, 2010)

Beaver settlement:

Memorandum in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement Agreement with Ma-Ri-Al Corporation D/B/A Beaver Materials Corporation, Chris Beaver, and Ricky Beaver (Feb. 1, 2010)

Order Preliminarily Approving Settlement, Certifying Settlement Class, and Directing Notice (Feb. 11, 2010)

Notice of Class Member Exclusions from Settlement Agreement with Ma-Ri-Al Corporation d/b/a Beaver Materials Corporation, Chris Beaver, and Ricky Beaver (Apr. 19, 2010)

Final Approval Order (May 17, 2010)

Order Granting Plaintiffs’ Motion for Award of Attorneys’ Fees, Reimbursement of Expenses and Award of Class Representatives’ Incentive Fee from Beaver and Hughey Settlements (May 17, 2010)

Builder's settlement:

Plaintiffs’ Motion for Preliminary Approval of Settlement Agreement with Builder’s Concrete & Supply, Inc., Gus B. (“Butch”) Nuckols, IIII and John J. Blatzheim (Apr. 6, 2010)

Memorandum in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement Agreement with Builder’s Concrete & Supply, Inc., Gus B. (“Butch”) Nuckols, IIII and John J. Blatzheim (Apr. 6, 2010)

Exhibit 1: Settlement Agreement with Builder’s Concrete & Supply, Inc., Gus B. (“Butch”) Nuckols, IIII and John J. Blatzheim

Exhibit 2: Proposed Order

Order Preliminarily Approving Settlement, Certifying Settlement Class, and Directing Notice (Apr. 8, 2010)

Notice of Class Member Exclusions from Settlement Agreement with Builder’s Concrete & Supply, Inc., Gus B. (“Butch”) Nuckols, III and John J. Blatzheim (June 11, 2010)

Transcript of Fairness Hearing (Aug. 17, 2010)

Final Approval Order (Aug. 17, 2010)

Notifications to federal and state officials
 

± 28 U.S.C. § 1715
(notifications to appropriate federal and state officials)

Class administrator web site

 

± Ready-Mixed Concrete Antitrust Litigation settlement page on the web.

Summary Notice of Class Action Settlement with Irving Materials, Inc. (IMI)

Notice of Class Action Settlement with Irving Materials, Inc. (IMI)

Generic Claim Form

Award of attorneys' fees

Order Granting Plaintiffs’ Motion for Award of Attorneys’ Fees, Reimbursement of Expenses, and Award of Class Representatives’ Incentive Fee from IMI Settlement (Mar. 30, 2010)

Memorandum in Support of Plaintiffs’ Motion for Award of Attorneys’ Fees, Reimbursement of Expenses, and Award of Class Representatives’ Incentive Fee from IMI Settlement (Mar. 2, 2010)

 

Memorandum and Order, In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., No. 1:05-md-01720-JG-JO, 991 F. Supp. 2d 437(E.D.N.Y. Jan. 10, 2014) (awarding $$544.8 million in attorneys' fees and $27 million for expenses) (see below for briefs)

 
Closure of case

CLOSED DISMISSED - Order of Administrative Closure. The Court directs the Clerk to administratively close this action without prejudice to the right of any party to move to reopen it consistent with the Courts exclusive, general, and continuing jurisdiction over the parties established pursuant to the applicable Preliminary Approval Orders. This Order of Administrative Closure is entered solely for the purpose of docket administration. It is not intended to and shall not effect the substantive rights, duties, or obligations of the parties (See Order). Signed by Judge Sarah Evans Barker on 9/14/2010.(MAC) (Entered: 09/15/2010)

 
Opt-outs

 

 
Opts-outs and MDL consolidation

Transfer Order, In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig. (Target Corp. and 7-Eleven, Inc.), No. MDL No. 1720 (J.P.M.L. Oct. 16, 2013)

 

The High Tech Employees "No Poach" Follow-On Class Action

Prior DOJ action

Complaint, United States v. Adobe Sys., Inc., Civ. A. No. 1:10-cv-01629 (D.D.C. filed Sept. 24, 2010) (news release)

Stipulation (Sept. 24, 2010)

[Proposed] Final Order (Sept. 24, 2010)

Competitive Impact Statement (Sept. 24, 2010)

Plaintiff United States' Explanation of Consent Decree Procedures (Sept. 24, 2010)

Final Judgment (Mar. 18, 2011)

± DOJ web page

Note; The State of California also brought an action against eBay alleging a non-solicitation agreement with Intuit. See Complaint, California v. eBay, Inc., Civ. No. 12-5874 (N.D. Cal. filed Nov. 16, 2014)

State complaints
 

Hariharan v. Adobe Sys. Inc., Case No. 11-CV-574066 (Alameda Super. Ct. filed May 4, 2011)

Marshall v. Adobe Sys. Inc., Case No. 11-CV-204052 (Santa Clara Super. Ct. filed June 28, 2011)

Devine v. Adobe Sys. Inc., Case No. 11-CV-204053 (Santa Clara Super. Ct. filed June 28, 2011)

Fichtner v. Adobe Sys. Inc., Case No. 11-CV-204187 (Santa Clara Super. Ct. filed June 30, 2011)

Stover v. Adobe Sys. Inc., Case No. 11-CV-205090 (Santa Clara Super. Ct. filed July 14, 2011)

Complaint

Consolidated Amended Complaint, In re High-Tech Employee Antitrust Litig., No. 11-CV-2509-LHK (N.D. Cal. filed Sept. 13, 2011)

For a more complete set of papers, see High Tech Employees in Unit 8

± N.D. Cal. web site

Class certification 1

Order Granting in Part, Denying in Part Motion for Class Certification (Apr. 5, 2013)

Plaintiffs’ Notice of Motion and Motion for Class Certification, and Memorandum of Law in Support (Oct. 1, 2012)

Expert Report of Edward E. Leamer, Ph.D. (Oct. 1, 2012)

Opposition to Plaintiffs' Motion for Class Certification (Nov. 12, 2012)

Expert Report of Professor Kevin M. Murphy (redacted version Nov. 14, 2012)

Defendants’ Notice of Motion and Motion to Strike the Report of Dr. Edward E. Leamer (Nov. 12, 2012)

Plaintiffs’ Consolidated Reply in Support of Motion for Class Certification and Opposition to Defendants’ Motion to Strike the Report of Dr. Edward E. Leamer (Dec. 10, 2012)

Reply Expert Report of Edward E. Leamer, Ph.D. (Dec. 10, 2012)

Class certification 2

Order Granting Plaintiffs’ Supplemental Motion for Class Certification (Oct. 24, 2013)

Plaintiffs’ Supplemental Motion and Brief in Support of Class Certification (May 10, 2013)

Defendants’ Opposition to Supplemental Class Certification Motion (June 21, 2013)

Supplemental Expert Report of Professor Kevin M. Murphy (June 21, 2013)

Plaintiffs’ Reply in Support of Supplemental Class Certification Motion (July 12, 2013)

Rebuttal Supplemental Expert Report of Edward E. Leamer, Ph.D. (July 12, 2013)

Interlocutory appeal under Rule 23(f)

Order, In re High-Tech Employee Antitrust Litig., No. 13-80223 (9th Cir. Jan. 14, 2014) (denying leave to appeal grant of class certification under Rule 23(f)

Petition for Leave to Appeal a Class Certification Order Pursuant to Federal Rule of Civil Procedure 23(f), In re High-Tech Employee Antitrust Litig., No. 13-80223 (9th Cir.(Nov. 7, 2013)

Docket Sheet No. 13-80223 (downloaded May 17, 2014)

Amici Curiae Brief of the Chamber of Commerce of the United States of America, the California Chamber of Commerce, and the National Association of Manufacturers in Support of Petition for Rule 23(f) Appeal of Class Certification Order (Nov. 7, 2014)

Plaintiffs’ Response to Petition for Leave to Appeal a Class Certification Order Pursuant to Federal Rule of Civil Procedure 23(f) (Nov. 18, 2013)

Settlement (Pixar, Lucasfilm, and Intuit)

Order Granting Plaintiffs’ Motion for Final Approval of Class Action Settlements with Pixar, Lucasfilm, and Intuit (May 16, 2014)

Order Granting Plaintiffs’ Motion for Attorneys’ Fees, Reimbursement of Expenses, and Service Awards (May 16, 2014)

Settlement Agreement - Intuit 
Settlement Agreement - Pixar and Lucasfilm, Ltd.

Letter notifying Judge Koh of settlement of technical class claims (July 12, 2013)

Order Regarding July 12, 2013 Notice of Settlement Letter (July 14, 2013)

Plaintiffs’ Brief Regarding the Impact of the Proposed Settlement on Plaintiffs’ Supplemental Motion for Class Certification (July 26, 2013)

Defendants Adobe, Apple, Google, Intel, and Intuit’s Joint Brief Regarding the Impact of the Proposed Pixar and Lucasfilm Settlements on the Supplemental Class Certification Motion (July 26, 2013)

Notice of Motion and Motion for Preliminary Approval of Class Action Settlements; Memorandum of Points and Authorities in Support Thereof (Sept. 21, 2013)

Notice of Motion and Motion for Final Approval of Class Action Settlements; Memorandum of Points and Authorities in Support Thereof (Apr. 10, 2014)

Proposed order (Apr. 10, 2014)

First Settlement (Adobe, Apple, Google, Intel)

Notice of Motion and Motion for Preliminary Approval of Class Action Settlement; Memorandum of Points and Authorities in Support Thereof (May 22, 2014)

Proposed order

Class Representative Michael Devine’s Memorandum in Opposition to Motion for Preliminary Approval of Class Action Settlement (June 5, 2014)

Order Denying Plaintiffs’ Motion for Preliminary Approval of Settlements with Adobe, Apple, Google, and Intel (Aug. 8, 2014) (denying motion for preliminary approval)

Letter notifying Judge Koh of settlement (Apr. 24, 2014)

Letter to Judge Koh from Michael Devine describing proposed settlement as grossly inadequate (May 11, 2014)

Communications to Judge Koh opposing settlement (docketed May 16, 2014)

 

Second Settlement (Adobe, Apple, Google, Intel)

Notice of Motion and Motion for Preliminary Approval of Class Action Settlement; Memorandum of Points and Authorities in Support Thereof (Jan. 15, 2015)

Settlement Agreement (Jan. 7, 2015)

Order Granting Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement with Defendants Adobe Systems Incorporated, Apple Inc., Google Inc., and Intel Corporation, Approving Form and Manner of Notice, and Scheduling Final Approval Hearing (Mar. 4, 2015)

Order Granting Plaintiffs’ Motion for Final Approval of Class Action Settlement with Defendants Adobe Systems Incorporated, Apple Inc., Google Inc., and Intel Corporation (Sept. 2, 2015)

Order Granting in Part and Denying in Part Motions for Attorney’s Fees, Reimbursement of Expenses, and Service Awards (Sept. 2, 2015)

Final Judgment and Dismissal (Sept. 2, 2015)

 
Settlement administration

Class Notice With Extended Dates (Pixar, Lucasfilm, and Intuit settlement)

Claim form

± High-Tech Employee Antitrust Litigation Settlement Administration Website

 
Derivative action against the Google board of directors
   
Commentary
 

± Kevin Caves & Hal Singer, Analyzing High-Tech Employee: The Dos and Don’ts of Proving (and Disproving) Classwide Antitrust Impact in Wage Suppression Cases, Antitrust Source, Feb. 2015, at 1.

± Mark Ames, Revealed: Apple and Google’s wage-fixing cartel involved dozens more companies, over one million employees, PandoDailycom (Mar. 22, 2014) (contains copies of company documents)

The Urethane Class Actions
(Polyether Polyol Cases)

MDL Panel

Transfer Order, In re Urethane Antitrust Litig., MDL No. 1616 (J.P.M.L. June 16, 2005)

 
Complaint

Consolidated Amended Complaint, In re Urethane Antitrust Litig. (Polyether Polyol), Civ. No. 04-1616-JWL (D. Kan. July 29, 2008)

Practice and Procedure Order No. 3 (Aug. 31, 2005) (dividing proceedings into “Polyester Polyol” cases and “Polyether Polyol” cases)

Docket sheet (downloaded Oct. 4, 2014)

Bayer settlement

 

Bayer Settlement Agreement (Jan. 4, 2006; amended Jan. 31, 2006)

Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Approval of Settlement with Bayer, Conditional Certification of a Settlement Class, and Authorization of Dissemination of Notice (Feb. 2, 2006) ($55.3 million, representing 1% of Bayer's sales)

Order Preliminarily Approving Settlement with Bayer, Certifying a Settlement Class, and Authorizing Dissemination of Notice (Apr. 6, 2006)

Order Approving Bayer Settlement and Dismissing with Prejudice the Bayer Defendants and other Releasees (Aug. 30, 2006)

Class certification

Memorandum and Order, In re Urethane Antitrust Litig., Civ. No. 04-1616-JWL (D. Kan. July 29, 2008) (certified a class of purchasers of polyether polyol urethane products and systems from defendants from January 1, 1999 to December 31, 2004)

Notice of Pending Class Action (Oct. 10, 2008)

Notice Informing You of a Modification of the Class Definition (July 26, 2013)

Post-certification settlements
 

± Settlement administrator's web site

—Lyondell
 

Lyondell Settlement Agreement (Mar. 1, 2011)

Class Plaintiffs’ Motion for Preliminary Approval of Settlement with Lyondell Chemical Company (June 2, 2011)

Class Plaintiffs’ Memorandum of Law in Support of their Motion for Preliminary Approval of Settlement with Lyondell Chemical Company (June 2, 2011) ($0, in bankruptcy)

Order Preliminarily Approving the Settlement with Lyondell and Authorizing Dissemination of Notice (June 14, 2011)

Order Approving Settlement and Dismissing with Prejudice Lyondell Chemical Company and Other Releasees (Sept. 27, 2011)

Class Action Notice

—Huntsman
 

Huntsman Settlement Agreement (May 27, 2011)

Class Plaintiffs' Motion for Preliminary Approval of Settlement with Huntsman International LLC (June 2, 2011)

Class Plaintiffs’ Memorandum of Law in Support of their Motion for Preliminary Approval of Settlement with Huntsman International LLC (June 2, 2011) ($33 million, representing 1.4% of sale)

Order Preliminarily Approving the Settlement with Huntsman and Authorizing Dissemination of Notice (June 14, 2011)

Order Approving Settlement and Dismissing with Prejudice Huntsman International LLC and Other Releasees (Sept. 27, 2011)

Class Action Notice

Order Approving Class Plaintiffs’ Plan of Allocation and Distribution for the Huntsman and BASF Settlement Funds (Dec. 13, 2011)

— BASF Defendants
 

BASF Settlement Agreement (Sept. 21, 2011)

Class Plaintiffs' Motion for Preliminary Approval of Settlement with BASF Corporation (Sept. 21, 2011)

Class Plaintiffs' Memorandum of Law in Support of their Motion for Preliminary Approval of Settlement with BASF Corporation (Sept. 21, 2011) ($51 million, representing 2.5% of sales)

Order Approving Settlement and Dismissing with Prejudice BASF Corporation and Other Releasees (Dec. 13, 2011)

Order Approving Class Plaintiffs’ Plan of Allocation and Distribution for the Huntsman and BASF Settlement Funds (Dec. 13, 2011)

Class Action Notice

Order Granting Class Plaintiffs’ Motion for an Order Authorizing the Retention of a Portion of the BASF/Huntsman Settlement Fund to Pay Appeal Bond Premiums, If Necessary, and for Reimbursement of Additional Litigation Fund Expenses (Oct. 1, 2013)

Notice Informing You of a Motion to Reserve Funds for Payment of Potential Litigation Expenses, and for an Award of Additional Litigation Expenses (Oct. 1, 2013)

—Attorneys' fees
 

Order Awarding Attorneys’ Fees and Reimbursement of Litigation Expenses to Plaintiffs’ Co-Lead Counsel (Dec. 13, 2011)

Motion to decertify class
 

The Dow Chemical Company's Motion to Decertify the Class (Jan. 22, 2013)

Memorandum in Support (Jan. 22, 2013) (filed under seal)

Memorandum in Opposition (Feb. 4, 2013) (filed under seal)

[Trial]

The Dow Chemical Company’s Supplemental Brief Supporting its Motion to Decertify the Class (Mar. 5, 2013)

Class Plaintiffs' Supplemental Brief in Opposition to The Dow Chemical Company's Motion to Decertify the Class (Mar. 22, 2013)

The Dow Chemical Company’s Reply Brief Supporting its Motion to Decertify the Class (Apr. 5, 2013)

Class Plaintiffs’ Sur-Reply Memorandum Addressing Comcast Corp. v. Behrend and Opposing The Dow Chemical Company’s Motions for Judgment as a Matter of Law, a New Trial, and Decertification of the Class (Apr. 19, 2013)

The Dow Chemical Company’s Response to Class Plaintiffs' Sur-Reply Memorandum Addressing Comcast Corp. v Behrend (Apr. 29, 2013)

See below for decision (joint with decision to deny Dow's JMOL motion)

Dow trial

Four week trial

Jury Instructions (Feb. 20, 2013)

Question from the Jury (Feb. 20, 2013)

Jury Verdict (Feb. 20, 2013) (finding $400,049,039 in total conspiratorial damages)

Judgment in a Civil Case (May 15, 2013) (awarding $1,200,147,117 in trebled damages)

The Dow Chemical Company’s Motions for Judgment on the Verdict and as a Matter of Law, or for a New Trial (Mar. 5, 2013)

Memorandum in Support of The Dow Chemical Company's Motions for Judgment on the Verdict and as a Matter of Law, or for a New Trial (Mar. 5, 2013)

Class Plaintiffs’ Opposition to the Dow Chemical Company’s Motion for Judgment as a Matter of Law (Mar. 22, 2013)

Corrected Reply Memorandum in Support of the Dow Chemical Company's Motions for Judgment on the Verdict and as a Matter of Law, or for a New Trial (Apr. 7, 2013)

Class Plaintiffs’ Sur-Reply Memorandum Addressing Comcast Corp. v. Behrend and Opposing The Dow Chemical Company’s Motions for Judgment as a Matter of Law, a New Trial, and Decertification of the Class (Apr. 19, 2013)

The Dow Chemical Company’s Response to Class Plaintiffs' Sur-Reply Memorandum Addressing Comcast Corp. v Behrend (Apr. 29, 2013)

Memorandum and Order (May 15, 2013)

 

Class Plaintiffs’ Motion to Amend the Judgment (May 23, 2013)

The Dow Chemical Company’s Motion to Amend the May 15, 2013 Judgment (June 6, 2013)

The Dow Chemical Company’s Response to Class Plaintiffs’ Motion to Amend the Judgment and Memorandum in Support of Dow’s Motion to Amend the May 15, 2013 Judgment (June 6, 2013)

Class Plaintiffs’ Reply Memorandum in Support of Class Plaintiffs’ Motion to Amend the Judgment and Opposing the Dow Chemical Company’s Motion to Amend the Judgment (June 20, 2013)

Memorandum and Order, In re Urethane Antitrust Litig., MDL No. 1616, Civ. No. 04-1616-JWL (D. Kan. July 26, 2013) (reducing judgment for tripled conspiratorial damages as found by jury by subtracting the prior settlement amounts).

Order–Plan of Allocation of Judgment Funds (July 26, 2013)

Amended Judgment in a Civil Case (July 26, 2013)

Notice of Appeal (Aug. 22, 2013)

The Dow Chemical Company’s Motion to Stay Execution on the Judgment Pending Appeal and Supporting Memorandum (May 23, 2013)

Unopposed Motion by The Dow Chemical Company for Entry of Stipulated Stay Order (May 29, 2013)

Stipulated Order Regarding The Dow Chemical Company’s Motion To Stay (Oct. 2, 2013)

Supersedeas Bond (Oct. 14, 2013) ($400 million)

 

Dow appeal

Opinion, In re Urethane Antitrust Litig., Civ. No.13-3215 (10 Cir. Sept. 29, 2014) (affirming judgment of the district court) (reported at 768 F.3d 1245)

Judgment (Sept. 29, 2014)

Docket sheet Civ. No. 13-3215 (downloaded Mar. 1, 2016)

Preliminary record (transmitted Aug. 26, 2013)

Docketing Statement (Sept. 4, 2013) (attachment)

Appellant’s Opening Brief (Dec. 6, 2013)

Brief for the Chamber of Commerce of the United States as Amicus Curiae in Support of Petitioners Urging Reversal (Dec. 13, 2013)

Class Plaintiffs’ Response Brief (Feb. 14, 2014)

Appellant’s Reply Brief (Mar. 7, 2014)

Argued May 14, 2014

___________________________________

Petition for Rehearing or Rehearing En Banc (Oct. 14, 2014)

Opposition to Rehearing and Rehearing En Banc (Oct. 24, 2014)

Order (Nov. 7, 2014) (denying petition for rehearing or rehearing en banc)

Mandate (Nov. 17, 2014)

Supreme Court
 

Docket sheet, Dow Chem. Co. v. Industrial Polymers, Inc., No. 14-1091 (U..S. docketed Mar. 10, 2015) (downloaded Mar. 1, 2015)

Petition for Writ of Certiorari

Petition for a Writ of Certiorari (Mar. 9, 2015)

Brief of Washington Legal Foundation As Amicus Curiae in Support of Petitioner (Apr. 8, 2015)

Brief of the Product Liability Advisory Council, Inc. As Amicus Curiae in Support of Petitioner (Apr. 8, 2015)

Brief for the Chamber of Commerce of the United States of America, The National Association of Manufacturers, The American Tort Reform Association, The National Council of Farmer Cooperatives, and The Business Roundtable As Amici Curiae in Support of Certiorari (Apr. 9, 2015)

Brief Amicus Curiae of Atlantic Legal Foundation in Support of Petitioner (Apr. 9, 2015)

Brief of DRI—The Voice of the Defense Bar As Amicus Curiae in Support of Petitioner (Apr. 9, 2015)

Brief of Professors Kevin M. Murphy, Jerry Hausman, Benjamin Klein, Edward A. Snyder, and Robert H. Topel As Amici Curiae in Support of Petitioner (Apr. 9, 2015)

Brief in Opposition (May 11, 2015)

Reply Brief (May 22, 2015)

Joint motion to Hold Petition in Abeyance (Feb. 25, 2016)

Dow settlement

Dow Chem. Co., Press Release, Dow Announces Settlement in Urethanes Class Action Litigation (Feb. 26, 2015)

Commentary

± Jef Feeley & Greg Stohr, Scalia's Death Prompts Dow to Settle Suits for $835 Million, BloombergBusiness.com (Feb. 26, 2016)

± Lyle Denniston, The Changing Court Brings an End to a Major Case, SCOTUS Blog.com (Feb. 26, 2016)

NYC Hop-On, Hop-Off Bus Tour Class Action Settlement

Complaint
 

First Amended Consolidated Class Action Complaint, In re NYC Bus Tour Antitrust Litig., No. 1:13-cv-00711-ALC-GWG (S.D.N.Y. filed Nov. 14, 2013) (original action filed Dec. 12, 2012)

Docket sheet (downloaded Mar. 8, 2017)

Order acceptiing case as related to United States v. Twin America, LLC, No. 1:12-cv-08989-ALC-GWG (S.D.N.Y. filed Dec. 11, 2012)

Settlement agreement
 

Settlement agreement

Preliminary approval

Plaintiffs’ Motion for Preliminary Approval of Settlement with Defendants (May 20, 2014)

Plaintiffs’ Memorandum in Support of Motion for Preliminary Approval of Settlement with Defendants (May 20, 2014)

Declaration of Mediator Antonio Piazza in Support of Preliminary Approval of Settlement (May 20, 2014)

Order Preliminarily Approving Class Action Settlement (June 6, 2014)

Declaration of Shannon R. Wheatman, Ph.D. in Support of Motion for Preliminary Approval of Class Action Settlement Re: Adequacy of Notice Program (May 20, 2014)

Exhibit 1. Wheatman CV

Exhibit 2. Proposed claim form

Exhibit 3. Proposed explanation

Exhibit 4.

Exhibit 5. Proposed mail notice

Exhibit 6.

Final approval

Order and Final Judgment Approving In re NYC Bus Tour Antitrust Litigation Class Action Settlement (Oct. 21, 2014)

Fairness Hearing transcript (Oct. 20, 2014)

Plaintiffs’ Motion for Final Approval of Settlement with Defendants (Auig 15, 2014)

Plaintiffs’ Memorandum of Law in Support of Motion fFor Final Approval of Settlement with Defendants (Aug. 15, 2014)

Declaration of Shannon R. Wheatman, Ph.D. in Support of Motion for Final Approval of Settlement with Defendants Re: Adequacy of Notice Program (Aug. 15, 2014)

Declaration of Daniel Coggeshall in Support of Motion for Final Approval of Settlement with Defendants Re: Mailing of the Notice and Receipt of Requests for Exclusion and Objections to Date (Aug. 15, 2014)

Attorneys' fees

Class Plaintiffs’ Motion for an Award of Attorneys’ Fees, Expenses and Service Award in Connection with the Settlement with Defendants Twin America, Llc, Coach USA, Inc., International Bus Services, Inc., Citysights LLC and City Sights Twin, LLC (Aug. 15, 2014)

Plaintiffs’ Memorandum of Law in Support of Fee and Expense Award (Aug. 15, 2014)

Order and Judgment Awarding Fees and Expenses (Oct. 21, 2014)

 

Distirbution

Order of Distribution (Sept. 21, 2015)

± Class Administrator web site

Dial Corp. v. News Corp.

In-Store Promotion Class Action

Opinion & Order, Dial Corp. v. News Corp., No. 13-cv-6802 (S.D.N.Y. Oct. 31, 2016) (final approval of settlement and award of attorneys' fees)

Fourth Amended Complaint, Dial Corp. v. News Corp., No. 13-cv-6802 (S.D.N.Y. filed Apr. 8, 2014) (orginal complaint filed Dec. 21, 2012) (transferred from Michigan Eastern on Sept. 26, 2013)

Docket sheet (downloaded Nov. 1, 2016)

Report and Recommendation (May 10, 2013)

Order Adopting the Magistrate Judge’s Report and Recommendation [29] Granting Defendants’ Motion to Transfer Venue [11], Dial Corp. v. News Corp., No. 12-15613 (E.D. Mich. Sept. 24, 2013)

Memorandum & Order, Dial Corp. v. News Corp., No. 13-cv-6802 (S.D.N.Y June 18, 2015) (certifying class) (reported at 314 F.R.D. 108)

Memorandum & Order, Dial Corp. v. News Corp., No. 13-cv-6802 (S.D.N.Y Feb. 9, 2016) (amending class certification order) (reported at 2016 WL 690895)

Memorandum & Order, Dial Corp. v. News Corp., No. 13-cv-6802 (S.D.N.Y Jan. 15, 2016) (denying motion for summary judgment) (reported at 165 F. Supp. 2d 25)

Order Granting Preliminary Approval of Class Action Settlement, Approving Form and Manner of Notice, and Setting Date for Hearing on Final Approval of Settlement (June 2, 2016)

Related Actions

Securities action (for failure to disclose participation in antitrust violations)
 

Amended Complaint, Chamberlain v. Ready Ice Holdings, Inc., No. 08-13451 (PDB) (E.D. Mich. filed Nov. 2, 2009)

Docket sheet (downloaded Aug. 25, 2012) (case terminated Apr. 18, 2012))

Motion to dismiss (Dec. 17, 2009) (index of exhibits)

Lead Plaintiffs’ Brief in Opposition to the Motion to Dismiss the Consolidated Class Action Complaint Filed by Defendants Reddy Ice, Brick and Janusek (Jan. 18, 2010)

Opinion and Order (Dec. 6, 2010) (denying motion to dismiss)

Order Granting Joint Motion for Expedited Transfer of Venue (Apr. 4, 2012) (granting Motion to Transfer Case to U.S. Bankruptcy Court, Northern District of Texas)

Derivative action (for failure to prevent participation in antitrust violations)
 

Complaint, Gilman v. Otellini, No. 09-cv-00867 (D. Del. filed Nov. 13, 2009) (derivative action against the members of the board of directors of Intel) (Exhibits A, B, and C) (civil cover sheet)

Docket sheet (downloaded Aug. 25, 2010) (case terminated July 22, 2010)

Order and Final Judgment (July 23, 2010) (approving settlement)

Other examples of derivative actions
 

Dow Board for the Urethane price-fixing case

Levine v. Liveris, No. 1:16-cv-11255-TLL-PTM (E.D. Mich. Oct. 19, 2016) (dismissing derivative suit complaint with claims of breach of fiduciary duty and
waste of corporate assets, unjust enrichment, breach of duty of loyalty, and breach of duty of candor).

AmEx Board for the Anti-Steering Case

Lankford v. Chenault, No. 650866/2015 (N.Y. Sup. Ct. filed Mar. 20, 2015), dismissed with prejudice, (Oct. 28, 2015) (for failing to show that it would have been futile to demand that American Express' board of directors take action in response to the alleged misconduct before plaintiff filed suit).

Google Board in connection with the High Tech Employee "No Poach" Case

Verified Shareholder Derivative Complaint, West Palm Beach Fire Pension Fund v. Page, No. 5:15-cv-01334 (N.D. Cal. filed Mar. 23, 2015) (against the board of directors of Google in connection with Google's alleged participation in the high tech employees "no poach" conspiracy)

Docket sheet (downloaded Apr. 13, 2015)

Microsoft Board in connection with violation of EU browser choice order

Verified Shareholder Derivative Complaint, Barovic v. Ballmer, Case 2:14-cv-00540-JCC (W.D. Wash. filed Apr. 11, 2014)

Docket sheet (downloaded Dec. 6, 2014)

Nominal Defendant Microsoft Corporation’s Motion to Dismiss Complaint (Aug. 11, 2014)

Individual Defendants' Motion to Dismiss (Aug. 11, 2014)

Plaintiffs’ Combined Opposition Brief to: (1) Nominal Defendant Microsoft Corporation’s Motion to Dismiss Complaint; and (2) Individual Defendants’ Motion to Dismiss (Sept. 30, 2014)

Nominal Defendant Microsoft Corporation’s Reply Memorandum in Support of Motion to Dismiss Complaint (Oct. 30, 2014)

Reply in Support of Individual Defendants’ Motion to Dismiss (Oct. 30, 2014)

Plaintiffs’ Motion for Preliminary Approval of Derivative Settlement (Oct. 29, 2015)

Order Preliminarily Approving Settlement and Providing for Notice (Nov. 24, 2015)

Commentary

± Gregg Keizer, Microsoft Settles Lawsuit against Ballmer, Gates, Others over Browser Ballot Blunder's $732M Fine, Computerworld.com, Dec. 6, 2015

Reference Materials

Federal Judicial Center

± Federal Judicial Center web site

± Manual for Complex Litigation (4th ed. 2004)

Especially Section 21 (class actions)

±Barbara J. Rothstein & Thomas E. Willging, Managing Class Action Litigation: A Pocket Guide for Judges (Fed. Jud. Ctr. 3d ed. 2010)

Commentary

± American Antitrust Institute, Class Action Issues Update (Mar. 2017)

± ABA Section of Antitrust Law, Antitrust Class Actions Handbook (2010)

± Spencer Weber Waller & Olivia Popal, The Fall and Rise of the Antitrust Class Action (August 10, 2015).

± Robert H. Klonoff, The Decline of Class Actions, 90 Wash. U. L. Rev. 729 (2013).

± Samuel Issacharoff, Assembling Class Actions (NYU School of Law, Public Law & Legal Theory Research Paper Series Working Paper No. 12-34, July 11, 2012).

Significant class action precedents
 
— Comcast Corp. v. Behrend (2012)

Comcast Corp. v. Behrend, No. 11-864 (U.S. Mar. 27, 2013) (reported at 133 S.Ct. 1426 , rev'g No. 10-2865 (3d Cir. Aug. 23, 2011) (reported as 655 F.3d 182)
Question: Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis. (± Scotusblog.com) (± ABA Preview)

See here for district court materials on the substantive merits

Eastern District of Pennsylvania--Certification proceeding

Docket sheet (downloaded May 6, 2016)

Plaintiffs’ Motion for Certification of the Philadelphia Class (Sept. 21, 2006)

Plaintiffs’ Supplemental Memorandum in Support of Motion for Class Certification (Sept. 21, 2006)

Updated Declaration of John C. Beyer, Ph.D., Regarding Class Certification (Sept. 21, 2006) (in support of class certification)

Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion for Class Certification (Nov. 9, 2006)

Expert Report of Dr. Stanley M. Besen in Opposition to Plaintiffs' Motion For Class Certification of the "Philadelphia Cluster" (Nov. 17, 2006) (filed under seal)

Plaintiffs’ Reply In Support Of Plaintiffs’ Motion For Class Certification (Dec. 4, 2006)

Declaration of John C. Beyer, Ph.D., in Response to Expert Report of Dr. Stanley M. Besen Regarding Class Certification (Dec. 4, 2006)

Deposition trasnscript of Stanley M. Besen (Nov. 16, 2006) (excerpts)

Memorandum Order (May 3, 2007) (certifying class for Philadelphia cluster) (reported at 245 F.R.D. 195)

Memorandum Order (Oct. 10, 2007) (certifying class for Chicago cluster) (reported at 2007 WL 2972601)

Expert Report of Dr. Stanley M. Besen in Opposition to Plaintiffs' Motion For Class Certification of the "Chicago Cluster" (July 18, 2007) (filed under seal)

Declaration of John C. Beyer, Ph.D., in Response to Expert Report of Dr. Stanley M. Besen in Opposition to Plaintiffs’ Motion for Certification of the Chicago Class (Aug. 8, 2007)

Defendants' Motion to De-Certify Class (Feb. 20, 2009)

Plaintiffs’ Memorandum in Opposition to Defendants’ Motion To Decertify Classes (Mar. 9, 2009)

Reply Memorandum in Support of Defendants’ Motion to De-Certify Classes (Mar. 16, 2009)

Order (May 30, 2009) (granting in part and denying in part motion to decertify classes)

Plaintiffs’ Amended Motion for Certification of the Philadelphia Class (Apr. 15, 2009)

Memorandum in Support of Plaintiffs’ Amended Motion for Certification of the Philadelphia Class (Apr. 15, 2009) (filed under seal)

Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Amended Motion for Certification of the Philadelphia Class (May 6, 2009) (filed under seal)

Note; There were multiple expert reports filed in connection wtih the motion as well as multiple motions to strike portions fo the expert testimony. All of this material was filed under seal. No redacted public versions were docketed. Judge Padova also conducted a four-day evidentiary hearing on class certification.

Defendants’Motion for Judgment on Partial Findings Pursuant to Federal Rule of Civil Procedure 52(c) (Oct. 19, 2009)

Defendants’ Memorandum of Law in Support of their Motion for Judgment on Partial Findings Pursuant to Federal Rule of Civil Procedure 52(c) (Oct. 19, 2009)

Memorandum in Opposition to Defendants' Motion for Judgment on Partial Findings Pursuant to Federal Rule of Civil Procedure 52(c) (Oct. 22, 2009)

Defendants’ Reply Memorandum of Law in Support of their Motion for Judgment on Partial Findings Pursuant to Federal Rule of Civil Procedure 52(c) (Oct. 25, 2009)

Memorandum, Behrend v. Comcast Corp., No. 2:03-cv-06604-JP (E,D, Pa. Jan. 7, 2010)

Order (Jan. 7, 2010) (granting Plaintiffs’ Amended Motion for Certification of the Philadelphia Class, certifying class, appointing class counsel, and denying Defendants’ Motion for Partial Findings Pursuant to Fed. R. Civ. P. 52(c))

Amended Order (Jan. 13, 2010) (vacating order of January 7, 2010, and substituting new order)

 

Third Circuit (Rule 23(f) appeal of grant of class recertification)

Order, Behrend v. Comcast Corp., No. 10-8009 (3d Cir. June 9, 2010) (granting leave for Rule 23(f) appeal of January 7, 2010, class certification order) (docket sheet)

Case transferred to general docket at No. 10-2865. (SMW) (June 25, 2010) (docket sheet)

Brief of Defendants-Appellants (Aug. 30, 2010)

Brief of Plaintiffs-Appellees (Sept. 29, 2010)

Reply Brief of Defendants-Appellants (Oct. 18, 2010)

± Oral argument (Jan. 11, 2011)

Opinion, Behrend v. Comcast Corp., No. 10-2865 (3d Cir. Aug. 23, 2011) (reported as 655 F.3d 182)

 

Supreme Court—Certiorari

± Docket sheet

Petition for a Writ of Certiorari (Jan. 11, 2012)
Brief in Opposition to Petition for a Writ of Certiorari (Apr. 9, 2012)
Reply Brief for Petitioners (Apr. 24, 2012)

Order Granting Petition for a Writ of Certiorari, Comcast Corp. v. Behrend, No. 11-864 (U.S. June 25, 2012)

Supreme Court—Merits

Brief of petitioner Comcast Corporation (Aug. 17, 2012)

Brief of Intel Corporation as Amicus Curiae in Support of Petitioners (Aug. 24, 2012)

Brief Amicus Curiae of the Equal Employment Advisory Council in Support of Petitioners (Aug. 24, 2012)

Brief for the Chamber of Commerce of the United States of America, Business Roundtable, and the Securities Industry and Financial Markets Association as Amici Curiae Supporting Petitioners (Aug. 24, 2012)

Brief of DRI—The Voice of the Defense Bar as Amicus Curiae in Support of Petitioners (Aug. 24, 2012)

Brief of the Washington Legal Foundation, Allied Educational Foundation, and International Association of Defense Counsel as Amicus Curiae in Support of Petitioners (Aug. 24, 2012)

Brief of Retail Litigation Center, Inc. as Amicus Curiae in Support of Petitioners (Aug. 24, 2012)

Brief of the Cato Institute as Amicus Curiae in Support of the Petitioners (Aug. 24, 2012)

Brief Amici Curiae of Economists in Support of Neither Party Filed (Aug. 24, 2012).

± Brief of Respondents (Sept. 25, 2012)

Brief of the American Antitrust Institute and the American Independent Business Alliance as Amici Curiae in Support of Respondents (Oct. 2, 2012)

± Brief of the American Association for Justice, Public Justice, P.C., and AARP as Amici Curiae in Support of Respondents (Oct. 2, 2012)

± Reply Brief of Petitioners (Oct. 24, 2012)

Transcript of oral argument (Nov. 5, 2012) (± Oyez site for audio)

Opinion (Mar. 27, 2013)

 

On remand

Docket sheet (downloaded May 6, 2016)

Plaintiffs’ Motion for Certification of Revised Philadelphia Class (Aug. 19, 2013) (submitting a Class Recertification Report of Dr. James T. McClave dated August 19, 2013 and a Second Supplemental Expert Report of Michael A. Williams, Ph.D. dated August 19, 2013)

Memorandum in Support of Motion for Certification of Revised Philadelphia Class, Re-Certification Report (Aug. 19, 2013) (filed under seal)

Memorandum of Law in Support of Defendants’ Motion to Strike (Sept. 19, 2013)

Class Plaintiffs’ Reply Memorandum in Support of Plaintiffs’ Motion for Certification of Revised Philadelphia Class and Opposition to Defendants’ Motion to Strike (Oct. 8, 2013)

Glaberson v. Comcast Corp., Civ. A. No. No. 03–6604 (E.D. Pa. Nov. 11, 2013) (denying Comcast's motion to strike plaintiff's motion to recertify the Philadelphia class and directing defendants to file a substantive response to plaintiffs' motion for certification of a revised Philadelphia class no later than December 6, 2013--later delayed to January 15, 2014.)

Defendants' Memorandum of Law in Opposition to Motion to Certify Class (Jan. 15, 2014) (filed under seal)

NB: On August 20, 2013, the district approved Caroline Behrend's withdrawal as named plaintiff and substituted Stanford Glaberson.

Class Plaintiffs’ Unopposed Motion for Stay (Feb. 19, 2014) (in order to pursue settlement)

Fourth Amended Complaint, Glaberson v. Comcast Corp., Civ. A. No. No. 03–6604 (E.D. Pa. filed Apr. 16, 2014)

 

Plaintiff’s Motion for Certification of a Settlement Class and Preliminary Approval of Class Action Settlement (Oct. 28, 2014)

Plaintiff’s Memorandum in Support of Motion for Certification of a Settlement Class and Preliminary Approval of Class Action Settlement (Oct. 28, 2014)

Class Action Settlement Agreement (Oct. 28, 2014)

Comcast’s Response to Plaintiffs’ Motion for Certification of a Settlement Class and Preliminary Approval of Class Action Settlement (Oct. 28, 2014)

Order-Memorandum (Dec. 12, 2014) (granting motion for preliminary approval) (reported at 2014 WL 7008539)

± Class Administrator's web site

Order (Jan. 14, 2015) (denying plaintiffs' motion for certification of a revised Philadelphia class as moot)

Plaintiff’s Motion for an Award of Attorneys’ Fees, Reimbursement of Expenses, and Payment of Service Award to Class Representative (Jan. 12, 2015)

Memorandum in Support of Plaintiff’s Motion for an Award of Attorneys’ Fees, Reimbursement of Expenses, and Payment of Service Award to Class Representative (Jan. 12, 2015)

Amended Class Action Settlement Agreement (Sept. 2, 2015)

Plaintiff’s Supplemental Memorandum in Support of Motion for Final Approval of Class Action Settlement and Responses to Objections (Sept. 3, 2015) (explaining modifications to settlement agreement)

Memorandum (Sept. 22, 2015) (granting motions for final approval of class action settlement and for award of attorneys' fees)

Final Judgment (Sept. 22, 2015)


— Wal-Mart Stores, Inc. v. Dukes (2011)

Wal-Mart Stores, Inc. v. Dukes, 10-277 (U.S. June 20, 2011) (reported at 131 S. Ct. 2541) (± Oyez) , rev'g Nos. 04-16688 & 04-16720 (9th Cir. Apr. 26, 2010) (en banc) (reported as 603 F.3d 571)

± Supreme Court oral argument transcript (Mar. 29, 2011) (± Oyez site for audio)
± SCOTUSblog—includes party and amicus briefs
± Oyez for opinion announcement (June 20, 2011)

—Other significant precedents

Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) ("limited fund" class actions) (± Oyez)

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) (settlement class actions) (± Oyez)

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) (choice of law) (± Oyez)

General Tel. Co. of Southwest v. Falcon, 457 U.S. 147 (1982) (typicality) (± Oyez)

Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) (limits on communication with unnamed members of class) (± Oyez)

Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326 (1980)

Eisen v. Carlisle and Jacquelin, 417 U.S. 156 (1974) (± Oyez) (notice to class members)

American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974)

Hansberry v. Lee, 311 U.S. 32 (1940)

± Szabo v. Bridgeport Machs., Inc., 249 F.3d 672 (7th Cir. 2001) (holding preliminary merits inquiries permissible in class certification proceedings to the extent necessary to determine whether Rule 23's requirements are satisfied); accord In re IPO Secs. Litig., 471 F.3d 24 (2d Cir. 2006); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008)

Significant recent antitrust class actions

Post-Comcast

In re Processed Egg Prods. Antitrust Litig., No. 08-md-2002 (E.D. Pa. Nov. 10, 2015) (granting class certification to a subclass of direct purchasers of shell eggs but denying class certification to a subclass of direct purchasers of egg products)

In re Processed Egg Prods. Antitrust Litig., No. 08-md-2002 (E.D. Pa. Sept. 18, 2015) (denying class action status to indirect purchaser class)

In re Rail Freight Fuel Surcharge Antitrust Litig., No. 12-7085 (D.C. Cir. Aug. 9, 2013) (reported at 725 F.3d 244) (see below for materials)

In re Urethane Antitrust Litig., No. 2:04-md-01616-JWL (D. Kan. May 15, 2013), aff'd, No.13-3215 (10th Cir. Sept. 29, 2014)

Pre-Comcast

Messner v. Northshore Univ. HealthSystem, No. 10-2514 (7th Cir. 2012) (reported as 669 F.3d 802) (± oral argument) (vacating the denial of class certification) (see the case study)

Sullivan v. DB Invs., Inc., Nos. 08–2784 et al. (3d Cir. Dec. 20, 2011) (en banc) (reported as 667 F.3d 273)

In re New Motor Vehicles Canadian Export Antitrust Litig., No. 07-2257 (1st Cir. Mar. 28, 2008) (reported as 522 F.3d 6), vacating Supplemental Order on Class Certification of State Damage Classes, MDL Docket No. 1532 (D. Me. Mar. 21, 2007) (reported as 241 F.R.D. 77)

In re New Motor Vehicles Canadian Export Antitrust Litig., MDL Docket No. 1532 (D. Me. July 2, 2009) (on remand) (reported as 632 F. Supp. 2d 42)

Compare with Kohen v. PIMCO, 571 F.3d 672 (7th Cir. 2009)

± In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008), rev'g and remanding 240 F.R.D. 163 (E.D. Pa. 2007)

± Richard A. Ripley & Mark J. Glueck, In re Hydrogen Peroxide Antitrust Litigation Bleaches Clean the Class Certification Standard, The Antitrust Source, Feb. 2009.

In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651 (7th Cir. 2002)

Other recent antitrust class action decisions

± In re Insurance Brokerage Antitrust Litig., 579 F.3d 241 (3d Cir. 2009)

Rodriguez v. West Publishing Corp., Nos. 07-56643, 07-56833 (9th Cir. Apr. 23, 2009) (reported as 563 F.3d 948) (± settlement web site)

In re TFT-LCD (Flat Panel) Antitrust Litigation, No. M 07-1827 SI (N.D. Cal. Mar. 28, 2010)

Order Granting in Part and Denying in Part Direct Purchaser Plaintiffs’ Motion for Class Certification; Granting Defendants’ Motion to Strike Untimely Declarations (Mar. 28, 2010)

Order Granting Indirect Purchaser Plaintiffs’ Motion for Class Certification; Denying Defendants’ Motion to Strike Modified Class Definitions; Granting Motions to Strike Untimely Declarations (Mar. 28, 2010)

± In re Currency Conversion Fee Antitrust Litig., MDL No. M 21-952010, WL 305448 (S.D.N.Y. Jan 22, 2010)

Behrend v. Comcast Corp., Civ. A. No. 03-6604 (E.D. Pa. Jan. 7, 2010) (reported as 264 F.R.D. 150) (on motion for reconsideration, applying ± Hydrogen Peroxide in a detail decision resolving expert disputes and certifying class) (original decision (May 2, 2007))

Reed v. Advocate Health Care, Civ. A. No. 06 C 3337 (N.D. Ill. Sept. 28, 2009)

Somers v. Apple, Inc., Civ. A. No. No. C 07-06507 JW (N.D. Cal. filed July 17, 2009) (reported as 258 F.R.D. 354) (docket sheet (downloaded Feb. 26, 2009))

In re Static Random Access Memory (SRAM) Antitrust Litig., No. C 07-01819 CW, 2009 WL 4263524 (N.D. Cal. Nov. 25, 2009) (docket sheet (downloaded Feb. 26, 2009))

McDonough v. Toys "R" Us, Inc., Civ. A. No. 06-0242 (E.D. Pa. July 15, 2009) (reported as 638 F. Supp. 2d 461)

In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., Civ. A. No. 3:03md1542 (SRU) (D. Conn. Feb. 13, 2009) (reported as 256 F.R.D. 82)

In re Fresh Del Monte Pineapples Antitrust Litig., No. 1:04-md-1628 (RMB), 2008 WL 5661873 (S.D.N.Y. Feb. 20, 2008) (granting motion to certify direct purchaser class on Sherman Act claims and denying motion to certify indirect purchaser class) (docket sheet (downloaded Mar. 27, 2010)) (see below for case materials)

± In re Scrap Metal Antitrust Litig., No. 06-4511 (6th Cir. May 15, 2008) (reported as 527 F.3d 517)

Antitrust cases denying class certification (examples)

In re Wholesale Grocery Prods. Antitrust Litig., No. 09–MD–2090 ADM/AJB (D. Minn. July 25, 2012) (unpublished) (reported at 2012 WL 3031085)

Allen v. Dairy Farmers of Am., Inc., No. 5:09-cv-230 (D. Vt. Dec. 9, 2011) (denying class certification without prejudice) (reported at 2011 WL 6148678)

Allied Orthopedic Appliances, Inc. v. Tyco Healthcare Group L.P., Nos. 05-06419 MRP (AJWx), (C.D. Cal. Dec. 21, 2007) (reported as 247 F.R.D. 156) (docket sheet (downloaded Feb. 26, 2009))

± Heerwagen v. Clear Channel Commc'ns, 435 F.3d 219 (2d Cir. 2006)

± Blades v. Monsanto Co., 400 F.3d 562 (8th Cir. 2005)

Bradburn Parent/Teacher Store, Inc. v. 3M, No. Civ. A. 02-7676, 2004 WL 414047 (E.D. Pa. Mar. 1, 2004)

Bradburn Parent/Teacher Store, Inc. v. 3M, No. Civ. A. 02-7676, 2004 WL 414047 (E.D. Pa. Aug. 18, 2004) (certifying modified class)

± Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181 (11th Cir. 2003)

In re Microsoft Corp. Antitrust Litig., 218 F.R.D. 449 (D. Md. 2003)

Antitrust cases employing permissive certification standards (examples)

± In re Linerboard Antitrust Litig., 305 F.3d 145 (3d Cir. 2002)

± In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001), ± aff'g 192 F.R.D. 68 (E.D.N.Y.2000)

± Bogosian v. Gulf Oil Co., 561 F.2d 434 (3d Cir. 1977)

Rule 26(f) interlocutory appeals

Gelder v. Coxcom Inc., No. 12–706. (10th Cir. Aug. 8, 2012) (reported as 696 F.3d 966)

Post-verdict appeals

In re Urethane Antitrust Litig., No. 13-3215 (10th Cir. docketed Aug. 26, 2013)

Docket sheet No. 13-3215 (downloaded May 7, 2014)

Appellant’s Opening Brief (Dec. 6, 2013)

Brief for the Chamber of Commerce of the United States as Amicus Curiae in Support of Petitioners Urging Reversal (Dec. 13, 2013)

Class Plaintiffs’ Response Brief (Feb. 14, 2014)

Appellant’s Reply Brief (Mar. 7, 2014)

Argued May 14, 2014

Opinion, In re Urethane Antitrust Litig., No.13-3215 (10 Cir. Sept. 29, 2014) (affirming judgment of the district court)

Judgment (Sept. 29, 2014)

See here for materials in the district court proceeding

Indirect purchasers

Granting certification

Order Granting Indirect Purchaser Plaintiffs’ Motion For Class Certification; Denying Defendants’ Motion to Strike Modified Class Definitions; Granting Motions to Strike Untimely Declarations, In re TFT-LCD (Flat Panel) Antitrust Litig., No. M 07-1827 SI (N.D. Cal. Mar. 28, 2010)

Indirect-Purchaser Plaintiffs’ Third Consolidated Amended Complaint (Apr. 29, 2011)

Notice of Motion and Motion of Indirect-Purchaser Plaintiffs for Class Certification (June 2, 2009)

Memorandum of Points and Authorities in Support of Indirect-Purchaser Plaintiffs’ Motion for Class Certification (June 2, 2009)

Defendants' Opposition to Indirect Purchaser Plaintiffs' Motion for Class Certification (Aug. 8, 2009)

Reply Brief in support of Indirect-Purchaser Plaintiffs' Motion for Class Certification (Sept. 17, 2009) (filed under seal)

Defendants’ Joint Notice of Motion and Motion to Strike Proposed Modifications to Class Definitions Contained in Indirect Purchaser Plaintiffs’ Reply Brief on Class Certification and Declarations Filed with Indirect Purchaser Plaintiffs’ Reply Brief on Class Certification (Oct. 15, 2009)

Indirect-Purchaser Plaintiffs’ Opposition to Defendants’ Joint Motion to Strike Proposed Modifications to Class Definitions and Declarations Filed with Indirect-Purchaser Plaintiffs’ Reply Brief on Class Certification (Oct. 29, 2009)

Reply in Support of Defendants’ Joint Motion to Strike Proposed Modifications to Class Definitions Contained in Indirect Purchaser Plaintiffs’ Reply Brief on Class Certification and Declarations Filed with Indirect Purchaser Plaintiffs’ Reply Brief on Class Certification (Nov. 5, 2009)

Denying certification

Memorandum Opinion, In re Class 8 Transmission Indirect Purchaser Antitrust Litig., No. 1:11-cv-00009-SLR (D. Del. Oct. 21, 2015) (denying motion for class certification, denying motion to substitute class representatives as moot, and dismissing case) (reported at 140 F. Supp. 3d 339) (see here for case materials)

In re Intel Corp.Microprocessor Antitrust Litig., No. CV 05-485-LPS, 2014 WL 6601941 (D. Del. Aug. 6, 2014)

 

Dismissing complaint

Opinion, In re Ductile Iron Pipe Fittings (“DIPF”) Indirect Purchaser Antitrust Litig., No. Civ. No. 12-169 (D.N.J. Mar. 18, 2013)

Amended Class Action Complaint, In re Ductile Iron Pipe Fittings ("DIPF") Indirect Purchaser Antitrust Litig., No. Civ. No. 12-169 (D.N.J. filed July 11, 2013)

Docket sheet (downloaded Feb. 17, 2014)

Defendant Star Pipe Products, Ltd.'s Notice of Motion to Dismiss Counts 3, 4, 5, 6 and 10 of the Amended Class Action Complaint of Indirect Plaintiffs (Sept. 26, 2012)

Memorandum of Law in Support of Defendant Star Pipe Products, Ltd.'s Motion to Dismiss As to Counts 3, 4, 5, 6 and 10 of the Amended Class Action Complaint (Sept. 26, 2012)

Consolidated Notice of Motion of Defendants Mcwane, Inc. and Sigma Corporation to Dismiss the Amended Class Action Complaint (Sept. 26, 2012)

Consolidated Memorandum of Defendants Mcwane, Inc. and Sigma Corporation in Support of their Motion to Dismiss the Amended Class Action Complaint (Sept. 26, 2012)

Indirect Purchaser Plaintiffs' Opposition to Defendants McWane Inc., Sigma Corporation, and Star Pipe Product Ltd.'s Motions to Dismiss Plaintiffs' Amended Class Action Complaint (Nov. 11, 2012)

Defendant Star Pipe Products, Ltd.'s Reply in Support of its Motion to Dismiss as to Counts 3, 4, 5, 6 and 10 of the Amended Class Action Complaint (Dec. 4, 2012)

Reply Memorandum of Defendants McWane, Inc. and Sigma Corporation in Further Support of their Motion to Dismiss the Amended Class Action Complaint (Dec. 4, 2012)

Opinion (Mar. 18, 2013)

Order (Mar. 18, 2013) (dismissing complaint)

Second Amended Class Action Complaint (May 3, 2013)

Defendant Star Pipe Products, Ltd.'s Notice of Motion to Dismiss with Prejudice Counts 3, 4, and 8 of the Second Amended Complaint of Indirect Purchaser Plaintiffs (June 17, 2013)

Memorandum of Law in Support of Defendant Star Pipe Products, Ltd.'s Motion to Dismiss Counts 3, 4, and 8 of the Second Amended Complaint (June 17, 2013)

Consolidated Notice of Motion of Defendants McWane, Inc. and Sigma Corporation to Dismiss the Second Amended Class Action Complaint (June 17, 2013)

Consolidated Memorandum of Defendants McWane, Inc. and Sigma Corporation in Support of their Motion to Dismiss the Second Amended Class Action Complaint (June 17, 2013)

State of Indiana’s Response in Opposition to Defendants’ Motions to Dismiss (July 22, 2013)

Indirect Purchaser Plaintiffs’ Opposition to Defendants’ Motions to Dismiss Plaintiffs’ Second Amended Class Action Complaint (July 22, 2013)

Reply Memorandum of Defendants McWane, Inc. and Sigma Corporation in Support of their Motion to Dismiss the Second Amended Class Action Complaint (Aug. 14, 2013)

Defendant Star Pipe Products, Ltd.' s Reply in Support of Motion to Dismiss Counts 3, 4, and 8 of the Second Amended Complaint (Aug. 14, 2013)

Opinion (Oct. 2, 2013) (reported at 2013 WL 5503308)

Order (Oct. 2, 2013)

Defendant Star Pipe Products, Ltd.'s Answer to Second Amended Class Action Complaint of Indirect Purchaser Plaintiffs (Oct. 22, 2013)
Defendant McWane, Inc.’s Answer to Plaintiffs’ Second Amended Class Action Complaint (Oct. 30, 2013)
Sigma Corporation's Answer and Affirmative Defenses to Plaintiffs' Second Amended Class Action Complaint (Oct. 30, 2013)

Request of Plaintiff State of Indiana, by Attorney General Greg Zoeller, for Entry of Default of Defendants McWane, Inc. and Sigma Corp. Pursuant to Fed. R. Civ. P. 55(a) (Oct. 31, 2013)

Letter from Roberto A. Rivera-Soto (for Sigma) re Response to the State of Indiana Request for Default Judgment (Nov. 1, 2013) (also responding for McWane)

Letter from Bryan L. Clobes (for the Indiana Attorney General) in reply (Nov. 4, 2013)

Sigma Corporation's Answer and Affirmative Defenses to Plaintiff's Amended Complaint (Nov. 23, 2013) (responding to Indiana complaint)
Defendant Mcwane, Inc.’s Answer to State of Indiana’s Amended Complaint (Nov. 27, 2013)

Opt-outs
 
—Rejoining a settlement class

Allowed

In re Static Random Access Memory (SRAM) Antitrust Litig., No. 07-md-1819 CW (N.D. Cal. Mar. 25, 2013) (reported at . 2013 WL 1222690)

Not allowed

Order Denying Motion to Withdraw Requests for Exclusion from the Settlement Classes and to Join the Class Settlements, In re Cathode Ray Tube (CRT) Antitrust Litig. (Direct Purchasers), MDL No. 1917, No. C-07-5944-SC (N.D. Ill. Apr. 1, 2014)

Opt-In Plaintiffs’ Notice of Motion and Motion to Withdraw Requests for Exclusion from the Settlement Classes and to Join the Class Settlements (Feb. 20, 2014)

Direct Purchaser Plaintiffs’ Opposition to Opt-In Plaintiffs’ Motion to Withdraw Requests for Exclusion from the Settlement Classes and to Join the Class Settlements (Mar. 6, 2014)

Reply Memorandum of Points and Authorities in Support of Opt-In Plaintiffs’ Motion to Withdraw Requests for Exclusion from the Settlement Classes and to Join the Class Settlements (Mar. 13, 2014)

State parens patriae federal actions

± 15 U.S.C. § 15c (creating a state parens patriae cause of action in federal court)
± 15 U.S.C. § 15d (measurement of damages in state parens patriae actions)
± 15 U.S.C. § 15e (distribution of damages in state parens patriae actions)

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972) (recognizing state parens patriae cause of action for injunctive relief under the Clayton Act in federal court) (± Oyez)

California v. Frito-Lay, 474 F. 2d 774 (9th Cir. 1973) (rejecting state parens patriae cause of action for damages relief under the Clayton Act in federal court) (abrogated by ± 15 U.S.C. § 15c)

Louisiana ex rel. Caldwell v. Allstate Ins. Co., 536 F.3d 418 (5th Cir. 2008)

State parens patriae state actions

See, e.g., ± Cal. Bus. & Prof. Code §16760 (creating a state parens patriae cause of action in state court)

Mississippi v. AU Optronics Corp., No. 12-60704 (5th Cir. Nov 21, 2012) (removing Mississippi's parens patrie state antitrust action alleging price fixing in LCD panels to federal court because it qualifies as a mass action under the Class Action Fairness Act) (reported as 701 F.3d 796)

Supreme Court

± Supreme Court docket page (No. 12-1036) (± Oyez page) (± SCOTUSblog) (± ABA Supreme Court briefs)

Question presented: Whether a state's parens patriae action is removable as a "mass action" under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the state attorney general possesses statutory and common-law authority to assert all claims in the complaint.

Writ of certiorari granted (May 28, 2013)

Brief for Petitioner (July 22, 2013)
Brief for Respondents (Sept. 3, 2013)
Reply Brief for Petitioner (Oct. 3, 2013)

± Oral argument (Nov. 6, 2013) (transcript)

Opinion, Mississippi ex rel. Hood v. AU Optronics Corp., No. 12-1036 (U.S. Jan. 14, 2014) (reversing and remanding, holding that since Mississippi is the only named plaintiff the suit does not constitute a mass action under CAFA.)

Economics of class actions

± Paul A. Johnson, The Economics of Antitrust Class Certification (May 2009)

Economic evidence in class actions

Antitrust cases:

Order Granting Motions for Class Certification, In re Korean Ramen Antitrust Litig., No. 13-CV-04115-WHO (N.D. Cal. Jan. 19, 2017) (rejecting challenge to plaintiffs' experts and granting motion for class certification) (reported at 2017 WL 235052)

In re Blood Reagents Antitrust Litig., No. 12-4067 (3d Cir. Apr. 8, 2015) (vacating class certification and remanding for district court to assess plaintiffs' expert testimony under Daubert), recertified, No. 2:09-md-02081-JD (E. D. Pa. Oct. 19, 2015)

Allen v. Dairy Farmers of Am., Inc., No. 5:09-cv-230 (D. Vt. Dec. 9, 2011) (denying class certification without prejudice) (reported at 2011 WL 6148678)

In re Online DVD Rental Antitrust Litig., No. M 09-2029 PJH (N.D. Cal. Dec. 23, 2010) (reported at 2010 WL 5396064)

NB: In ±Fosmire v. Progressive Max Ins. Co., 2011 WL 4801915 (W.D. Wash. 2011), the district court noted its "doubts that the lax standard set forth in In re Online DVD Rental [regarding expert evidence] remains viable following the Supreme Court's decision in Dukes and its dicta indicating that some form of Daubert analysis is applicable at the class certification stage." Id. at *5 n. 10.

Somers v. Apple, Inc., Civ. A. No. No. C 07-06507 JW (N.D. Cal. filed July 17, 2009) (reported as 258 F.R.D. 354) (rejecting plaintiff expert's testimony on impact and damages as unreliable and denying class certification to indirect purchaser class) (see below for case materials)

In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., Civ. A. No. 3:03md1542 (SRU) (D. Conn. Feb. 13, 2009) (reported as 256 F.R.D. 82)

Natchitoches Parish Hosp. v. Tyco Int'l, Civ. A. No. 05-12024 (PBS) (D. Mass. ) (see below for case materials)

Significant non-antitrust cases:

In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604 (8th Cir. 2011)

Fosmire v. Progressive Max Ins. Co., 2011 WL 4801915, at *3 (W.D. Wash. 2011)

Commentary:

± Michelle M. Burtis & Darwin V. Neher, Correlation And Regression Analysis in Antitrust Class Certification, 77 Antitrust L.J. 495 (2011)

± Paul A. Johnson, The Economics of Common Impact in Antitrust Class Certification, 77 Antitrust L.J. 533 (2011)

± John H. Johnson & Gregory K. Leonard, Rigorous Analysis of Class Certification Comes of Age, 77 Antitrust L.J. 569 (2011)

± Donald Hawthorne & Margaret Sanderson, Rigorous Analysis of Economic Evidence on Class Certification in Antitrust Cases, Antitrust, Fall 2009, at 55

± Paul E. Godek & Janusz A. Ordover, Economic Analysis in Antitrust Class Certification: Hydrogen Peroxide, Antitrust, Fall 2009, at 62

± David S., Evans, The New Consensus on Class Certification: What it Means for the Use of Economic and Statistical Evidence in Meeting the Requirements of Rule 23 (Jan. 2009)

± David A. Gulley, Recent Trends in Rule 23 Class Certification Expert Analysis (June 2009)

± John H. Johnson & Gregory K. Leonard, In the Eye of The Beholder: Price Structure as Junk Science in Antitrust Class Certification Proceedings, Antitrust, Summer 2008, at 108

± John H. Johnson & Gregory K. Leonard, Economics and the Rigorous Analysis of Class Certification in Antitrust Cases, 3 J. Competition L. & Econ. 341 (2007)

± James F. Nieberding & Robin, Price Dispersion and Class Certification in Antitrust Cases: An Economic Analysis, 14 J. Leg. Econ. 61 (2007)

± Best Practices in Using Economics for Class Certification Motions under Rule 23 of the Federal Rules of Civil Procedure, in The Sedona Conference Commentary on the Role of Economics in Antitrust Law ch. III (Feb. 2006)

Antitrust class action commentary

± Hal J. Singer & Robert B. Kulick, Class Certification in Antitrust Cases: An Economic Framework (Mar. 1, 2010), final version at __ Geo. Mason L. Rev. ___ (____).

± William Kolasky & Kevin Stemp, Antitrust Class Actions: More Rigor, Fewer Shortcuts, Class Action Reports, Nov.-Dec. 2009.

± Frederic M. Scherer, Class Actions in the U.S. Experience: An Economist's Perception (KSG Working Paper No. RWP07-028, June 2007).

± Ellen Meriwether, Rigorous Analysis in Certification of Antitrust Class Actions: A Plaintiff’s Perspective, Antitrust, Summer 2007, at 55.

General class action commentary

John C. Coffee, Jr. & Daniel Wolf, Class Certification: Trends and Developments Over the Last Five Years (2004-2009) (Sept. 1, 2009)

Class Action Fairness Act of 2005

± Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View (U of Penn Law School, Public Law Research Paper No. 08-03, 2008).

Tolling

American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974)

Class action settlements

In re Visa Check/Mastermoney Antitrust Litig., No. 96 CV 5238(JG) (E.D.N.Y. Dec. 19, 2003) (reported as 297 F. Supp. 2d 503), ± aff'd sub nom. Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96 (2d Cir. 2005) (see below for case materials)

Commentary

± Jonathan R. Macey & Geoffrey P. Miller, Judicial Review of Class Action Settlements, 1 J. Leg. Analysis 167 (2009).

Releases

Complaint, Target Corp. v. Visa Int'l, Inc., No. 13-cv-3477 (AKH) (S.D.N.Y. filed May 23, 2013)

Docket sheet (downloaded Oct. 22, 2013)

Memorandum of Law in Support of Defendants’ Motion to Dismiss (Aug. 13, 2013)

Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (Sept. 27, 2013)

Reply Memorandum of Law in Support of Defendants’ Motion to Dismiss (Oct. 18, 2013)

Transfer Order (J.P.M.L. ____) (transferring case to the Eastern District of New York)

Objectors

The Rodriguez cases

Rodriguez v. W. Publ'g Corp., No. 07-56643 (9th Cir. Apr. 23, 2009) (reported at 563 F.3d 948)

Rodriguez v. Disner, No. 10-55309 (9th Cir. Aug. 10, 2012) (reported at 688 F.3d 645)

Stetson v. Grissom, No. 13–57061 (9th Cir. 2016) (reported at 821 F.3d 1157)

Selection of class counsel

In re Auction Houses Antitrust Litig., 197 F.R.D. 71 (S.D.N.Y. 2000) (using auction as a selection process)

Class counsel fees:
Standard awards

Marchbanks Truck Serv., Inc. v. Comdata Network, Inc., No. 07-1078-JKG (E.D. Pa. July 14, 2014)

Third Consolidated Amended Complaint (Apr. 21, 2011)

Definitive Master Class Settlement Agreement

{Proposed] Plan of Administration and Distribution

Notice of Class Action Settlement

Claim form

Plaintiffs’ Unopposed Motion for an Award of Attorneys’ Fees, Reimbursement of Expenses, and Payment of Service Awards to the Class Representatives (May 5, 2014)

Memorandum in Support of Plaintiffs’ Unopposed Motion for an Award of Attorneys’ Fees, Reimbursement of Expenses, and Payment of Service Awards to the Class Representatives (May 5, 2014)

Declaration of Co-Lead Counsel Eric L. Cramer, Esq. in Support of (1) Plaintiffs' Unopposed Motion for an Award of Attorneys' Fees, Reimbursement of Expenses, and Payment of Service Awards to the Class Representatives and (2) Plaintiffs' Motion for Final Approval of Settlement (May 5, 2014)

± Settlement Administrator's web page

In re Currency Conversion Fee Antitrust Litig., MDL No. 1409 (S.D.N.Y. 2009) (reported at 263 F.R.D. 110)

In re Vitamins Antitrust Litig., 398 F. Supp. 2d 209 (D.D.C. 2005)

In re Visa Check/Mastermoney Antitrust Litig., No. 96 CV 5238(JG) (E.D.N.Y. Dec. 19, 2003) (reported as 297 F. Supp. 2d 503), ± aff'd sub nom., Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96 (2d Cir. 2005)

Commentary

± Theodore Eisenberg & Geoffrey P. Miller, Attorneys’ Fees and Expenses in Class Action Settlements: 1993-2008 (Cornell Law Faculty Working Papers No. 64, Oct. 30, 2009), final version at 7 J. Empirical L. Stud. 248 (2010).

± Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. Empirical L. Stud. 811, 838 (2010).

Class counsel fees:
Problems

In re TFT-LCD (Flat Panel) Antitrust Litig., 637 F. App'x 981 (9th Cir. 2016) (unpublished) (upholding award of attorneys' fees $1.75 million, which represented approximately 80% less than the class counsel's request of $9.1 million, where plaintiff Best Buy sought $800 million in damages, the jury awarded $7.47 million, and the trebled amount was entrely offset by $229 million in prior settlements)

Special Master's Report and Recommendation re Best Buy's Motion for Fees and Costs and Hannstar's Objection to Bill of Costs (N.D. Cal. Feb. 3, 2014)

Order Denying Best Buy’s Objections to Special Master’s Order (N.D. Cal. May 12, 2014)

In re TFT-LCD (Flat Panel) Antitrust Litig., 637 F. App'x 981 (9th Cir. 2016) (affirming award of attorney fees)

Allen v Dairy Farmers of Am., No. 5:09-cv-230 (D. Vt. June 14, 2016)

Docket sheet (downloaded June 15, 2016)

Memorandum in Support of Plaintiffs’ Motion for Award of Attorneys’ Fees, Reimbursement of Expenses, and Incentive Awards for Class Representatives (June 3, 2011)

Rodriguez v. Disner, No. 10-55309 (9th Cir. Aug. 10, 2012) (affirming denial of fees to class counsel due to ethical improprieties regarding commitments to named plaintiffs to seek incentive awards based on size of recovery) (reported at 688 F.3d 645)

Rodriguez v. West Publ'g Corp., No. 07-56643 (9th Cir. Apr. 23, 2009) (affirming the class action settlement as fair and adequate but reversing and remanding the district court’s orders granting class counsel attorneys’ fees and denying fees to objectors’ counsel) (reported at 563 F.3d 948)

In re First Databank Antitrust Litig.,No. 1:01-cv-00870-TPJ (D.D.C. Feb. 14, 2002) (holding, on FTC's objection to fee petition, that class counsel was entitled to fees only in respect of value created by counsel over and above that created by the FTC in its investigation and settlement) (reported at 209 F. Supp. 2d 96)

Federal Trade Commission’s Memorandum of Points and Authorities in Support of Motion to Intervene for the Limited Purpose of Opposing Class Counsel’s Fee Application or, in the Alternative, to Participate as Amicus Curiae (Jan. 2, 2002)

Class counsel fees:
Exceptional cases

Class Plaintiffs’ Notice of Motion and Joint Motion for Award of Attorneys’ Fees, Expenses and Class Plaintiffs’ Awards, In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., No. 1:05-md-01720-JG-JO (E.D.N.Y. filed Apr. 11, 2013) (requesting fees equal to 10 percent of the settlement common fund of $7.25 billion—which would be the largest fee award in any class action of any type—and reimbursement of expenses of $27 million).

Memorandum in Support of Class Plaintiffs’ Joint Motion for Award of Attorneys’ Fees, Expenses and Class Plaintiffs’ Awards (Apr. 11, 2013)

Declaration of Professor Charles Silver Concerning the Reasonableness of Class Counsel's Request for an Award of Attorneys' Fees (Apr. 11, 2013)

Opposition of Objector Jon M. Zimmerman to Plaintiffs’ Joint Motion for Award of Attorneys’ Fees, Expenses and Class Plaintiffs’ Awards (May 28, 2013)

Reply Memorandum in Support of Class Plaintiffs’ Joint Motion for Award of Attorneys’ Fees, Expenses and Class Plaintiffs’ Awards (Aug. 16, 2013) (amending request for fees to be 10 percent of $5.7 billion, which is the settlement common fund of $7.25 billion after reductions for opt-outs)

Memorandum and Order (Jan. 10, 2014) (awarding $$544.8 million in attorneys' fees and $27 million for expenses)

NB: On June 30, 2016, the Second Circuit in In re Payment Card Interchange Fee & Merchant Discount Antitrust Litig., No. 12-4671 (2d Cir. June 30, 2016), reversed and vacated the certification of the classes.. For more papers in the case, including the briefs on appeal, see here.

Partial settlements

Award to reimburse past and future litigation expenses

Order Granting Final Approval to Settlement and Final Judgment, In re Korean Ramen Antitrust Litig., Civ. A. No. C-13-04115-WHO (N.D. Cal. Aug. 22, 2016) (reported at 2016 WL 8188743)

Consolidated Direct Purchaser Class Action Complaint (Mar. 24, 2014)

Consolidated Indirect Purchaser Class Action Complaint (Mar. 24, 2014)

Indirect Purchaser Plaintiffs’ Notice of Motion and Motion for Final Approval of Settlement with Defendant Samyang Foods Co. Ltd., and Reimbursement of Expenses; Memorandum in Support Thereof (July 6, 2016)

Objector fees

 

--Generally

Park v. Thomson Corp., No. 05 Civ. 2931 (WHP) (S.D.N.Y. Apr. 2, 2009) (reported at 633 F. Supp. 2d 8)

--Bond on appeal by objectors

Indirect Purchaser Class’ Motion for Order Requiring Posting of Appeal Bond and Incorporated Memorandum of Law, In re Polyurethane Foam Antitrust Litigation (Indirect {Purchaser Plaintiffs), No. 1:10 MD 2196 (N.D. Ohio Mar. 1, 2016)

Opposition to Indirect Purchaser Class' Motion for Order Requiring Posting of Appeal Bond (Mar. 4, 2016) (filed by Appellant-Objector Sean Cochran)

Opposition to Indirect Purchaser Class’ Motion for Order Requiring Posting of Appeal Bond (Mar. 11, 2016) (filed by Appellant-Objector Jill K. Cannata)

Opposition to Class Counsel's Motion to Require Posting of Appeal Bond by Objector-Appellant (Mar. 17, 2016)

Indirect Purchaser Class’ Omnibus Reply in Support of Motion for Order Requiring Posting of Appeal Bond (Mar. 24, 2016)

Memorandum Opinion and Order re: Appeal Bond (Apr. 13, 2016) (clarified on April 14, 2016, that liability for the bond is joint and several) (reported at 178 F. Supp. 3d 635)

 

Docket sheet (downloaded Mar. 28, 2017)

European representative litigation

Paolo Buccirossi, Michele Carpagnano, Lorenzo Ciari, Massimo Tognoni & Cristiana Vitale, Collective Redress in Antitrust, Report Prepared for Eur. Comm'n, Directorate General for Internal Policies, Policy Department A: Economic and Scientific Policy (June 2012).

Fairness in Class Action Litigation Act of 2017

Fairness in Class Action Litigation Act of 2017, H.R. 985, 115th Cong. (2017) (as introduced in the House of February 9, 2017)

Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, H.R. 985, 115th Cong. (2017) (as reported by the House Comm. on the Judiciary on March 7, 2017)

Fairness In Class Action Litigation Act of 2017, H.R. No. 115-25 (March 7, 2017)

Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, H.R. 985, 115th Cong. (2017) (as passed by the House of Representatives on March 9, 2017 (220-201))

Comments

Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Comments on the Fairness in Class Action Litigation Act of 2017 (H.R. 985) (Feb. 14, 2017)

Elizabeth Chamblee Burch, University of Georgia Law School

Case Studies

NHL Broadcast
Rail Freight Fuel Surcharge
Chocolate
Cox Enterprises Set-Top Boxes
Class 8 Transmission Indirect Purchasers (filed 2011)
Online DVD Antitrust Litigation
Allen v. Dairy Farmers
Blood Reagents
Somers v. Apple
Processed Egg Products
Packaged Ice
Food Lion v. Dean Foods/DFA (filed 2007)
Evanston Northwestern Health Care
Natchitoches Parish Hosp. v. Tyco Int'l
Fresh Del Monte Pineapples
Intel Microprocessors (Indirect Purchasers) (2005)
Visa Check/Mastermoney

NHL Broadcast

Opinion & Order, Laumannl v. National Hockey League, 1:12-cv-01817 (S.D.N.Y. May 14, 2015) (granting certification of a Rule 23(b)(2) class and denying certification of a Rule 23(b)(3) class)

Docket sheet (downloaded June 4, 2016)

Plaintiffs’ Motions for Class Certification and Appointment of Class Counsel (Sept. 19, 2014)

Memorandum of Law in Support of Plaintiffs’ Motions for Class Certification aAnd Appointment of Class Counsel (Sept. 19, 2014)

Declaration of Roger G. Noll (Sept. 19, 2014) (redacted)

Supplemental Declaration of Roger G. Noll (Oct. 3, 2014)

Corrected Joint Memorandum of Law in Opposition to Class Certification (Nov. 12, 2014; redacted version Nov. 25, 2014)

Reply Memorandum of Law in Support of Plaintiff’s Motions for Class Certification (Dec. 29, 2014; redacted versionJan. 14, 2015)

Reply Declaration of Roger G. Noll (Dec. 29, 2014; redacted versionJan. 14, 2015)

Defendants’ Joint Motion to Exclude Opinions and Testimony of Plaintiffs' Expert Dr. Roger G. Noll (Nov. 12, 2014)

Corrected Memorandum of Law in Support of Defendants' Joint Motion to Exclude Opinions aAnd Testimony of Plaintiffs' Expert, Dr. Roger Noll (Nov. 12, 2014; redacted version Nov. 24, 2014)

Declaration of Daniel L. McFadden (Nov. 12, 2014; redacted version Nov. 24, 2014)

Declaration of Ariel Pakes (Nov. 11; redacted version Nov. 24, 2014)

Memorandum of Law in Opposition to Defendants’ Joint Motion to Exclude Opinions and Testimony of Plaintiffs’ Expert Roger G. Noll (Dec. 29, 2014; redacted version Jan. 14, 2015)

Reply Declaration of Roger G. Noll (Dec. 29, 2014; redacted versionJan. 14, 2015)

Reply Memorandum of Law In Support of Defendants’ Joint Motion to Exclude Opinions and Testimony of Plaintiffs’ Expert Dr. Roger Noll (Jan. 16, 2015; Jan. 30, 2015)

Reply Declaration of Daniel L. McFadden (Jan, 16, 2015; redacted version Jan. 30, 2015)

Reply Declaration of Ariel Pakes (Jan, 16, 2015; redacted version Jan. 30, 2015)

Supplemental Declaration of Ariel Pakes (Feb. 3, 2015; redacted version Feb. 18, 2015) (correcting Exhibits 6 and 7)

Second Supplemental Declaration of Ariel Pakes (Mar. 11, 2015; redacted version Mar. 12, 2015) (correcting Exhibits 6 and 7)

Daubert hearing

Day 1 Transcript (Mar. 17, 2014)

Day 2 Transcript (Mar. 18, 2014)

Day 3 Transcript (Mar. 19, 2014)

Corrected Opinion & Order (May 14, 2015; corrected May 29, 2015) (excluding plaintiff's expert economic testimony on damages, which was the reason for denying the Rule 23(b)(3) certification) (original opinion)

Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement (June 11, 2015)

Plaintiffs’ Memorandum in Support of Motion for Preliminary Approval of Class Action Settlement (June 11, 2015)

Class Action Settlement Agreement

Order Preliminarily Approving Proposed Settlement, Scheduling Hearing for Final Approval Thereof, and Approving the Proposed Form and Program of Notice to the Class (June 15, 2015)

Plaintiffs’ Application for an Award of Attorneys’ Fees, Service Awards, and Reimbursement of Expenses (Aug. 10, 2015)

Declaration of Ian Ayres (Aug. 12, 2015) (redacted)

Order Approving Class Settlement and Awarding Attorneys Fees and Costs (Sept. 1, 2015)

Declaration of Nili R. Doff Certifying Compliance with Settlement Agreement (Apr. 12, 2016)

Notice of Certification of Compliance (Apr. 13, 2016)

Declaration of Jennifer Gaiski Certifying the Comcast Defendants’ Compliance with the Settlement Agreement (Apr. 13, 2016)

Notice of DirecTV Defendants’ Certificate of Compliance (Apr. 13, 2016)

Declaration of Christopher A. Murphy Certifying the DirecTV Defendants' Compliance with Class Action Settlement Agreement (Apr. 13, 2016)

Rail Freight Fuel Surcharge

In re Rail Freight Fuel Surcharge Antitrust Litig., No. 12-7085 (D.C. Cir. Aug. 9, 2013) (reported at 725 F.3d 244)

Docket sheet (downloaded Sept. 28, 2013)

Initial Opening Brief of Petitioners (Dec. 3, 2012)

Brief of Respondents (Jan. 10, 2013)

Initial Reply Brief of Petitioners (Jan. 31, 2013)

Final Opening Brief of Petitioners (Feb. 21, 2013)

Final Brief of Respondents (Feb. 21, 2013)

Final Reply Brief of Petitioners (Feb. 21, 2013)

Opinion (Aug. 9, 2013)

Judgment (Aug. 9, 2013) (vacating and remanding case for reconsideration in light of Comcast Corp. v. Behrend)

Chocolate

Memorandum, In re Chocolate Confectionary Antitrust Litig., No. 1:08-mdl-01935-CCC (M.D. Pa. Dec. 7, 2012) (denying motions in limine to exclude expert testimony and granting class certification)

Direct Purchaser Class Plaintiffs' Motion for Class Certification (May 27, 2011)

Memorandum of Law in Support of Direct Purchaser Class Plaintiffs' Motion for Class Certification (May 27, 2012)

Defendants’ Memorandum of Law in Opposition to Direct Purchaser Class Plaintiffs’ Motion for Class Certification (Aug. 12, 2011)

Reply Memorandum of Law In Support of Direct Purchaser Class Plaintiffs' Motion for Class Certification (Oct. 21, 2011)

Cox Enterprises Set-Top Boxes

First Amended Consolidated Class Action Complaint, In re Cox Enterprises, Inc. Set-Top Cable Television Box Antitrust Litig., No. 5:09-ml-02048-C (W.D. Okla. Dec. 28, 2011)

Docket sheet (downloaded Oct. 23, 2015)

Memorandum Opinion and Order, In re Cox Enterprises, Inc. Set-Top Cable Television Box Antitrust Litig., No. 5:09-ml-02048-C (W.D. Okla. Dec. 28, 2011) (denying certification to a nationwide class)

Plaintiffs' Motion for Class Certification (July 29, 2011)

Opposition to Motion for Class Certification (Aug. 30, 2011)

Plaintiffs’ Reply in Support of Plaintiffs’ Motion for Class Certification (Sept. 23, 2011)

Gelder v. Coxcom Inc., No. 12-706 (10th Cir. Aug. 8, 2012) (per curiam) (denying petition to appeal denial of class certification) (reported as 696 F.3d 966)

Docket sheet (downloaded Mar. 7, 2013)

Petition of Plaintiffs for Leave to Appeal Pursuant to Fed. R. Civ. P. 23(f) (Apr. 11, 2012)

Defendant-Respondent Cox Communications, Inc.’a Answer in Opposition to Plaintiffs’ Petition for Leave to Appeal Pursuant to Fed. R. Civ. P. 23(f) (Apr. 26, 2012)

Reply Brief in Support of Petition of Plaintiffs for Leave to Appeal Pursuant to Fed. R. Civ. P. 23(f) (May 7, 2012)

Note: After the Tenth Circuit affirmed the district court's denial of certification to a nationwide class, the plaintiffs filed multiple class actions around the country for isolated geographic regions. As in the original action, the cases were consolidated in the Western District of Oklahoma for pretrial proceedings. A bellweather case for Oklahoma City proceeded to trial in 2015. See Healy v. Cox Commc'ns, Inc., CIV-12-481-C (filed Apr. 30, 2012) in Unit 22: Tying Arrangements

Class 8 Transmission Indirect Purchasers
(2011)

District court

Third Amended Class Action Complaint, In re Class 8 Transmission Indirect Purchaser Antitrust Litig., No. 1:11-cv-00009-SLR (D. Del. filed Jan. 15, 2013) (original complaint filed Oct. 4, 2010)

Docket sheet (downloaded June 19, 2016)

Plaintiffs’ Motion for Leave to Withdraw Class Representatives and to Substitute New Class Representatives in their Place (Nov. 3, 2014)

Defendants’ Opposition to Plaintiffs’ Motion to Substitute New Class Representatives (Nov. 20, 2014)

Plaintiffs’ Reply in Further Support of their Motion to Substitute Class Representatives in the California and Kansas Classes (Dec. 1, 2014)

Indirect Purchaser Plaintiffs’ Motion for Class Certification (Nov. 3, 2014)

Brief in Support of Indirect Purchaser Plaintiffs’ Motion for Class Certification (Nov. 3, 2014; redacted version filed Nov. 10, 2013)

Declaration of Russell Lamb (Nov. 3, 2014; redacted version filed Nov. 10, 2013)

Appendix A
Appendix B

Defendants’ Brief in Opposition to Indirect Purchaser Plaintiffs’ Motion for Class Certification (Jan. 30, 2015)

Reply Brief in Further Support of Indirect Purchaser Plaintiffs’ Motion for Class Certification (Mar. 13, 2015)

Memorandum Opinion (Oct. 21, 2015) (denying motion for class certification, denying motion to substitute class representatives as moot, and dismissing case) (reported at 140 F. Supp. 3d 339)

Order (Oct. 21, 2015)

Notice of Appeal (Nov. 17, 2015)

Third Circuit

In re Class 8 Transmission Indirect Purchaser Antitrust Litig., No. 15-3791 (3d Cir. docketed Nov. 20, 2015)

Docket sheet (downloaded June 19, 2016)

Redacted Brief and Appendix for Plaintiff-Appellant (Feb. 10, 2016)

Answering Brief (Mar. 11, 2016) (filed under seal)

Redacted Brief for Plaintiff-Appellant (Mar. 28, 2016)

Online DVD

In re Online DVD Rental Antitrust Litig., No. M 09-2029 PJH (N.D. Cal. Dec. 23, 2010) (granting certification) (reported at 2010 WL 5396064)

Notice of Motion and Plaintiffs' Motion for Class Certification; Memorandum In Support Thereof (Mar. 23, 2010)

Expert Report of John C. Beyer, Ph.D. Pursuant to Federal Rule 26(a)(2)(B) in Support of Class Certification (Mar.23, 2010)

Defendants' Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Class Certification (May 28, 2010)

Expert Report of Janusz A. Ordover in Opposition to Class Certification (May 28, 2010)

NB: In ±Fosmire v. Progressive Max Ins. Co., 2011 WL 4801915 (W.D. Wash. 2011), the district court noted its "doubts that the lax standard set forth in In re Online DVD Rental remains viable following the Supreme Court's decision in Dukes and its dicta indicating that some form of Daubert analysis is applicable at the class certification stage." Id. at *5 n. 10.

Allen v. Dairy Farmers
(filed 2009)

Revised Consolidated Amended Class Action Complaint and Jury Demand, Allen v. Dairy Farmers of Am., Inc., No. 5:09-cv-230 (D. Vt. Nov. 12, 2010) (original complaint filed Oct. 8, 2009)

Opinion and Order Denying without Prejudice Plaintiffs' Motion for Class Certification (Dec. 9, 2011) (reported at 2011 WL 6148678)

Opinion and Order Granting Plaintiffs' Renewed Motion for Class Certification (Nov. 19, 2012)

Blood Reagents

E.D. Pa.

Consolidated Amended Class Action Compalint, In re Blood Reagents Anttirust Litig., No. 2:09-md-02081-JD (E.D. Pa. filed Feb. 16, 2010)

Docket sheet (downloaded Mar. 5, 2016)

Memorandum (Aug. 22, 2012) (granting motion to certify class)

Order (Aug. 22, 2012)

Notice of Appeal (Oct. 25, 2012)

 

Third Circuit Rule 23(f) interim appeal

Docket sheet No. 12-8086 (Rule 23(f) petition) (downloaded Mar. 5, 2016)

Defendant-Petitioner Ortho-Clinical Diagnostics, Inc.'s Petition for Permission to Appeal Pursuant to Federal Rule of Civil Procedure 23(f) (Sept. 6, 2012)

Plaintiffs-Respondents' Opposition to Defendant-Petitioner Ortho-Clinical Diagnostics, Inc.'s Petition for Permission to Appeal Pursuant to Federal Rule of Civil Procedure 23(f) (Sept. 18, 2012)

Defendant-Petitioner Ortho-Clinical Diagnostics, Inc.'s Reply in Support of Petition for Permission to Appeal Pursuant to Federal Rule Of Civil Procedure 23(f) (Sept. 26, 2012)

Order (Oct. 25, 2012) (granting leave to appeal)

 

Docket sheet No. 12-4067 (merits) (downloaded Mar. 5, 2016)

Opening Brief of Appellant Ortho-Clinical Diagnostics, Inc. (May 8, 2013)

Brief in Opposition (filed under seal)

Reply Brief of Appellant Ortho-Clinical Diagnostics, Inc. (June 24, 2013)

Opinion (Apr.. 8, 2015) (reversing order certifying class)

Judgment (Apr. 8, 2015)

Mandate (Apr. 30, 2015)

 

E.D. Pa.

Memorandum (Oct. 19, 2015) (granting motion to certify class)

Order (Oct. 19, 2015)

 

Tenth Circuit Rule 23(f) interim appeal

Docket sheet No. 15-8108 (downloaded Mar. 6, 2016)

Petition (Nov. 2, 2015) (filed under seal)

Plaintiffs-Respondents’ Opposition to Defendant-Petitioner Ortho-Clinical Diagnostics, Inc.’s Petition for Permission to Appeal Pursuant to Federal Rule of Civil Procedure 23(f) (Nov. 12, 2015)

Defendant-Petitioner Ortho-Clinical Diagnostics, Inc.’s Reply in Support of Petition for Permission to Appeal Pursuant to Federal Rule of Civil Procedure 23(f) (Nov. 20, 2015)

Order (Dec. 18, 2015) (denying leave to appeal)

 

E.D. Pa.

Order Approving Forms of Class Notice and Proposed Notice Plan and Authorizing Dissemination of Class Notice (Jan. 27, 2015)

± Class administrator web site

± Class administrator web site for Immucor settlement

Optical Disks

 

Docket sheet (downloaded Mar. 6, 2016)

Order Denying Motions for Class Certification (Oct. 13, 2014)

Somers v. Apple
(filed 2009)

Somers v. Apple, Inc., Civ. A. No. No. C 07-06507 JW (N.D. Cal. filed July 17, 2009) (reported as 258 F.R.D. 354) (rejecting plaintiff expert's testimony on impact and damages as unreliable and denying class certification to indirect purchaser class)

Docket sheet (downloaded Feb. 26, 2009)
Complaint (Dec. 31, 2007)

Notice of Motion and Motion for Class Certification and Appointment of Co-Lead Class Counsel; Memorandum of Points and Authorities in Support of Motion (Feb. 23, 2009)

Affidavit of Gary L. French, Ph.D. (redacted)

[Redacted] Defendant’s Memorandum in Opposition to Motion for Class Certification (Apr. 20, 2009)

[Redacted] Reply Memorandum in Support of Motion for Class Certification and Appointment of Class Counsel (May 19, 2009) (Appendices A and B)

Order denying in part Motion to Certify Class under Rule 23(b)(3). The Court defers ruling on class certification under Rule 23(b)(2) pending further briefing (July 17, 2009)

Supplemental Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Class Certification of a Rule 23(B)(2) Class and Appointment of Class Counsel (Aug, 31, 2009)

Defendant’s Response to Plaintiff’s Supplemental Memorandum re Rule 23(B)(2) Class (Sept. 28, 2009)

Reply Memorandum of Points and Authorities in Support of Plaintiff's Supplemental Motion for Class Certification of a Rule 23(B)(2) Class and Appointment of Class Counsel (Nov. 9, 2009)

Processed Egg Products
(filed 2008)

MDL Panel

Transfer Order, In re Processed Egg Prods. Antitrust Litig., MDL No. 2002 (J.P.M.L. Dec. 2, 2008)

E.D. Pa.

Consolidated Amended Class Action Complaint, In re Processed Egg Prods. Antitrust Litig., No. 08-md-2002 (E.D. Pa. Feb. 27, 2009) (indirect purchasers)

Second Consolidated Amended Class Action Complaint, In re Processed Egg Prods. Antitrust Litig., No. 08-md-2002 (E.D. Pa. Dec. 14, 2009) (direct purchasers)

Docket sheet (downloaded Mar. 25, 2016)

In re Processed Egg Prods. Antitrust Litig., No. 08-md-2002 (E.D. Pa. Sept. 18, 2015) (partially granting motion for class certification to direct purchaser class)

In re Processed Egg Prods. Antitrust Litig., No. 08-md-2002 (E.D. Pa. Sept. 18, 2015) (denying class action status to indirect purchaser class)

In re Processed Egg Prods. Antitrust Litig., No. 08-md-2002 (E.D. Pa. Nov. 10, 2015) (granting class certification to a subclass of direct purchasers of shell eggs but denying class certification to a subclass of direct purchasers of egg products)

Amended Order, In re Processed Egg Prods. Antitrust Litig., No. 08-md-2002 (E.D. Pa. Nov. 12, 2015) (amending order to certify class of direct purchasers of shell eggs but leaving class period determination for further briefing)

Order, In re Processed Egg Prods. Antitrust Litig., No. 08-md-2002 (E.D. Pa. Feb. 3, 2015) (certifying class of direct purchusers of shell eggs during the Class Period from September 24, 2004 through December 31, 2008)

 

± Settlement Administration web site

Packaged Ice
(filed 2008)

 

MDL Panel

Transfer Order, In re Packaged Ice Antitrust Litig. , No. MDL 1952 (J.P.M.L. June 5, 2008)

± MDL Panel docket sheet

E.D. Mich

Consolidated amended class action complaint, In re Packaged Ice Antitrust Litig., No. 08-MD-01952 (E.D. Mich. filed Sept. 15, 2009) (direct purchaser actions)

Amended class action complaint, In re Packaged Ice Antitrust Litig., No. 2:08-MD-01952 (E.D. Mich. filed Sept. 15, 2009) (indirect purchaser action)

E.D. Mich. docket sheet (downloaded May 20, 2011)

 

Order Granting Direct Purchaser Plaintiffs’ Motion to Compel U.S. Department of Justice to Produce Certain Tape Recordings which Will First Be Filed with The Court in Camera for Initial Court Examination for Any Privilege/Work Product Protections (E.D. Mich. May 10, 2011)

Direct Purchaser Plaintiffs’ Motion to Compel the U.S. Department of Justice to Produce Certain Tape Recordings and Verbatim Transcripts Thereof (Mar. 9, 2011)

Index of exhibits

Exhibit A—Reddy Ice news release (Oct. 29, 2010)

Exhibit B—Plaintiffs’ subpoena and cover letter (Jan. 24, 2011)

Exhibit C—Department of Justice objections to subpoena (Feb. 4, 2011)

Exhibit D—United States v. Arctic Glacier sentencing transcript (Feb. 22, 2010) (excerpts)

Exhibit E—Deposition of Keith Corbin, November 16, 2010 (excerpts)

Brief of the United States in Opposition to Direct Purchaser Plaintiffs’ Motion to Compel the U.S. Department of Justice to Produce Certain Tape Recordings and Verbatim Transcripts Thereof (Mar. 28, 2011)

Exhibit A: AAG Varney Decision

Exhibit B: 28 C.F.R. §16.26

Exhibit C: Varney Declaration

Exhibit D: Culum Declaration

Exhibit E: Farren Declaration

Direct Purchaser Plaintiffs’ Reply Brief in Support of Motion to Compel the U.S. Department of Justice to Produce Certain Tape Recordings and Verbatim Transcripts Thereof (Apr. 1, 2011)

Exhibit A—Memorandum Order in Rail Freight Fuel Surcharge Antitrust Litig., MDL No. 1869 (D.D.C. Sept. 9, 2010)

Exhibit B—Declaration of Gregory K. Arenson, Esq. (with three attachments)

Exhibit C—Amended complaint, Martin McNulty v. Reddy Ice, Civil No. 2:08-cv-13178 (E.D. Mich.) (Borman, J.) (Docket No. 43—excerpts)

Exhibit D—Stipulated Protective Order Concerning Confidentiality of Discovery Materials, In re Packaged Ice

SEC disclosures

Reddy Ice Holdings, Inc., Form 10-K For the fiscal year ended Dec. 31, 2010 (filed Feb. 19, 2011)

Food Lioon v. Dean Foods/DFA
(filed 2007)

District court

Amended Class Action Complaint, Food Lion, LLC v. Dean Foods Co., MDL No.1899, No. 2:07-cv-00188 (E.D. Tenn. filed Mar. 28, 2008) (original complaint filed Aug. 9, 2007)

Docket sheet (downloaded Jan. 27, 2016)

Memorandum Opinion (Aug. 4, 2010) (granting the defenddants' motion for summary judgment in part and dismissing counts II, III, and IV)

Order Regarding Document 1084 (Dec. 8, 2010) (denying motion to exclude plaintiff's expert report (Cotterill))

Memorandum Opinion and Order (Mar. 27, 2012) ( granting the defendants' supplemental motion for summary sudgment, and dismissing remaining counts I and V)

Judgment (Mar. 27, 2012)

Sixth Circuit

 

District court (on remand)

Retailer Plaintiffs’ Memorandum Concerning Outstanding Issues Remaining for Decision upon Remand (Feb. 17, 2015)

Defendants’ Response to Plaintiffs’ Memorandum Concerning Outstanding Issues Remaining for Decision upon Remand (Mar. 17, 2015)

Retailer Plaintiffs’ Supplemental Memorandum in Support of their Motion for Class Certification (Feb. 17, 2015)

Responsive pleadings filed under seal

Memorandum Opinion and Order (Jan. 21, 2016) (denying Motion to Exclude Opinions of Dr. Joseph P. Kalt Regarding Common Impact)

Memorandum Opinion and Order (Jan. 25, 2016) (denying motion to certify class)

Evanston Northwestern Health Care
(filed 2007)

Consolidated Class Action Complaint, In re Evanston Northwestern Healthcare Corporation Antitrust Litig., Master File No. 07-CV-4446 (N.D. Ill. filed Nov. 17, 2008) (original complaint filed Aug. 7, 2007) (challenging the merger of Evanston Northwestern Healthcare Corporation with Highland Park Hospital on January 1, 2000)

Pre-Trial Order No.2 Consolidating the Actions, Appointing Lead Plaintiff and Approving Selection of Interim Co-Lead Counsel (June 24, 2008)

Class certification

Plaintiffs’ Motion for Class Certification (Feb. 13, 2009)

Plaintiffs’ Memorandum of Law in Support of their Motion for Class Certification (Feb. 18, 2009)

Expert Report of Dr .David Dranove Supporting Motion for Class Certification (Feb. 18, 2009) (redacted)

Brief and Appendix by Northshore University HealthSystem in Opposition to plaintiffs' motion for class certification (June 9, 2009) (redacted version filed June 12, 2009)

Expert Report of Dr. Monica G. Noether Supporting Opposition to Plaintiffs’ Motion For Class Certification (June 12, 2009) (redacted version) (Exhibits)

Plaintiffs’ Motion to Exclude the Expert Opinion of Monica Noether (Dec. 9, 2009)

Plaintiffs’ Memorandum of Law In Support of their Motion to Exclude the Expert Opinion of Monica Noether (Dec. 9; redacted version filed Dec. 14, 2009)

Plaintiffs’ Reply Memorandum in Support of Motion for Class Certification (Dec. 9, 2009; redacted version filed Dec. 14, 2009)

Reply Report of Dr. David Dranove Supporting Motion for Class Certification (Dec. 8, 2009; redacted version filed Dec. 14, 2009)

Opinion and Order (Apr. 6, 2010) (redacted)

Rule 23(f) interlocutory appeal

Docket sheet (downloaded Aug. 3, 2012)

Order, In re Messner, No. 10-8015 (June 10, 2010) (granting petition for interlocutory appeal)

Brief and Required Short Appendix of Plaintiffs-Appellants (Aug. 2, 2010)

Brief of the American Antitrust Institute as Amicus Curiae in Support of Plaintiff-Appellants and Reversal (Aug. 13, 2010)

Amici Curiae Consumer Federation of America and United States Public Interest Research Group Brief in Support of Plaintiffs-Appellants (Aug. 13, 2010)

Opposition Brief of Defendant-Appellee (Sept. 1, 2010)

Reply Brief of Plaintiffs-Appellants (Sept. 15, 2010)

Opinion (Jan. 13, 2012) (± oral argument)

Final Judgment (Jan. 13, 2012)

Remand

Plaintiffs’ Motion for Entry of Order Certifying Class in Accordance with the Seventh Circuit Opinion (Apr. 4, 2012)

Plaintiffs’ Memorandum of Law in Support of their Motion for Entry of Order Certifying Class in Accordance with the Seventh Circuit Opinion (Apr. 4, 2012)

Brief of Defendant Northshore University Healthsystem in Opposition to Plaintiffs’ Motion for Class Certification (July 12, 2012)

 

FTC background

Administrative complaint (Feb. 10, 2004)

± FTC docket sheet

Initial Decision (Oct. 20, 2005) (finding merger to violate Section 7 and ordering divestiture)

Opinion of the Commission (Aug. 6, 2007) (affirming finding of liability)

Order
Concurring Opinion of Commissioner Jon Leibowitz
Concurring Opinion of Commissioner J. Thomas Rosch

Opinion of the Commission on Remedy (Apr. 28, 2008) (reversing divestiture order and order conduct relief)

Commentary

Deborah Haas-Wilson, Revisiting a Merger: FTC v. Evanston Northwestern Healthcare (2007), in The Antitrust Revolution 117 (John E. Kwoka, Jr. & Lawrence J. White eds., 6th ed. 2014).

Natchitoches Parish Hosp. v. Tyco Int'l
(filed 2005)

Natchitoches Parish Hosp. v. Tyco Int'l, Civ. A. No. 05-12024 (PBS) (D. Mass. )

Docket Sheet (downloaded Mar. 7, 2010)

Complaint (Oct. 5, 2005)

Memorandum and Order (____) (reported as 247 F.R.D. 253)

Memorandum and Order (Aug. 29, 2008) (finding predominance and certifying class)

Elhauge challenge: 

[Plaintiffs'] Expert Report of Professor Einer Elhauge (Dec. 18, 2007) (redacted version filed Apr. 11, 2008)

Tyco International (US) Inc., Tyco Healthcare Group LP, and The Kendall Healthcare Products Company's Motion to Exclude the Expert Report and Opinions of Professor Einer Elhauge (Oct. 17, 2008) (redacted)

Declaration of Daniel L. Mcfadden in Support of Motion to Exclude the Expert Report and Opinions of Professor Einer Elhauge (Oct. 17, 2008)

Expert Declaration of Professor Janusz A. Ordover in Support of Motion to Exclude the Testimony of Professor Einer Elhauge (Oct. 17. 2008)

Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Exclude the Expert Report and Opinions of Professor Einer Elhauge (Nov. 14, 2008) (modified redacted version filed Jan. 27, 2009)

Declaration of Professor Einer Elhauge (Nov. 14, 2008) (modified redacted version filed Jan. 27, 2009)
Deposition excerpts

Tyco International (US) Inc., Tyco Healthcare Group LP, and The Kendall Healthcare Products Company's Reply Brief in Support of the Motion to Exclude the Expert Report and Opinions of Professor Einer Elhauge (Nov. 26, 2008)

Expert Reply Declaration of Prof. Janusz A. Ordover in Support of Reply Brief in Support of the Motion to Exclude the Expert Report and Opinions of Professor Einer Elhauge (Nov. 26, 2008)

Reply Declaration of Daniel L. Mcfadden in Support of Reply Brief in Support of the Motion to Exclude the Expert Report and Opinions of Professor Einer Elhauge (Nov. 26, 2008)

Sur-Reply Memorandum of Law in Further Opposition to Defendant's Motion to Exclude the Expert Report and Testimony of Professor Einer Elhauge (Dec. 9, 2008)

Sur-Reply Declaration of Professor Einer Elhauge (Dec. 9, 2008) (modified redacted version filed Jan. 27, 2009)

Plaintiffs’ Supplemental Brief in Opposition to Defendants’ Motion to Exclude the Expert Report and Opinions of Professor Einer Elhauge (Jan. 5, 2009) (modified redacted version filed Jan. 27, 2009)

Exhibit A—McFadden deposition excerpts

Joint Report re Court-Appointed Expert (Nov. 6, 2008)

Report of Orley Ashenfelter (Sept. 17, 2009)

Comments by Natchitoches Parish Hospital Service District

Comments by Tyco Healthcare Group, L.P., The Kendall Healthcare Products Company, Tyco International, Ltd., Tyco International (U.S.), Inc.

Memorandum and Order (Sept. 21, 2009) (denying motion to exclude Professor Elhauge's testimony)

 

Singer challenge:

[Plaintiffs'] Expert Report of Dr. Hal Singer (Dec. 18, 2007) (on damages) (redacted version filed Apr. 11, 2008)

Expert Reply Declaration of Dr. Hal Singer (Feb. 15, 2008) (redacted version filed Apr. 11, 2008)

Revised Damages Estimates (redacted)

Tyco International (US) Inc., Tyco Healthcare Group LP, and The Kendall Healthcare Products Company's Motion to Exclude the Expert Report and Opinions of Dr. Hal Singer (Oct. 17, 2008)

Plaintiffs’ Memorandum in Opposition to Defendants’ Motion to Exclude the Expert Report and Opinions of Dr. Hal Singer (Nov. 14, 2008) (modified redacted version filed Jan. 27, 2009)

Tyco International (US) Inc., Tyco Healthcare Group LP, and The Kendall Healthcare Products Company's Reply Brief in Support of the Motion to Exclude the Expert Report and Opinions of Dr. Hal Singer (Nov. 26, 2008)

Plaintiffs’ Sur-Reply in Further Opposition to Defendants’ Motion to Exclude the Expert Report and Opinions of Dr. Hal Singer (Dec. 9, 2008)

Expert Declaration of Dr. Hal Singer (Dec. 9, 2008)

Joint Request to Withdraw the Motions to Exclude the Expert Reports and Opinions of Dr. Hal Singer and Ms. Margaret Guerin-Calvert (Jan. 6, 2009)

 

Guerin-Calvert challenge:

Plaintiffs’ Memorandum in Support of Motion to Exclude Testimony of Defendants’ Expert Margaret Guerin-Calvert (Oct. 17, 2009)

Tyco International (US) Inc., Tyco Healthcare Group LP, and The Kendall Healthcare Products Company’s Opposition to Plaintiffs’ Motion to Exclude the Testimony of Defendants’ Expert Margaret Guerin-Calvert (Nov. 14, 2008)

Reply Declaration of Margaret E. Guerin-Calvert (Nov. 14, 2008)

Plaintiffs’ Reply Memorandum in Further Support of Motion to Exclude Testimony of Defendants’ Expert Margaret Guerin-Calvert (Nov. 26, 2008)
Tyco International (US) Inc., Tyco Healthcare Group LP, and The Kendall Healthcare Products Company’s Sur-Reply in Opposition to Plaintiffs’ Motion to Exclude the Testimony of Defendants’ Expert Margaret Guerin-Calvert (Dec. 9, 2008)

Joint Request to Withdraw the Motions to Exclude the Expert Reports and Opinions of Dr. Hal Singer and Ms. Margaret Guerin-Calvert (Jan. 6, 2009)

 

McFadden challenge:

Plaintiffs’ Memorandum of Law in Support of the Motion to Strike the Expert Declaration of Daniel L. McFadden Pursuant to Rule 37(c) for Failure to Timely Disclose and for Reasonable Expenses And Attorneys’ Fees (Nov. 6, 2008)

Tyco International (US) Inc., Tyco Healthcare Group LP, and The Kendall Healthcare Products Company’s Opposition to Plaintiffs’ Motion to Strike the Expert Declaration of Daniel L. McFadden Pursuant to Rule 37(c) for Failure to Timely Disclose and for Reasonable Expenses and Attorneys’ Fees (Nov. 20, 2008)

Order entered denying Motion to Strike the Expert Declaration of Daniel L. McFadden Pursuant to Rule 38(c) for Failure to Timely Disclose and for Reasonable Expenses and Attorneys' Fees. ("However, plaintiffs may take his deposition and supplement their brief with an additional 10 page brief. There shall be no reply or supplemental defendant's expert reports.") (Nov. 14, 2008)

 

Motion for summary judgment:

Tyco International (US) Inc., Tyco Healthcare Group LP, and the Kendall Healthcare Products Company's Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment (July 29, 2009) (redacted version)

Statement of Material Facts L.R. 56.1

Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment (Aug. 28, 2009)

Counter Statement of Material Facts L.R. 56.1

Tyco International (US) Inc., Tyco Healthcare Group LP, and the Kendall Healthcare Products Company's Reply Memorandum in Support of Defendants' Motion for Summary Judgment (Sept. 15, 2009)

Plaintiffs’ Surreply in Opposition to Defendants’ Motion for Summary Judgment (Oct. 15, 2009)

Memorandum and Order (Nov. 20, 2009) (denying motion for summary judgment)

 

JMOL:

Tyco International (US) Inc., Tyco Healthcare Group LP, and The Kendall Healthcare Products Company’s Memorandum in Support of its Motion for Judgment as a Matter of Law (Jan. 5, 2010)

 

Settlement:

Plaintiffs’ Memorandum of Law in Support of Motion for Preliminary Approval of Settlement, Approval of Form of Notice and Setting of Final Settlement Hearing (Jan. 15, 2010)

Order entered allowing Motion for Settlement Preliminary Approval of Settlement, Approval of Form of Notice and Setting of Final Settlement Hearing by Natchitoches Parish Hospital Service District, J M Smith Corporation. "Allowed. I approve the notice with the following two exceptions. There should be a clear statement in the notice of when the claim is due. Second, strike the line on page 5 of the notice that the Court has not ruled on the merits of the claims or defenses." (Alba, Robert) (Entered: 01/19/2010)

Plaintiffs’ Memorandum in Support of Motion for Entry of an Order Granting Final Approval of Settlement (Feb. 23, 2010)

Memorandum in Support of Class Counsel’s Motion for an Award of Attorneys’ Fees, Reimbursement of Expenses, and Incentive Awards for the Class Representatives (Feb. 23, 2010)

Motions pending as of March 8, 2010

Interchange
(filed 2005)

Definitive Class Settlement Agreement

Notice of Class Plaintiffs’ Motion for Class Settlement Preliminary Approval (Oct. 19, 2012)

Memorandum in Support of Class Plaintiffs’ Motion for Class Settlement Preliminary Approval (Oct. 19, 2012)

 

Memorandum and Order (Dec. 13, 2013) (granting final approval to settlement), rev'd and classes decertified, In re Payment Card Interchange Fee & Merchant Discount Antitrust Litig., No. 12-4671 (2d Cir. June 30, 2016). For more papers in the case, including the briefs on appeal, see here.

Fresh Del Monte Pineapples
(filed 2004)

In re Fresh Del Monte Pineapples Antitrust Litig., No. 1:04-md-1628 (RMB), 2008 WL 5661873 (S.D.N.Y. Feb. 20, 2008) (granting motion to certify direct purchaser class on Sherman Act claims and denying motion to certify indirect purchaser class) (docket sheet (downloaded Mar. 27, 2010))

Consolidated Direct Purchaser and Indirect Purchaser Class Action Complaint (Aug. 2, 2004)

The Direct Purchaser and Indirect Purchaser Plaintiffs' Memorandum of Law in Support of the Motion for Class Certification Pursuant to Rule 23 of the Federal Rules of Civil Procedure (June 30, 2005)
Defendants' Opposition to Plaintiffs' Motion for Class Certification (Sept. 22, 2005)
Plaintiffs' Reply Memorandum of Law in Further Support of the Joint Motion for Class Certification Pursuant to Rule 23 of the Federal Rules of Civil Procedure (Sept. 26, 2005)
Defendants’ Supplemental Memorandum in Opposition to the Direct Purchaser Plaintiffs’ Motion For Class Certification (July 26, 2006)
Order (July 31, 2006) (directing parties to submit additional briefs on manageability of the indirect purchaser class)
Corrected Memorandum of Law in Response to the Court's Order Seeking Further Information as to the Manageability of the Indirect Purchaser Class (Sept. 1, 2006)
Del Monte's Supplemental Memorandum Concerning Manageability of Putative Indirect Purchaser Class (Oct. 3, 2006)
Plaintiffs' Proposed Findings of Fact and Conclusions of Law Regarding Manageability of the Indirect Purchaser Class (Apr. 16, 2007)
Del Monte's Proposed Findings of Fact and Conclusions of Law Regarding the Manageability of the Proposed Indirect Purchaser Class (May 11, 2007)
The Indirect Purchaser Plaintiffs' Reply Memorandum in Further Support of their Proposed Findings of Fact and Conclusions of Law (May 25, 2007)
Decision and Order (Feb. 20, 2008)

Del Monte's Memorandum in Support of Summary Judgment and Exclusion of Expert Evidence (Aug. 8, 2008)
Direct and Indirect Purchaser Plaintiffs' Joint Opposition to Defendants' Motion for Summary Judgment and Exclusion of Expert Testimony (Oct. 17, 2008)
Del Monte’s Reply in Support of Motion for Summary Judgment and Exclusion of Expert Testimony (Dec. 9, 2008)
Decision and Order (Sept. 30, 2009) (granting summary judgment to defendants)
Judgment (Sept. 30, 2009)

Intel Microprocessors (Indirect Purchasers)
(2005)

 

Visa Check/Mastermoney

In re Visa Check/Mastermoney Antitrust Litig., No. 96 CV 5238(JG) (E.D.N.Y. Dec. 19, 2003) (reported as 297 F. Supp. 2d 503), ± aff'd sub nom. Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96 (2d Cir. 2005) (see below for case materials)

Second Amended Consolidated Class Action Complaint and Jury Demand (May 26, 1999)
Visa Settlement Agreement (June 4, 2003)
MasterCard Settlement Agreement (June 4, 2003)
Memorandum of Law In Support of Motion for an Order Preliminarily Approving Visa Settlement (June 5, 2003)
Memorandum of Law In Support of Motion for an Order Preliminarily Approving MasterCard Settlement (June 5, 2003)
Court Order Preliminarily Approving Visa Settlement Agreement (June 13, 2003)
Court Order Preliminarily Approving MasterCard Settlement Agreement (June 13, 2003)
Stipulation and Order Approving Class Settlement Notice (June 13, 2003)

Memorandum of Law in Support of Plaintiffs' Motion for Final Approval of Visa Settlement and MasterCard Settlement (Sept. 18, 2003)

Declaration of Professor Eric D. Green
Supplemental Declaration of Lloyd Constantine, Esq.
Supplemental Declaration of Franklin M. Fisher Valuing Benefits to Class

District Court Order and Final Judgment Approving Visa Settlement (Jan. 23, 2004)
District Court Order and Final Judgment Approving MasterCard Settlement (Jan. 23, 2004)
Opinion, Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., Dkt. Nos. 04-0344-cv, 04-1052-cv, 04-0514-cv, 04-1055-cv (2d Cir. Jan. 4, 2005) (affirming in its entirety the District Court's orders approving class settlement and awarding attorneys' fees)

± Settlement web site

 

4. Private Cause of Action

6. Conspiracy