Antitrust Class Actions Research Articles

The Propriety and Inevitability of Netting in Antitrust Class Actions

How to define “antitrust injury” is an issue that has been the source of much debate among judges, lawyers, and academics alike. Specifically, a disagreement exists as to whether participation in a single transaction, which a defendant has allegedly tainted via anticompetitive behavior, is sufficient to constitute antitrust injury. Complicating this area of jurisprudential and doctrinal uncertainty are cases in which a plaintiff who has alleged injury as a result of anticompetitive conduct later reaped offsetting gains resulting from that very same conduct. The disagreements regarding the role of these net beneficiaries, and the netting process necessary to identify them, in antitrust suits implicate matters that extend far beyond legal theory. This Note outlines the multitude of ways in which the foregoing consequences manifest. It then highlights the propriety of a contextual approach in which courts are more willing to engage in nuanced and substantive class certification analyses that balance the interests of the litigants and the goals of the antitrust laws. The Note uses financial markets, and variations among the instruments therein, as a specific instantiation of these principles and a context in which a nuanced approach is especially compelling. It concludes by demonstrating that, regardless of whether a court incorporates netting into its definition of antitrust injury, it will have to contend with netting principles during the class–certification process.

The Critical Role of Private Antitrust Enforcement in the United States Commentary on: 2020 Antitrust Annual Report: Class Action Filings in Federal Court

With all of the attention currently focused on public enforcement and legislative reform of the antitrust laws, less attention is being paid to private enforcement. But Congress considered private antitrust enforcement indispensable for promoting competition. The judiciary has so recognized time and time again. In California v. American Stores Co., for example, the Supreme Court proclaimed, “Private enforcement of the [Clayton] Act was in no sense an afterthought; it was an integral part of the congressional plan for protecting competition.” Private enforcement is not a substitute for vigorous public enforcement. Both are necessary to foster competition. But private enforcement plays an important part, one that becomes more significant when public enforcement recedes. And, unlike public enforcers, private enforcers can obtain significant damages on behalf of the victims of antitrust violations. This serves as a crucial source of deterrence for illegal anticompetitive conduct and the primary means of compensating victims for harms suffered at the hands of cartelists and dominant firms. The importance of the antitrust class action, a major private enforcement device, is clear. The recently released 2020 Antitrust Annual Report: Class Action Filings in Federal Court (“2020 Report”) by Huntington National Bank and the University of San Francisco School of Law (“USF Law”) reflects that the cumulative total settlement amount recovered for victims in antitrust class actions from 2009-2020 was over $27 billion. Antitrust class actions recover damages from companies engaged in harmful, illegal conduct, such as price fixing and attempted monopolization, in markets for important and essential products and services. The most active defendants during the period, for example, included companies providing financial services, pharmaceuticals, automobile parts, and electronics parts. In light of the vital role played by private antitrust enforcement, and the antitrust class action in particular, continued empirical analysis of trends in activity is essential. This analysis aids in understanding and evaluating proposals for reforming the antitrust laws in the U.S. and such proposals’ impact on private enforcement, the public-private partnership, and ultimately on competition and consumers.

Antitrust Class Actions in the Wake of Procedural Reform

Antitrust Class Actions in the Wake of Procedural Reform

2020 Antitrust Annual Report: Class Action Filings in Federal Court

The 2020 Private Antitrust Enforcement Report provides various empirical analyses of antitrust class actions litigated in federal court from 2009 through 2020. It addresses various topics, including the number of antitrust class action complaints filed each year, the amount of time on average to reach a settlement, the mean and median recoveries, the attorneys' fees and costs awarded, the total settlement amounts in each year and overall, the law firms that represented plaintiffs and defendants in antitrust class action settlements, and the cumulative totals for claims administrators involved in the settlement process. The Report also distinguishing private antitrust enforcement by particular industries, by type of claim—conspiracy claims (under Section 1 of the Sherman Act) as opposed to claims based on unilateral conduct (Section 2 of the Sherman Act)—and by type of plaintiff—whether claims were brought on behalf of direct or indirect purchasers. The plan is to provide similar information on an annual basis. We hope that these reports will prove of interest to the academy and the public and private sectors, and that the data they analyze will offer a firmer empirical basis than would otherwise be possible for private decisions and for public policy discussions, as well as for actions related to enforcement of the antitrust laws through private class actions.

2019 Antitrust Annual Report: Class Action Filings in Federal Court

Last year, we provided an empirical analysis of private antitrust class action lawsuits and their resolutions in federal court from 2013 through 2018 (the 2018 Private Antitrust Enforcement Report). This Report (the 2019 Private Antitrust Enforcement Report) expands on that analysis significantly. It extends the period under consideration to include the years 2009 through 2019 and addresses new issues. To be sure, in part it revisits the same topics, including the number of antitrust class action complaints that are filed each year, the amount of time they took on average to reach a settlement, the mean and median recoveries, the attorneys' fees and costs awarded, and the total settlement amounts in each year and overall. The 2019 Private Antitrust Enforcement Report also analyzes the law firms that represented plaintiffs and defendants in antitrust class action settlements, describes cumulative results, and tabulates cumulative totals for claims administrators involved in the settlement process. The report also addresses new issues, such as distinguishing private antitrust enforcement by particular industries, by type of claim—conspiracy claims (under Section 1 of the Sherman Act) as opposed to claims based on unilateral conduct (Section 2 of the Sherman Act)—and by type of plaintiff—whether claims were brought on behalf of direct or indirect purchasers. The plan is to continue providing similar information on an annual basis. We hope that these reports will prove of interest to the academy and the public and private sectors, and that the data they analyze will provide a firmer empirical basis than would otherwise be possible for private decisions and for public policy discussions and actions related to enforcement of the antitrust laws through private class actions.

Taking a Bite at the Apple: Ensuring a Level-Playing-Field for Competition on App Stores

A number of competition authorities around the globe have started investigating Apple’s position as a “mobile apps gatekeeper”. In particular, after receiving a complaint by music streaming service Spotify in March, the European Commission recently sent out formal requests for information to assess whether Apple abuses its dominance towards app developers and publishers. Additionally, the Dutch competition authority ACM opened a probe into Apple’s alleged favoring of own apps over those of rivals, and similar procedures have been initiated in Russia and China. Competition law scrutiny is not limited to public enforcement. On May 13, 2019, the U.S. Supreme Court allowed an antitrust class action against Apple filed by consumers to move forward (Apple v Pepper). In the EC investigation, on which this article focuses, Spotify alleges that Apple is disadvantaging its rivals, in particular by imposing a “competitor tax” on them. The investigation aims at exploring the interplay between Apple’s mobile operating system (“iOS”), its “App Store”, in-app purchase functionalities, and Apple’s own music streaming service(s). This interplay affects many companies. In fact, media companies, press publisher associations, and screen time/parental control app developers have raised very similar concerns to those of Spotify, arguing that their respective apps are being disadvantaged. The investigations into Apple’s practices have strong similarities to past and ongoing investigations into the other big tech players: Amazon, Google, and Microsoft. One common ground of these investigations is concern about the neutrality of vertically-integrated dominant platforms. Having benefitted from vibrant participation on their multi-sided platforms and resulting indirect network effects for years, dominant platforms may have been incentivized into squeezing the business-side of their plat-forms to increase overall revenues (also with a view to counter stagnations in their ancient core business models (e.g. iPhone or ad sales), which has been seen as some form of “rent-seeking”). Akin to Amazon, Google, and Microsoft, operating both a dominant platform and services made available via such platform, has created a strong conflict of interest for Apple, as it now benefits from commercially favoring its own services via its platform.

2018 Antitrust Annual Report: Class Action Filings in Federal Court

Little empirical work has been done to analyze the filing and resolution of private antitrust class action lawsuits. This Report takes an important step toward rectifying that situation. It relies on data that is newly accessible in part through artificial intelligence. Some of the issues it addresses relate only to 2018 and others relate to the years 2013 through 2018. Topics include the number of antitrust class action complaints that are filed each year, the amount of time they took on average to reach a settlement, the mean and median recoveries, the attorney’s fees and costs awarded, and the total settlement amounts in each year and overall. The report also analyzes the law firms that represented plaintiffs and defendants in antitrust class action settlements, describing particular cases as well some cumulative results, and also tabulates cumulative totals for claims administrators involved in the settlement process. The plan is to continue providing similar information on an annual basis. The hope is that this data will prove of interest to the academy and the public and private sectors, and that the data will provide a firmer empirical basis than would otherwise be possible for private decisions and for public policy discussions and actions related to enforcement of the antitrust laws through private class actions.

The Justice of Unequal Pay in the UFC: An In-Depth Analysis of the Fighters’ Antitrust Class Action Lawsuit Against the UFC and the Misplaced Support of the Proposed Muhammad Ali Expansion Act

The Justice of Unequal Pay in the UFC: An In-Depth Analysis of the Fighters’ Antitrust Class Action Lawsuit Against the UFC and the Misplaced Support of the Proposed Muhammad Ali Expansion Act

The Effectiveness of Private Enforcement and Class Actions to Secure Antitrust Enforcement

The U.S. system has relied heavily on antitrust class actions as a means of ensuring compensation and deterrence. Although this tool seems sensible in theory, the reality is that it remains highly controversial. On the one hand, commentators argue that class actions force defendants to settle cases lacking merit. Even if a settlement agreement is assumed to have a merit, class actions are accused of doing a poor job in compensating victims and deterring wrongdoers. On the other hand, the proponents of class actions claim that there is no reliable empirical evidence proving that class action schemes caused negative effects on antitrust litigation. The public debate about the effectiveness of class actions illustrate the controversial nature of American class actions fairly well. Therefore, using comparative insights from the predominant controversies, this study will determine how well antitrust class actions fulfill compensation objectives and to what extent they can facilitate deterrence.

The Fall and Rise of the Antitrust Class Action

Jurisdictions all over the world are experimenting with different forms of collective actions in order to provide compensation for large numbers of victims with small claims in competition cases. This article surveys two nearly simultaneous developments: the cautious development of collective actions in competition cases outside the United States and the narrowing of class actions in the United States. This article then focuses on the key issue that will determine the fate of the nascent movement toward collective actions, namely the need for an opt-out mechanism to provide proper incentives with the collective assertion of small value claims. We conclude that, as a matter of both theory and practice, opt-in mechanisms are merely an inadequate form of joinder ill suited for collective actions in competition cases.

Turning Daubert on Its Head: Efforts to Banish Hypothesis Testing in Antitrust Class Actions

In recent cases, class action plaintiffs have sought to exclude statistical testing that can be useful for conducting the predominance inquiry required under the Federal Rules of Civil Procedure. The efforts to banish these methods are not only inconsistent with recent court decisions emphasizing the importance of rigorous analysis, but also seek to turn Daubert on its head. Statistical testing, such as the type plaintiffs have sought to exclude, is at the heart of the scientific method and is routinely used in scholarly economics empirical research.

A study on predominance criteria in antitrust class actions

A study on predominance criteria in antitrust class actions

Antitrust Arbitration and Illinois Brick

I. INTRODUCTIONThe proper role of private enforcement in antitrust law has long been debated. One of the most significant judicial reforms of antitrust law associated with the Chicago School was the Supreme Court's decision to limit standing to direct purchasers in Illinois Brick Co. v. Illinois.1 Although that decision has proven controversial, the Illinois Brick doctrine has endured as a principle of federal antitrust law for nearly 40 years.Whatever the merits of the Illinois Brick decision in 1977, subsequent developments have undermined its rationale. In particular, the Supreme Court's 2013 decision in American Express Co. v. Italian Colors Restaurant2 undercuts the fundamental premises of the Illinois Brick doctrine. The Illinois Brick majority assumed that direct purchasers were the most motivated and the best situated to enforce antitrust laws that resulted in supracompetitive prices. But Italian Colors makes it very difficult for direct purchasers to enforce antitrust laws in a wide variety of circumstances, because the decision allows potential antitrust defendants to use arbitration clauses in standard-form contracts to ban antitrust class actions and require individual arbitration of antitrust disputes. The result is to deprive overcharged direct purchasers of the tools antitrust law offers for effective enforcement-class action status, a lengthy statute of limitations, treble damages, and, if successful, attorneys' fees.3 Without effective opportunities for enforcement by direct purchasers, the rationale for excluding indirect purchasers from bringing antitrust claims collapses.Antitrust law is common law and is often based on policy arguments. The decision in Illinois Brick is no exception. The Court based its reasoning on its assessment of the ability of direct purchasers to enforce antitrust laws effectively. After Italian Colors, that is no longer the case. Old doctrines must give way in light of legal developments (including later judicial opinions) that change the underlying environments and undermine the original policy arguments upon which the old common law is based. By eliminating most antitrust enforcement by direct purchasers, Italian Colors has paved the way for reconsideration of Illinois Brick.4II. ILLINOIS BRICK: ITS HOLDING AND RATIONALECourts have long been suspicious of competitors as antitrust plaintiffs,5 in part because competitor interests do not necessarily align well with consumer interests. For example, competitors might object to conduct that benefits consumers, such as aggressive price competition.6 Beginning in the 1970s, courts began creating limits on competitor standing in an effort to tackle that disconnect.7Consumers, by contrast, are, in some sense, the perfect antitrust plaintiffs. They are the intended beneficiaries of the competitive markets that antitrust policy seeks to encourage; consumers are injured by cartels and other anticompetitive conduct, but benefit from aggressive competition on the merits. Accordingly, courts have long permitted purchasers to sue to recover overcharges that result from cartels,8 though some courts have (incorrectly) questioned customers' standing to enforce the antitrust laws.9In Illinois Brick, the plaintiffs were state and local governments who sought recovery for overcharges that resulted from a cartel that fixed the prices of concrete blocks. But the governments did not buy the blocks directly from the defendants. Rather, construction contractors bought the blocks and used them to build buildings, which the governments later bought.10 The governments were indirect purchasers; their injury came from the fact that the contractors, who paid an artificially high price, passed that higher price on to them.11The Supreme Court held that indirect purchasers could not recover the overcharges that direct purchasers passed on to them.12 Illinois Brick was decided on two basic policy considerations. …

The Fall and Rise of the Antitrust Class Action

Antitrust class actions have narrowed significantly in the United States in recent years but still remain robust compared to aggregate litigation in the rest of the world. While the Supreme Court continues to narrow the doorway to class actions, the rest of the world is increasingly interested in creating new mechanisms for aggregate litigation to better support effective private damage litigation in competition cases, and in particular the large number of small claims cases that led to the class action boom in the United States in the first place. The challenge for the rest of the world will be to fashion new remedies consistent with the history, culture, substantive law, and procedural rules of their legal traditions rather than either adopt or reject the system that has evolved in the United States. This article provides an overview of the increasingly stringent requirements for antitrust class actions in the United States and provides a representative survey of the nascent movement toward collective actions abroad where competition cases have been at the forefront of the debate. Part I discusses the standards for class certification under Rule 23 and recent Supreme Court cases tightening those standards. Part II analyzes a separate line of Supreme Court cases which effectively eliminates class actions altogether when parties have entered into a contract requiring arbitration rather than litigation and further requires individual rather than collective arbitration proceedings.Part III continues with a survey of recent developments in the opposite direction outside the United States. This section examines ongoing changes in the EU, UK, other EU Member States, Mexico, and Canada to empower consumers and business with small claims in competition cases by creating collection action mechanisms of different types. This section also briefly discusses the decision of the EU to simply prohibit the type of forced arbitration clauses that the U.S. Supreme actively encourages. Part IV analyzes the critical aspect of whether foreign class actions will thrive or whither on the vine – the need for an opt-out mechanism rather than the opt-in mechanism favored in most jurisdictions outside the U.S. Finally, I conclude by pointing out the irony of the rest of the world struggling to figure out how best to empower plaintiffs to bring appropriate class action type proceedings while the U.S. Supreme Court remains principally concerned with how to restrain or eliminate the very same type of action.

Neither Rock Nor Hard Place? The Foreign Sovereign Compulsion Defence in Antitrust Litigation

The increased contravention of host state’s antitrust laws poses enormous challenges for the global anti-competition framework, which lacks legally binding agreements at a multilateral level. As a valid sui generis defence in cross-border antitrust cases, the doctrine of foreign sovereign compulsion shields a firm from liability in transnational antitrust regimes. However, it largely depends upon whether the defendant has been genuinely subjected to a rock or hard place scenario while complying with laws and regulations in both host and home jurisdictions. This issue is scrutinized through analysis of a recent antitrust class action in the USA against Chinese Vitamin C manufacturers, and the subsequent contentious issue whether a court should give dispositive weight to the Chinese government’s amicus brief that it has compelled the conduct of defendants. In such a legally challenging scenario, it is argued that the controversy terra incognita be addressed through coherent coordination between states apart from the ex-post litigation.

Indirect Purchaser Suits after the Class Action Fairness Act

Until 2005, indirect purchaser class actions were filed and remained almost exclusively in state courts while direct purchaser class actions alleging the same core conduct proceeded in federal court. Because federal courts usually lacked subject matter jurisdiction over the state-law claims, and state courts lacked subject matter jurisdiction over the federal claims, no single court could hear all of the cases. In earlier studies of indirect purchaser litigation, I found that this dispersed and inefficient system provided little benefit to consumers who actually paid an overcharge. First, many courts declined to certify consumer suits as class actions under the standards of the applicable rules of civil procedure, because it was impractical to prove impact on consumers on a class-wide basis; individual issues of impact, in other words, predominated over class issues. Second, even courts that did certify classes found it impractical to distribute most of the settlement funds to consumers who actually suffered harm, instead relying on dubious coupon and cy pres distributions. Indirect purchaser suits provided no added deterrence, because direct purchasers almost always sued for the full overcharge. In 2005, Congress enacted the Class Action Fairness Act in an effort to limit the obvious costs of duplicative state-law class actions. That statute’s most important innovation was to relax the criteria for federal diversity jurisdiction in ways that permit federal courts to hear most antitrust class actions brought under state law. State-law indirect purchaser class actions are now almost always either filed in federal court by plaintiffs or removed there by defendants. Once pending in federal district courts, class actions under numerous states’ laws are often consolidated for pretrial proceedings along with direct purchaser actions based on the same conduct. Under this mechanism, federal courts applying primarily federal standards determine the suitability of the putative classes representing all of the multilayer interests in the case for class treatment. In this Article, I consider whether these procedural and jurisdictional changes have improved the performance of indirect purchaser class action litigation in the United States. I examine all of the reported decisions on class certification since 2005, comparing the results in direct and indirect purchaser classes where possible. I find that the federal courts have certified these class actions at roughly the same rate as state courts in the earlier periods. In virtually all of the controversies, both direct and indirect purchasers sued; courts certified almost all of the direct purchaser classes, but only slightly more than half of the indirect purchaser classes. In the indirect purchaser decisions, the grounds for certification or refusing to certify were essentially the same as the state courts applied in the earlier periods. Although the consolidation of multiple state-law class actions in federal court for pretrial proceedings has undoubtedly reduced the direct costs of private enforcement, the cases give little reason to think that substantially more consumers are receiving meaningful compensation as a result of the Class Action Fairness Act.

Antitrust Class Actions in the European Union: Latest Developments and the Need for a Uniform Regime

The evolution of class actions continues to feature prominently on Europe's competition law landscape. At European Union (EU) level, the European Commission (Commission) has supported private enforcement vocally, going as far as drafting legislation to mandate an EU-wide class action mechanism although withdrawing it from the agenda at the last minute. Nonetheless, the Commission is preparing a new round of discussions in order to finalise the ongoing debate on the harmonisation of class action rules in Europe. In the meantime, certain EU Member States such as Italy have implemented their own national class action legislation.

POUR UNE ACTION COLLECTIVE EUROPÉENNE DANS LE DROIT DE LA CONCURRENCE

Depuis une quinzaine d’années, plusieurs pays européens ont récemment adopté ou mis à jour une législation autorisant les actions de groupe. L’objet actuel de nombreux débats est l’idée d’une action collective dans l’Union européenne pour les victimes d’une violation relative aux droits de la concurrence. Dans l’article suivant, les auteurs s’occupent de cette discussion, qui est entrée dans un stade final avec le Livre Blanc sur les actions en dommage et intérêts pour infraction aux règles communautaires sur les ententes et les abus de position dominante, publié en 2008 par la Commission européenne. Dans la première partie de ce texte, les auteurs étudient le caractère essentiel d’une action collective européenne en droit de la concurrence et la prudence qui doit nécessairement y être attachée. Ils montrent que la mise en place d’une telle action collective n’est pas seulement désirable mais nécessaire, et que les mécanismes actuellement disponibles ne sont pas suffisants. Dans la deuxième partie, les auteurs développent un mécanisme établissant l’action collective, qui est adaptée aux besoins et aux traditions juridiques spécifiques de l’Europe. Ce mécanisme combine les systèmes opt-out et opt-in en utilisant le montant des préjudices individuels comme critère de différenciation. Le but de cette proposition n’est pas seulement de répondre aux problèmes de l’abus de la voie contentieuse et du « principal-agent », mais aussi de maintenir l’effet dissuasif à un niveau optimal pour démotiver les possibles contrevenants.

Review of Recent Antitrust Books (2009-2010)

The following is a compilation of book reviews and notices of notable books I have prepared over the past two years as U.S. Book Review editor for the World Competition Law & Economics Review and/or for the web site for the Institute for Consumer Antitrust Studies at Loyola University Chicago. All are short, none are deeply analytical. A couple of the books discussed were published in 2008, but I did not get around to reviewing them until at least 2009. Review of notable antitrust books from 2008-2008 can be found at http://ssrn.com/abstract=1235662. Each of the current reviews highlight work that addresses different needs of the academic and practicing bar, and even includes a book or two of general interest to antitrust professionals. This is not intended as a comprehensive list of publications in the field, but rather those works that crossed my desk and appealed to me enough to review. The reviews are arranged by the date of publication of the review and include: 1) ABA Section of Antitrust Law, Proof of Conspiracy Under Federal Laws (2010). 2) ABA Section of Antitrust Law, Antitrust class action Handbook (2010). 3) ABA Section of Antitrust Law, Competition as Public Policy (2010). 4) David Gerber, Global Competition: Law, markets and Globalization (2010). 5) Lloyd Constantine, Priceless: The Case that Brought Down the Visa/Mastercard Bank Cartel (Kaplan 2009). 6) Michael A. Carrier, Innovation for the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law (Oxford University Press 2009). 7) ABA Section of Antitrust Law, issues in Competition Law ans Policy (2008), 8) Gary L. Reback, Free the Market! Why only the Government can Keep the Marketplace Competitive (Portfolio Books 2009). 9) ABA Section of Antitrust Law, Antitrust and Associations Handbook (2009). 10) How the Chicago School Overshot the Mark: The Effect of Conservative Economic Analysis on U.S. Antitrust (Robert Pitofsky ed. Oxford University Press 2008). 11) E. Thomas Sullivan & Jeffrey L. Harrison, Understanding Antitrust Law and its Economic Implications, (LexisNexis 2009).

Indirect Purchaser Class Action Settlements

Consumers and business entities at the bottom of a chain of distribution - i.e., those who cannot “pass on” overcharges - often bear the full financial brunt of antitcompetitive activity. Unless they purchased goods or services directly from the alleged antitrust violators, however, they are “indirect purchasers” who lack standing to bring suit for damages under the federal antitrust laws. Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). In California v. ARC America Corp., 490 U.S. 93 (1989), the Supreme Court held that Illinois Brick interpreted federal antitrust law only and states could allow indirect purchasers to seek damages under state law. Several states and the District of Columbia reaffirmed an indirect purchaser’s right to recover damages by passing “Illinois Brick repealer” statutes that expressly allow for indirect purchaser actions. Even where no “repealer” statute has been enacted, some state courts have interpreted their state’s antitrust laws to allow for indirect purchaser standing. See, e.g., Comes v. Microsoft Corp., 646 N.W.2d 440 (Iowa 2002); Bunker's Glass Co. v. Pilkington PLC, 75 P.3d 99 (Ariz. 2003). State law indirect purchaser actions are an important component of antitrust enforcement, especially in cases where direct purchasers’ continuing business relationship with the antitrust violators blunts any incentive to bring suit. Moreover, utilizing class action procedures, indirect purchaser class actions can provide redress to the targeted victims of unlawful conduct.The purpose of this paper is to compile a comprehensive list of indirect purchaser class action settlements, including the amount of money (or other consideration) recovered for classes. This project began in 2005 at the request of counsel for the Antitrust Modernization Commission and was intended to respond to the contentions made by corporate interests that indirect purchaser antitrust actions benefited only plaintiffs’ attorneys and resulted in, at best, cy pres recoveries for the indirect benefit of the class members. Accordingly, this listing attempts to include both the method of distribution of settlement proceeds and the amount of attorneys’ fees awarded. While cy pres distributions are sometimes necessary, many cases (especially in the area of pharmaceuticals) provide for cash distributions to class members. The settlements listed below have recovered an aggregate value $4,363,237,265 since the mid-1990s. This total consists of $2,069,252,500 in cash, $163,464,000 worth of product (i.e., infant formula and prescription drugs) and $2,130,520,765 in Microsoft vouchers.One development since 2005 is worthy of comment: the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (2005), which became effective February 18, 2005, greatly expanded federal jurisdiction over state law class actions. As class actions are the primary avenue for assertion of indirect purchaser antitrust claims, opportunities for state courts to interpret their own states’ antitrust statutes will likely be few and far between. This development may impede - or at least freeze in place - judicial development of indirect purchaser antitrust law.This list was compiled with assistance from attorneys Bernard Persky (Labaton Sucharow LLP) and Daniel Gustafson (Gustafson and Gluek PLLC) and includes: (1) cases in which one or more of our firms appeared as counsel; (2) cases that we have discerned from public sources (such as the Internet and legal research databases); and (3) information received from other practitioners. Where possible, we have sorted state court cases according to common underlying facts. While the information on the list is accurate to the best of our knowledge, information and belief, we are certain that we have not captured many cases, especially in California which has a long-standing history of indirect purchaser antitrust class actions. See, e.g., B.W.I. Custom Kitchen v. Owens-Illinois, Inc., 191 Cal. App. 3d 1341 (Cal. Ct. App. 1987).