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SYNTHESIS
Keynote Speech
Judge Loretta Preska (US District Court for the Southern District of New York) explained that courts around the world have been asked and will be asked to consider important legal questions that will have a significant impact on private antitrust enforcement, and she focused on a few of those issues. She mentioned the blockbuster Merricks v. Mastercard case before the Supreme Court of the United Kingdom. She pointed out two questions that the Supreme Court would need to decide: (1) what the legal test applies for the purpose of obtaining a CPO under the 1998 Competition Act, including what a class must show to offer a realistic prospect of establishing loss on a class-wide basis; and (2) whether it is appropriate to consider the distribution of damages among the plaintiffs. Judge Preska then transitioned to the American class-action experience. She identified that although UK and US litigation differ in many respects, some of the same problems in Mastercard also cropped up in American antitrust class actions. She focused especially on the puzzle of uninjured class members and Rule 23’s predominance requirement. She discussed several Court of Appeals cases—such as the Asacol Antitrust Litigation, Rail Freight Surcharge Antitrust Litigation, and Nexium Antitrust Litigation—and contrasted them with the approaches employed by the UK Competition Appeal Tribunal and the Court of Appeal. Next, Judge Preska offered some advice to the attendees regarding the use of statistical and representative evidence and the critical role experts play in class certification. She stressed the importance of being able to explain the usefulness of such evidence, while also acknowledging and addressing any shortcomings. Judge Preska also noted the significance of both the output of any statistical analysis as well as the methodology employed to produce that output. Finally, Judge Preska advised that class certification is, at bottom, a balancing act, and noted the importance of striking an appropriate balance between just compensation for victims and respect for defendants’ due process rights.
