The role of experts in antitrust class certification

expert witnesses in antitrustAnalysis Group principal George Kosicki, vice president Tamar Sisitsky and managing principal Pierre Cremieux co-authored ‘The Role of Experts in Antitrust Class Certification’, which was published by The American Bar Association in the Antitrust Class Action Handbook (2010). Analysis Group’s consultants offer expertise in economics, finances and strategy.

The authors set the stage for their research by citing research that finds nearly 80 percent of civil trials involve some form of expert testimony. Their particular legal focus, antitrust cases, involve complex economic issues which require economic expert guidance, in the form of consultation, and testimony. The article argues the importance of economic analysis and testimony being reliable, able to be understood by jurors, and meeting the standards set by Daubert v Merrell Dow Pharms.

The testifying expert’s role in antitrust class actions may begin at an early stage, before class certification, or later in regard to liability and damages at trial. An economic expert may “assess whether the evidence and allegations support a finding that each member of the putative class would have been impacted by the alleged antitrust violation, or whether the overcharge pass through is fundamentally similar or different across putative class members.”

When determining if members of a putative class are homogenous members and impacted in similar or different ways, an economist will utilize industry information, transaction-level data, confer with other experts, and perform independent research and statistical analyses.

The authors dedicate a section of the article to finding the right expert. They suggest this begins with an analysis of a potential expert’s curriculum vitae. Specialized knowledge that relevant to a case demonstrate an experts ability to provide an ‘objective opinion’. On the other end of the spectrum, if an expert’s testimony is found to be questionable, having marginal qualifications could increase the chances of that expert’s testimony being excluded.

In antitrust cases, the communication skills of an expert are especially important because the methodology, jargon, and methodology will be unfamiliar to the jury and likely to the judge. The ability to communicate is only helpful if the expert is able to provide sound quantitative evidence. This involves an expert being able to understand the strengths and weaknesses of the data available in a case, and having a strong knowledge of theory, mathematical models and statistics.

If an attorney knows that a statistical analysis will be relevant in a case, it is important to retain an economic expert with the qualifications and experience to wear both hats. Many experts fit this bill, just a few are Chetan Sanghvi, Ph.D. of NERA, Dwight Steward, Ph.D. of EmployStats, and the antitrust experts at Edgeworth Economics.

In an initial interview or meeting with a potential expert, an attorney may learn if previous positions taken by the expert may conflict with the expected position for the specific case. One will also get a sense of the skill an expert has explaining complex economic concepts.

When choosing an economic expert for a particular case, an attorney should give thought to a number of special considerations. Does the case warrant separate experts for legal strategy and class certification? Would an industry expert compliment (or even replace) an economic expert’s testimony?

The article makes the distinction between testifying and consulting experts; one notable difference being if they are subject to discovery. While a consulting expert in unashamedly aligned with the point of view of the party that hired him or her, a testifying expert is generally more believable if they appear to be objective in their analysis.

Expert reports are required by the courts, described as a signed and “written report which, along with specific criteria concerning compensation and prior testimony, must also set out a complete statement of his or her opinions to be expressed along with the corresponding reasons for those opinions.” An expert must also disclose the data or information considered in the analysis,

During deposition, an expert testifies to his or her opinion, and discusses hypothetical questions and scenarios. This is of course different from the role of many (non-expert) witnesses. During a class certification hearing and trial, an economic expert answers questions he or she has prepared for in direct examination, and then answers questions from the opposing attorney(s) during cross examination.

To read more from Analysis Group, explore the following articles:

Challenges in RIF Analyses’ by Jonathan C. Wilson and John M. Farrell of Haynes and Boone LLP.

Risk and Economic Damages: Theoretical and Practical Issues’ by Brian Brinig of Brinig & Co. and Jeffrey Kinrich of Analysis Group.

Pros and Cons of Statistical Sampling’ by Peter Simon, Analysis Group.


J.R. Randall

J.R. Randall is an economist who resides in the Bay Area. He focuses his interest on range of economic topics. He has interest in deep sea fishing and art.