In the lore of antitrust class action litigation, indirect purchaser cases — as they say in East Texas — suck hind tit.
Why? Because they usually get into federal court on the hypothesis that the indirect purchasers need protection against future predations of the antitrust violators. They then harness to the injunctive relief claim a bunch of claims for damages under a variety of state statutes that permit — unlike the Sherman Act — recovery of damages by indirect purchasers. Illinois Brick, you know.
[In case you actually can’t tell an Illinois Brick from a quarry tile, the case held that only people who bought directly from a price-fixer have standing under the Sherman Act to recover damages. The Supreme Court decision, Illinois Brick v. Illinois, 431 U.S. 720 (1977), led several states to enact "repealer" statutes that conferred standing on indirect purchasers. These legslative actions in turn produced a torrent of state indirect purchaser cases that paralleled federal direct purchaser litigation. And some of the indirecters often sought a federal forum by alleging fear that, without an injunction, the price-fixers would keep on fixing prices. Which brings Blawgletter to the case we want to alert you to.]
In In re New Motor Vehicles Canadian Export Antitrust Litig., No. 07-2257 (1st Cir. Mar. 28, 2008), the unanimous panel threw frigid water on the notion that federal jurisdiction exists because indirect buyers need injunctive relief. Their Honors doubted that the relevant conditions of the past would recur. They also cast asparagus on "novel" expert opinions concerning whether the class of plaintiffs suffered actual harm as a result of a conspiracy to restrain trade. Piling on too many assumptions or skipping over gaps in the chain of causation might prove problematic, the court suggested.
We urge you antitrust addicts out there to read the opinion. Especially those of you who often represent indirect purchasers in federal court. Because it signals, at least in the First Circuit, a curtailment of opportunities for tagging along in federal court with direct purchaser litigation.