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Private Enforcement

Death by Daubert: The Continued Attack on Private Antitrust

Christine P. Bartholomew, Cardozo Law Review, Forthcoming 2014.

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In 2011, with five words of dicta, the Supreme Court opened Pandora’s box for private antitrust enforcement. By suggesting trial courts must evaluate the admissibility of expert testimony at class certification, the Court placed a significant obstacle in the path of antitrust class actions. Following the Supreme Court’s lead, most courts now permit parties to bring expert challenges far earlier than the traditional summary judgment or pretrial timing. Premature rejection of expert testimony dooms budding private antitrust suits — cases that play an essential role in modern antitrust enforcement. The dangers for private antitrust plaintiffs are compounded by the Court’s opaque pronouncements on how to assess expert testimony. Confusion over how to evaluate antitrust economic experts, both substantively and procedurally, allows courts to use their gate-keeping power to undermine private antitrust enforcement.

Despite a large body of scholarship on Daubert (the test for expert admissibility), little has been written on its unique intersection with antitrust class actions. This Article fills that void by exploring how Daubert analysis at class certification hamstrings antitrust enforcement. The Article begins by discussing how judicial evaluation of expert testimony has evolved, with a particular eye to how courts address antitrust economic expert testimony at class certification. It then explains why this new barrier potentially places an impassible, unjustified roadblock in private antitrust enforcement’s path.

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