IN RE CAPACITORS ANTITRUST LITIGATION

Background

This omnibus order addresses several motions under Daubert v. Merrell Dow Pharmaceuticals, Inc. and Federal Rule of Evidence 702. Those rules govern whether expert testimony is sufficiently relevant, reliable, and helpful to the jury. The order also addresses defendants’ motion to decertify the direct-purchaser plaintiff class.

Janusz A. Ordover

The direct-purchaser plaintiffs moved to exclude part of Janusz A. Ordover’s proposed testimony. Ordover planned to testify that the price-fixing episodes to which NCC pleaded guilty were unlikely to have had broad effects because they involved a narrow set of products or customers.

The court found that this opinion relied on a characterization inconsistent with NCC’s plea agreement. It therefore concluded that the opinion was unreliable and irrelevant and granted the motion to exclude it. Ordover was not barred from testifying about the underlying features of the capacitors marketplace, subject to additional objections at trial.

Spencer L. Simons

The direct-purchaser class and indirect-purchaser plaintiffs moved to exclude part of Spencer L. Simons’s proposed testimony. The court found that Simons lacked specialized knowledge to offer opinions about collusion, antitrust violations, or antitrust impact. It excluded those opinions under Rules 702, 402, and 403, because they were not sufficiently reliable and could confuse or mislead the jury.

The court allowed Simons to testify about technical and commercial aspects of the capacitors industry based on his experience and observations, including opinions about capacitor substitutability and market and product analysis, subject to establishing an adequate foundation at trial. The motion was granted in part.

Dr. James T. McClave

Defendants moved to exclude Dr. James T. McClave’s proposed testimony, including his regression analysis concerning antitrust impact. The court denied the motion. It held that defendants’ challenges to the variables McClave used, the marketplace facts he considered, and his acceptance of the conspiracy period supplied by class counsel went to the weight of his testimony and possible cross-examination, rather than its admissibility.

The court also relied on its earlier findings and on a prior proceeding in which competing experts discussed their analyses. It concluded that McClave used a generally accepted method, that his work was reliable and relevant, and that disagreements between the experts reflected legitimate differences within economic analysis rather than unreliable methodology.

Dr. Hal J. Singer

Certain defendants moved to exclude Dr. Hal J. Singer’s testimony. The court granted in part the motion. It excluded Singer’s qualitative opinions based on criteria attributed to antitrust agencies, finding that those opinions did not satisfy the relevance and reliability requirements of Rule 702 and Daubert.

The court found that Singer’s qualitative analysis based on criteria recognized by economists in cartel investigations was sufficiently reliable and relevant, subject to proof of an adequate foundation at trial. It also denied the challenge to Singer’s quantitative analysis for the same reasons it denied the motion concerning McClave’s econometric analysis.

Decertification of the Direct-Purchaser Class

Certain defendants moved to decertify the direct-purchaser plaintiff class. They argued that McClave had made a new and fatal admission that he could not identify antitrust injury for 40 percent of the class.

The court found that this was not a fair characterization of McClave’s statements. The court noted that the affected class members collectively accounted for one percent of class revenue and that defendants’ own expert had stated that the smallest customers were most likely to have been affected by a conspiracy. The motion to decertify was denied. The court expressly stated that this denial was without prejudice to revisiting the scope or certification of the class for other reasons.

Disposition

The court granted the direct-purchaser plaintiffs’ motion concerning Ordover; granted in part the motion concerning Simons; denied defendants’ motion concerning McClave; granted in part certain defendants’ motion concerning Singer; and denied defendants’ motion to decertify the direct-purchaser class. The order addressed evidence and class status rather than deciding the underlying antitrust claims.