“If you’re going to allow claims by umbrella purchasers, these class actions are now going to have to get into what the prices of those third-party manufacturers would have been in the absence of the conspiracy, how they made their pricing decisions, what their volume of sales were — all of that. And those are complicated enough questions in existing class actions when everyone is a party to the proceeding,” says Veel, who is not involved in the case.
“It gets a lot more complicated when all of a sudden you’ve got non-parties that no one has an automatic right of discovery against.”
As for the claims concerning umbrella purchasers, Veel says he would not be surprised if the issue receives a lot more attention from appellate courts and eventually the Supreme Court.
“This is one of those issues that’s coming up in virtually every competition certification decision as of late, and it’s one that’s going to need to be resolved,” he says.