Distribution, Competition, and Antitrust / IP Law

Plaintiffs’ Antitrust Experts Are Dauberted More Often

According to a new study by the Law & Economics Center at George Mason University (as reported in MLex), 59% of the time, antitrust defendants succeeded on some aspect of their Daubert motions in class action cases, while antitrust plaintiffs won their challenges only 38% of the time.

These rates compare with 50% for defendants across case types and 40% for plaintiffs across case types.

The difference between the figures for plaintiffs is quite small and may be statistical noise.  But it does appear that antitrust defendants are more successful at Dauberting plaintiffs’ experts than are defendants overall.

This is a somewhat surprising and interesting finding, and I wonder what causes the difference.  It seems to me the possibilities are:

  • There is some institutional bias against antitrust plaintiffs as opposed to other plaintiffs.  This seems unlikely;
  • Either the class action rules, the antitrust laws, or both just make it harder for the typical antitrust plaintiff than the typical plaintiff; or
  • Antitrust plaintiffs’ experts do a worse job on average than the typical antitrust defendant’s expert — and also do worse on average than the typical plaintiff’s expert.

I lean to the third possibility, based on anecdotal evidence and speculation.

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About Howard Ullman

Antitrust, competition, and IP law enthusiast.

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