In a recent decision, Pro Sys Consultants Ltd. v. Microsoft Corporation, the Supreme Court of Canada (SCC) held that indirect purchasers have standing to sue for overcharges resulting from a price-fixing conspiracy. Consistent with its rulings in other cases, the SCC held that the risk of double or multiple recoveries in actions brought by both direct and indirect purchasers could be managed by courts. However, the SCC also noted that in bringing their action, the indirect purchasers assume the burden of establishing that they have suffered a loss.
This and other rulings of the SCC challenge recent trends in class certification in the United States, where courts have been raising the standards for both direct and indirect purchaser plaintiffs. For example, in Wal-Mart Stores, Inc. v. Dukes and Comcast Corp. v. Behrend, the US Supreme Court emphasized the need for rigorous analysis in the class certification phase.
The divergence in standards makes indirect purchaser class action suits in the US and Canada a complicated and provocative area of law and economics and raises issues of managing cross-border indirect purchaser cases. Pro-Sys also highlights the difficulties in calculating damages and the apportionment of those damages among the different levels of the supply chain.
These and other issues will be addressed during this round-table discussion. It will be led by leading antitrust litigators from Canada and the United States and by competition economists, all of whom have extensive practice in indirect purchaser cases.