Class Actions, by Federated Press, Fall, 2010
Introduction
Until April 2009, the prospect for competition class actions in Canada, whether those class actions were brought pursuant to the provisions of the Competition Act,1 and/or for related tort claims,2 seemed dire, if not completely foreclosed. Save for one exception, every single attempt to certify a competitionrelated class action had failed.3 It seemed reasonable to conclude that it would be impossible in Canada to ever have a broadly framed competition-related class action certified. Between April and November 2009, the landscape and potential for competitionrelated class actions in Canada completely changed. It is fair to conclude that the pendulum has swung in the opposite direction. Based on three recent decisions4, which are discussed below, it now seems possible to certify broadly framed competition-related class actions in Canada. In a very short period of time, there has been a significant and fundamental change in the law relating to the certification of competition-related class actions.
However, like most revolutions, this one may have gone too far. Although it is arguable that earlier decisions were too restrictive in the requirements set out for certifying competition-related class actions, the recent decisions appear to make the certification of competition-related class actions too easy. These recent decisions have potentially created class actions that will be unmanageable and for which proof of damages may be, from a practical perspective, difficult. The three recent decisions are being appealed to higher courts, meaning there is the opportunity for further clarification.5 It is possible that the law in this area will not be settled until the Supreme Court of Canada hears one or more of these cases.
From a larger perspective, these recent decisions, particularly in conjunction with the earlier different decisions, demonstrate the difficulty that courts in Canada have in dealing with the economic issues implicated in competition class actions. All of these class actions claim economic harm which requires complicated economic theories and intricate statistical calculations in order to determine damages. This has been a crucial issue in all competition-related class actions to date, whether certification was granted or denied. Arguably, the recent decisions certifying competition class actions are more consistent with the class action legislation under which certification was granted. However, these decisions are not necessarily consistent with sound economic theory and this tension between the law of class action certification and economics will likely continue to cause difficulties.
The Economic Theory
In order to understand the analysis of the case law that follows, it is important to have a basic grasp of the economic theory that informs competition class actions.6 The essential allegation in every case is that manufacturers or suppliers of a product or service have conducted themselves in a manner, in breach of the Act,7 with the result that users of the product or service pay higher prices than they would have without the anticompetitive conduct in question. In most cases, this will involve a conspiracy among different manufacturers or suppliers which has the effect of raising prices.8
Theoretically, when this conduct occurs, those who purchase directly from the manufacturer or supplier who engaged in the anticompetitive conduct should suffer harm. Normally, this harm can be measured by the difference between the price actually paid by the purchaser and the price that the purchaser would have paid but for the anti-competitive conduct. Practically, this can be extremely complicated to calculate. In order to determine what harm has been suffered by purchasers, it is necessary to first define the market, an issue which itself can be very complicated and has been the subject of much litigation in Canada.9 A number of factors must be examined to ascertain the relevant market and the effect the anti-competitive conduct had on purchasers.10 Once the market is defined, and the relevant factors are identified, a model or methodology must be created through which raw data and statistical analysis will result in a calculation of the harm suffered, on a class basis, and possibly on an individual basis. Several assumptions will likely be required to make the model work, which will affect its accuracy.
The issue of harm is further complicated by the fact that many of the products or services that may be affected by anti-competitive conduct are sold in a distribution chain or are inputs into other products or services that are sold to other purchasers. As a result, the effects of the anti-competitive conduct may be passed on from those who purchase directly from the alleged wrongdoer to those who ultimately use the product or service. This means direct purchasers who do not use the produce directly, but employ it as an input or sell it further down the distribution chain, may not suffer any harm. The extent to which the harm, or price increases, are passed on to indirect or secondary purchasers depends on the structure of the market and the nature of demand and supply. Calculating the extent to which harm has been passed on to indirect purchasers will also likely be complicated, and must be accounted for in any model or methodology that measures harm.
In a situation where there are a discreet and readily identifiable number of direct purchasers from one or a small group of identified suppliers or manufacturers, where the market is fairly easy to ascertain and the product or service in question has few or one use, it will be relatively simple to ascertain the harm suffered by purchasers. A class action involving this type of situation should be manageable and will likely succeed if the anticompetitive conduct can be established.
Conversely, where the product or service in question that is affected by the anticompetitive conduct has a variety of uses (meaning there may be numerous markets in which it is used), the product or service is used as an input and there are numerous direct and indirect purchasers of the product or service, the analysis of harm will be extremely complicated. It may be difficult to determine whether any purchaser suffered any harm. It is likely in these circumstances that some purchasers will have suffered no harm, while most other purchasers will have suffered very modest amounts of harm.
All competition-related class actions require, as an element of proving liability, a demonstration that the plaintiffs have suffered harm.11 Therefore, it is a critical component of any competition class action that the plaintiffs propose a workable methodology to determine harm on a class-wide basis. If harm cannot be determined on a class-wide basis, it is likely that individual issues will overwhelm any common issues in the class action and the court will be reluctant to grant certification. However, the certification stage of class actions occurs prior to discovery, meaning it is likely in most cases that the plaintiffs will not have the evidence that is required to determine whether harm can be established on a classwide basis. This creates a significant practical problem for plaintiffs if courts require plaintiffs to prove at the certification stage that harm was suffered or can be calculated on a class-wide basis, as opposed to merely proposing a reasonable methodology by which such harm can be calculated or proved.
The Old Regime: Certification Seems Impossible
The starting place for certification of competition-related class actions in Canada is Chadha v. Bayer Inc.12 In this case, the Ontario Court of Appeal upheld the Ontario Divisional Court's reversal of the motion judge's decision to certify a competitionrelated class action. This action involved price-fixing in the market for iron oxide, which is a pigment used in concrete bricks. The action was brought on behalf of indirect purchasers, primarily those who had purchased homes that contained bricks with the iron oxide that had been subject to the pricefixing conspiracy.
Chadha v. Bayer involved a complicated and difficult competition class action. It would have been difficult to prove the harm suffered to indirect purchasers. The increase in the price of the bricks used in their homes would have been an extremely small component of the overall purchase price of those homes, assuming there was any pass-through of increased costs from direct to indirect purchasers. Moreover, this issue was further complicated due to the significant number of potential plaintiffs and lengthy period over which the conspiracy was alleged. The Court of Appeal agreed with the Divisional Court that damages, a necessary component of the cause of action, could not be proved on a class-wide basis. This determination was informed both by the necessity of proving damages in order to establish the cause of action and the fact that the plaintiffs had not provided sufficient evidence of a method to calculate damages on a class-wide basis. As a result, certification was not appropriate.13
Chadha v. Bayer can be interpreted, and has been interpreted, to set a very high bar for certification of any competition class action, particularly those involving indirect purchasers. 14 However, it is important to note that the Court of Appeal did not foreclose the possibility of certification of a competition class action, even one involving indirect purchasers:
In my view, the question of whether and how consumers will be able to use class actions to obtain relief from price-fixing by suppliers and manufacturers remains an open one in this jurisdiction. The appellants were unsuccessful in this case because they did not present the evidentiary basis for a certifying court to be satisfied that loss as a component of liability could be proved on a class-wide basis. Whether such evidence could have been obtained is not clear.15
It is important not to read Chadha v. Bayer too restrictively. The Court of Appeal left open the possibility that a competition class action, even for indirect purchasers, could be certified if the plaintiffs could adduce satisfactory evidence that damages could be calculated on a class-wide basis.
Following Chadha v. Bayer, it was difficult to obtain certification of competition class actions in Canada. In Price v. Panasonic Canada Inc.,16 certification was refused for a prospective class action alleging resale price maintenance of audio-visual products contrary to competition laws.17 This was an extremely unwieldy class action. There were 20 million purchasers in the potential class and these potential plaintiffs all had very different claims. As in Chadha v. Bayer, the Court determined that the assessment of damages was not a common issue and certification should be denied.18
Two similar class actions involving a conspiracy between Toyota and its dealers to restrict competition and increase the price of vehicles were also unsuccessful. In those cases, courts in Quebec and British Columbia found that the individual issues overwhelmed any common class issues. Moreover, in both cases, the courts found that the evidence of harm presented by the plaintiffs was lacking.19
The decisions at first instance in 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corporation20 and Pro-Sys Consultants Ltd. v. Infineon Technologies AG,21 refusing to certify competition class actions involving price fixing, reinforced the difficulty of certifying competition class actions. In both of these cases, the motion judges refused certification on the basis that harm, which was a fundamental component to establish liability, could not be established on a class-wide basis.
Prior to April 2009, the only exception to this list of failed attempts to certify competition class actions was Axiom Plastics Inc. v. E.I. DuPont Canada Co.22 This action involved the fixing of prices of engineering resins provided for use in automotive parts. The prospective class consisted of direct and indirect purchasers. The motion judge certified the class action, but significantly narrowed the class of plaintiffs. The action was only certified for a specific class of direct purchasers who were required to use the product over which there was the alleged conspiracy.
The importance of Axiom Plastics lies in the motion judge's decision to narrow the class of plaintiffs to those who were most likely to have suffered harm as a result of the alleged conspiracy. The class of plaintiffs was limited to those who had purchased directly from the alleged conspirators and who were required to use the product that was the subject of the conspiracy. This is the type of situation where it is likely the class action is being certified on behalf of plaintiffs who have actually suffered harm. This narrowing of the class would likely make the class action much more manageable. As is discussed below, a similar discriminating approach to class definition should be adopted by courts dealing with these types of class actions.
The New Regime: Certification Is Straightforward
Prior to the three recent decisions which have liberalized the law for certifying competition class actions, there was a significant change in certification law generally, particularly in Ontario, which helps to inform the recent changes in competition class actions. The issue of whether damages could be determined on a class-wide basis was also an issue in several non-competition class action certification motions. In two 2007 decisions, Markson v. MBNA Canada Bank23 and Cassano v. Toronto-Dominion Bank,24 the Ontario Court of Appeal accepted that a classwide calculation of damages, based on section 24 of the Ontario Class Proceedings Act,25 would be sufficient to permit certification even though the claims asserted by the plaintiffs required proof of individual damages in order to establish liability. The Ontario Court of Appeal determined that it was sufficient to show that the defendants had potential liability on a class-wide basis, even if entitlement to monetary relief depended on individual assessments.26
These cases are important because they can be applied directly to what had been the greatest obstacle to certifying competition class actions. Although assessments of the harm caused by anti-competitive conduct to specific direct or indirect purchasers may be difficult to calculate, it is easier to calculate class-wide harm, or harm to all potential purchasers of the product. In fact, in some cases, defendants have already pleaded guilty to competition law infractions and have agreed to pay fines that approximate the amount of harm that was caused to the market by the anti-competitive conduct.27 Therefore, the relaxation of the requirement to demonstrate individual harm at the certification stage necessarily makes certification of competition class actions easier.
On April 27, 2009, the Ontario Divisional Court released its decision in Quizno's, reversing the motion judge's decision to refuse to certify the class action. This action involved allegations by Quizno's franchisees of pricefixing with respect to certain products that franchisees were required to use. All of the potential plaintiffs were direct purchasers. There was a limited number of plaintiffs and all of them were required to use the products that were the subject of the alleged anticompetitive conduct. As discussed above, this is the type of situation where a class action would appear to be a manageable proceeding.
The motion judge had refused to certify the action on the basis that proof of individual damages was required to establish the causes of action, meaning that individual issues predominated over common issues. In addition, the motion judge was critical of the methodology proposed by the plaintiffs' expert for calculating class-wide damages. In other words, the motion judge's decision was consistent with previous decisions refusing to certify competition class actions.
The Divisional Court determined that the inability to prove damages on a class-wide basis was not sufficient to deny certification. Instead, the Divisional Court held that the plaintiffs needed to adduce evidence sufficient to establish a reasonable methodology to calculate damages. In this case, the plaintiffs had done that. The Divisional Court also determined that a certification motion was not the appropriate time to be resolving conflicts in the expert evidence regarding harm to the class. The Divisional Court stated:
It is neither necessary nor desirable to engage in a weighing of this conflicting evidence on a certification motion. The plaintiffs on a certification motion will meet the test of providing some basis in fact for the issue of determination of loss to the extent that they present a proposed methodology by a qualified person whose assumptions stand up to the lay reader... it is setting the bar too high to require that evidence be led to support the factual foundation of the proposed methodology.28
The Divisional Court also determined that the plaintiffs might have recourse to section 24 of the Ontario Class Proceedings Act in order to calculate damages on a class-wide basis, much like the plaintiffs in Markson and Cassano.29
The decision in Quizno's, or at least the principles set out by the Court, seem reasonable. First, the Court was dealing with the type of competition class action that is likely manageable and appropriate for a class action proceeding. All the plaintiffs were direct purchasers, all of them had to purchase the products in question and all would have been affected by any anti-competitive conduct. Second, it seems an appropriate case to permit the plaintiffs to establish harm on a class-wide basis. Because of the nature of the relationships between the plaintiffs and the defendants, if the defendants had acted in an anticompetitive manner, thereby causing pricing increases, it is almost certain that each of the plaintiffs would have suffered harm and that there would be some relationship between the quantity of products purchased by each plaintiff and the amount of harm suffered. Therefore, there was little risk that, if anticompetitive conduct was established, the plaintiffs would be unable to demonstrate individual harm. Third, the Divisional Court's determination that conflicts in the expert economic evidence should not be resolved at the certification stage is fair to the plaintiffs. It is not fair to the plaintiffs to require them to prove damages or their theory of damages at the certification stage because the plaintiffs will necessarily lack the information that will be obtained on discovery that would permit them to prove their theory. If the plaintiffs do have the viable methodology to prove harm, this should be sufficient. It is too easy, given the vagaries and uncertainties of economics, for the defendants to adduce evidence from qualified experts who can cast doubt on the plaintiffs' methodology for demonstrating harm. The plaintiffs should not be put at a disadvantaged position at the certification stage because they do not yet have access to the information that might permit them to prove their case.
The two decisions after Quizno's appear to go even further in liberalizing the potential to certify competition class actions. On September 28, 2009, in Irving Paper, a class action was certified that involved an allegation of a conspiracy to fix the prices for hydrogen peroxide. Hydrogen peroxide is used in multiple industries, is used in many different ways and there are at least 36 direct users and numerous indirect users of the product.30 Therefore, this potential class action involved direct and indirect users of a product used in many different markets and as part of many different other products. As in Quizno's, the motion judge in Irving Paper determined that the plaintiffs had put forward a feasible method for calculating damages on a classwide basis and this was sufficient for the certification stage. In addition, the Court held that it was not necessary to resolve the competing expert opinions on harm at this stage of the proceeding.31
On November 12, 2009, the B.C. Court of Appeal released its reasons in the appeal of the refusal to certify the action in Pro-Sys Consultants. This potential class action involved an alleged international price fixing conspiracy for the sale of computer memory. It involved numerous direct and indirect purchasers of a product that had many different users and was normally a small portion of the overall cost of the products in which it is used. The motion judge had refused to certify the class action on the basis that there was no persuasive evidence of the existence of a viable and workable methodology to relate harm to individual class members. As a result, it would not be possible for the plaintiffs to prove individual liability. The Court of Appeal overturned the motion judge and certified the proceeding. Much like the decisions in Quizno's and Irving Paper, the B.C. Court of Appeal determined that, on the certification motion, it was sufficient for the plaintiffs to demonstrate potential harm on a class-wide basis. The Court of Appeal determined that the plaintiffs, through their expert witness, had put forward a viable methodology to determine the harm caused by the anti-competitive conduct. The Court of Appeal refused to resolve the competing expert opinions on harm at this point in the litigation.32
Conclusion: Have We Gone Too Far?
There is a conflict between the requirements of certifying a class action and demonstrating damages in a competition-related class action. In theory, it should be possible to prove damages on a class-wide basis, even if the class involves direct and indirect purchasers. In practice, this will be a complicated and difficult calculation. The plaintiffs will not normally have the evidence at the certification stage to prove that damages can be calculated on a class-wide basis. Therefore, if courts require the plaintiffs to prove classwide damages, or even to prove that their methodology or model to calculate damages will work, this will likely create an impassable hurdle to certifying competition class actions. The defendants will likely adduce evidence effectively casting doubt on any methodology proposed by the plaintiffs. Similarly, requiring plaintiffs to prove at the certification stage that individual harm was suffered by specific purchasers may be difficult, particularly when dealing with a product that has direct and indirect purchasers, is used in different industries and/or is an input to another final product.
At the same time, proof of individual damages is a fundamental component of any competition-related class action. Therefore, to permit certification of a competition class action where the plaintiffs may not eventually be able to calculate harm on a class-wide basis, let alone demonstrate that any individual purchasers actually suffered harm, is to certify a class action in which it may be impossible for the plaintiffs to establish liability. Moreover, permitting certification where the plaintiffs only need to demonstrate a workable methodology or model to calculate harm on a class-wide basis may result in an unmanageable class action. Certification decisions like Axiom Plastics and Quizno's appear to be types of actions where the proceeding will be manageable and it should be possible to calculate damages on a class-wide basis. In addition, it is likely that individual damage assessments will not be overly complicated when the time comes to make those determinations. Conversely, decisions such as Irving Paper and Pro-Sys Consultants may go too far, certifying actions in which the product in question has many uses, is used as an input, the class involves direct and indirect purchasers and the product may be a small component of the overall price of the final product purchased by indirect purchasers. These actions appear much less manageable and calculating damages, even on a class-wide basis, may be difficult and complicated.
In the U.S., this problem has been solved to some extent by case law that does not permit the certification of competition-related class actions on behalf of indirect purchasers.33 This assists in resolving some of the tension and conflict between economics and class action certification requirements, but seems a somewhat arbitrary way to deal with the problem. If the plaintiffs are indirect purchasers, but can demonstrate that the class action is manageable and there is a workable methodology by which to prove class-wide harm, it seems that such purchasers should not be precluded from pursuing a class action. To preclude certification in these circumstances seems unfair and artificial. The better solution is for Canadian courts to be more discriminating about class definition in the competition class actions that are certified. In this regard, the motion judge's determination in Axiom Plastics seems a sensible approach for a court to take. Narrowing the class, where possible, seems a viable method to make competition class actions manageable and harm easier to calculate. Conversely, Canadian courts should be wary of certifying broadly framed competition class actions like Irving Paper and Pro- Sys Consultants. Canadian courts should not simply rely on the fact that the plaintiff's expert has proposed a workable methodology, but should examine the factors that make it more likely harm can be proved on a classwide basis and that indicate the class action will be a manageable proceeding. The solution to the problem is to attempt to deal with these issues, and not to simply certify, or refuse to certify, all such class actions.
* The author would like to thank Rebecca Case and Alexandra Saginur for their helpful research in the preparation of this article.
Footnotes
1 R.S.C. 1985, c. C-34, as amended, hereinafter referred to as the "Act."
2 Claims under the Act are brought pursuant to section 36. Such claims can only be brought for breaches of Part VI of the Act, such as conspiracy, bid-rigging, false or misleading misrepresentations, double-ticketing and pyramid selling. Related tort claims include conspiracy, intentional interference with economic relations, and misrepresentation claims.
3 For a recent comprehensive discussion on the case law prior to April 2009, see the recent article in this publication by James Sullivan and Sara Knowles, "Are Competition Class Actions Dead in Canada?" (2009) 7 Class Action 446. See, also, John Laskin, Linda Plumpton and Amanda Kemshaw, "The Certification of Competition-related Class Actions in Canada" (2006) 3 Canadian Class Action Review 219.
4 The recent decisions are 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp. (2009), 96 O.R. (3d) 252 (Div. Ct.); Irving Paper Limited et al. v. Atofina Chemicals Inc. et al., [2009] O.J. No. 4021 (S.C.J.); and Pro-Sys Consultants Ltd. v. Infineon, Technologies AG, 2009 BCCA 503.
5 The Appeal in Quizno's was argued on January 27, 2010. The leave to appeal motion in Irving Paper was heard by the Ontario Divisional Court on January 26, 2010. The defendants in Pro-Sys Consultants have sought leave to appeal from the Supreme Court of Canada.
6 This is a very basic description of the economic concepts in order to understand how they interact with the legal test for certification. For a more detailed discussion on the economics of competition law and class actions, see: David Kent, "Conspiracy Class Action: Evidence on the Motion for Certification" (2006) 3 Canadian Class Action Review 245; John Beyer, "The Role of Economics in Class Certification and Class-Wide Impact" (2006) 3 Canadian Class Action Review 325; James Brander and Thomas Ross, "Estimating Damages From Price Fixing" (2006) 3 Canadian Class Action Review 335; and Steven Pitel, ed., Litigating Conspiracy: An Analysis of Competition Class Actions (Toronto: Irwin Law, 2006).
7 The allegation will be that there has been a breach of one or more of sections 45 (Conspiracy), 47 (Bid- Rigging), 52 (False or Misleading Representations), 54 (Double-Ticketing) and 55.1 (Pyramid Selling), which are all criminal breaches of the Act. A breach of these sections can give rise to an action for damages under section 36 of the Act. A claim under section 36 of the Act requires the party bringing the action to have suffered damages as a result of the anti-competitive conduct.
8 The next most common claim after conspiracy claims are those involving false or misleading representations. Prior to recent amendments to the Act, price discrimination and resale price maintenance were also criminal breaches of the Act. These were also common claims made in competition class actions, but it is no longer possible to bring a claim based on this conduct because the provisions covering them have been moved to another part of the Act to which section 36 does not apply.
9 For some examples of the difficulty in dealing with market definition, see Canada (Dir. Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 and Canada v. Canada Pipe Co., [2006] F.C.J. No. 1028 (C.A.).
10 These factors include: the nature of the product, whether it is homogeneous, heterogeneous or an input into another product; the structure of the market and whether suppliers have market power or there are barriers to entry; the price elasticity of demand and supply; the nature of the distribution system through which the product is supplied; and whether the price of the product has both qualitative and quantitative aspects.
11 As noted above, section 36 of the Act requires a plaintiff bringing a section 36 action to prove damages in order to succeed in the action. In addition, all of the related tort claims, like conspiracy, intentional interference with economic relations and misrepresentation, all require the plaintiff to prove damages as an element of the cause of action.
12 (2003), 63 O.R. (3d) 22 (C.A.), leave to appeal to S.C.C. dismissed, (2003) 65 O.R. (3d) xvii.
13 Ibid. at paragraph 52.
14 See, for example, Sullivan and Knowles, supra note 3 at 448-449 and Ronald Slaght and Ryan Breedon, "New Evidentiary Requirements for Certification: The Future of Price Fixing Class Proceedings in Ontario, A Comment on Chadha v. Bayer" (2004) 1 Canadian Class Action Review 159.
15 Chadha v. Bayer, supra note 12 at paragraph 65.
16 Price v. Panasonic Canada Inc. (2002), 22 C.P.C. (5th) 379 (S.C.J.).
17 As noted above, it is no longer possible to bring competition class actions for resale price maintenance because the Act has been amended and section 36 no longer applies to resale price maintenance.
18 Price v. Panasonic, supra note 16 at paragraph 64.
19 Steele v. Toyota Canada Inc. (2008), 295 D.L.R. (4th) 653 (B.C.S.C.) and Harmegnies v. Toyota Canada, 2007 QCCS 539.
20 (2008) 89 O.R. (3d) 252 (S.C.J.).
21 2008 BCSC 575.
22 Axiom Plastics Inc. v. E.I. DuPont Canada Co. (2007), 87 O.R. (3d) 352 (S.C.J.), leave to appeal refused, (2008) 90 O.R. (3d) 782 (Div. Ct.).
23 (2007), 282 D.L.R. (4th) 385 (Ont. C.A.).
24 2007 ONCA 781.
25 Class Proceeding Act, 2002, S.O. 1992, c. 6. Section 24 provides that the court may determine the aggregate or part of a defendant's liability to class members and give judgement where monetary relief is claimed, no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amounts of the defendant's monetary liability and the aggregate or part of the defendant's liability to some or all class members can recently be determined without proof by individual class members. The equivalent provision in B.C. is section 29 of the Class Proceedings Act, R.S.B.C. 1996, c. 50.
26 Cassano, supra note 24 at paragraph 38.
27 For example, one important factor in the Court of Appeal's decision in Pro-Sys Consultants was the fact that the defendants had already pleaded guilty to the conspiracy in the United States and had agreed to fines that purported to approximate the amount of harm caused by the anti-competitive conduct; Pro-Sys Consultants, supra note 4 at paragraph 33.
28 Quizno's, supra note 4 at paragraphs 102 and 104.
29 Ibid. at paragraphs 116-123.
30 Irving Paper, supra note 4 at paragraphs 2 and 14-16. 29 Ibid. at paragraphs 116-123.
31 Ibid. at paragraphs 118-119 and 143-145.
32 Ibid. at paragraphs 66-70.
33 Illinois Brick Co. v. Illinois, 43 U.S. 720 (1977). Some U.S. states have legislation that permits class 32 Ibid. at paragraphs 66-70. actions on behalf of indirect purchasers.
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