Indirect purchaser suits and the consumer interest

摘要

We have argued that indirect purchaser class actions―touted as a means of protecting the consumer interest―have failed to benefit consumers, either by providing them with significant compensation or by more efficiently deterring monopolization or price fixing. The failure to compensate is a documented fact. In many instances of price fixing, particularly those involving ingredients used in other products, class counsel do not even attempt to define an indirect purchaser class of consumers. Of those indirect purchaser consumer class actions that are filed, many are not certified. Of those that are certified, most make no effort to provide actual damages to the consumers who suffered the harm, preferring to distribute the money "on their behalf to worthy causes. Of those certified consumer class actions that do attempt to award actual damages, the claims rates are low, and the remaining money must be disposed of in other ways. The conclusion is inescapable that indirect purchaser class actions do not provide significant compensation to consumers. The failure to deter (rationally) is less definitive, but nonetheless evident from experience. There is no good evidence that direct purchasers, as a rule, are any less likely to sue for an overcharge than indirect purchasers. In most instances in which one class of purchasers sues, the other does as well. Multiple class actions are costly and raise a risk of multiple recovery, an outcome that cannot be justified by a policy of rational deterrence.