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In 2009, the Third Circuit decided Hydrogen Peroxide, which announced a more rigorous standard under Federal Rule of Civil Procedure 23(b)(3) for assessing whether a putative class could establish antitrust injury. Earlier this year, the Supreme Court decided Comcast v. Behrend, a case that carries potentially broad implications for both antitrust cases and Rule 23(b)(3) class actions generally. A review of the case law starting with Hydrogen Peroxide and continuing through Comcast and its progeny reveals the new rigor in antitrust class action decisions and suggests what the future may hold, including the type of arguments that may provide defendants the most likely chance of defeating class certification. After Comcast, rigor under 23(b)(3) can no longer be avoided in assessing all class actions questions, and courts should now apply Daubert fully in the class setting concerning both impact and damages. Courts should also closely evaluate plaintiffs’ proposed methodologies for proving impact to determine if they apply to each class member. Finally, courts will inevitably have to determine how rigorously to scrutinize experts’ damages methodologies and whether Comcast requires or suggests more scrutiny in assessing common evidence for measuring damages.

In class action antitrust litigation, the standards for acceptable economic analysis at class certification have continued to evolve. The most recent event in this evolution is the United States Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1435 (2013). The evolution of pre-Comcast law on this topic is presented, the Comcast decision is thoroughly assessed, as are the standards for developing reliable economic analysis. This article explains how economic evidence of both antitrust liability and damages ought to be developed in light of the teachings of Comcast, and how liability evidence can be used by economists to support a finding of common impact for certification purposes. In addition, the article addresses how statistical techniques such as averaging, price-dispersion analysis, and multiple regressions have and should be employed to establish common proof of damages.

This article responds to James Keyte, Paul Eckles, and Karen Lent’s article “From Hydrogen Peroxide to Comcast: The New Rigor in Antitrust Class Actions” (“The New Rigor”). It argues that The New Rigor offers valuable strategic advice to defense counsel – and insight into defense counsel’s strategic thinking – but is much less effective as an objective statement of the law or a normative argument for legal reform. In the parlance that I adopt, The New Rigor succeeds in the role of coach but much less so in the roles of commentator and critic.

The COVID-19 pandemic has disrupted the ‘real’ world and substantially impacted the virtual world and thus the Internet ecosystem. It has caused a significant exogenous shock that offers a wealth of natural experiments and produced new data about broadband, clouds, and the Internet in times of crisis. In this chapter, we characterise and evaluate the evolving impact of the global COVID-19 crisis on traffic patterns and loads and the impact of those on Internet performance from multiple perspectives. While we place a particular focus on deriving insights into how we can better respond to crises and better plan for the post-COVID-19 ‘new normal’, we analyse the impact on and the responses by different actors of the Internet ecosystem across different jurisdictions. With a focus on the USA and Europe, we examine the responses of both public and private actors, with the latter including content and cloud providers, content delivery networks, and Internet service providers (ISPs). This chapter makes two contributions: first, we derive lessons learned for a future post-COVID-19 world to inform non-networking spheres and policy-making; second, the insights gained assist the networking community in better planning for the future.

On May 18, 2014, AT&T Inc., the second-biggest U.S. mobile-phone carrier, agreed to acquire DirecTV, a satellite-television company, for $49 billion in cash and stock. However, the merger’s conditions and terms are complicated as the stock exchange ratio is contingent on the volume-weighted average AT&T stock price over a 30-day period that is three trading days prior to the date when the merger becomes effective.

Using a contingent claims pricing approach, we model DirecTV’s theoretical value based on the merger’s conditions and terms. It is shown that the theoretical DirecTV stock value is analogous to the sum of the present value of a cash offer, plus owning shares of the AT&T stock, and short volume-weighted average price (VWAP) call spreads. Using three different option-pricing models, DirecTV’s stock valuation model is tested with the market data. Empirical results show that on average, DirecTV’s stock was consistently priced at a discount during the sample period, and Funahashi and Kijima’s (2017) VWAP option model works better than Black and Scholes’ (1973) plain vanilla option model and Levy’s (1992) average-price option model.

As cable and satellite industry undergoes transformation in the 21st century with the onslaught of innovation-driven changes, it is important to know which company is doing better and which company is falling behind. This study compares the relative performance of eight cable companies using three factors: operating expense for every dollar of operating revenue, earnings before interest, taxes, depreciation, and amortization, and return on assets. We also evaluate the performance of each firm against itself for the period 2010–2013 to see if they show improvement or deterioration in operating efficiency.

In antitrust class-action litigation, courts are increasingly unlikely to accept the presumption that all class members were harmed by price-fixing among a group of firms or by exclusionary behavior by a single firm. Econometric methods typically applied in antitrust and other settings estimate the average effect of the challenged conduct, but do not inform impact for individual class members. We present classwide econometric methods and statistical tests for detecting the existence (or lack thereof) of common impact and determining what proportion (if any) of the proposed class suffered injury in many class actions. We conclude that econometric tools can meaningfully inform the legal process, even when courts demand proof of common impact.

Following the Supreme Court’s 1988 decision in Basic, securities class plaintiffs can invoke the “rebuttable presumption of reliance on public, material misrepresentations regarding securities traded in an efficient market” [the “fraud-on-the-market” doctrine] to prove classwide reliance. Although this requires plaintiffs to prove that the security traded in an informationally efficient market throughout the class period, Basic did not identify what constituted adequate proof of efficiency for reliance purposes.

Market efficiency cannot be presumed without proof because even large publicly traded stocks do not always trade in efficient markets, as documented in the economic literature that has grown significantly since Basic. For instance, during the recent global financial crisis, lack of liquidity limited arbitrage (the mechanism that renders markets efficient) and led to significant price distortions in many asset markets. Yet, lower courts following Basic have frequently granted class certification based on a mechanical review of some factors that are considered intuitive “proxies” of market efficiency (albeit incorrectly, according to recent studies and our own analysis). Such factors have little probative value and their review does not constitute the rigorous analysis demanded by the Supreme Court.

Instead, to invoke fraud-on-the-market, plaintiffs must first establish that the security traded in a weak-form efficient market (absent which a security cannot, as a logical matter, trade in a “semi-strong form” efficient market, the standard required for reliance purposes) using well-accepted tests. Only then do event study results, which are commonly used to demonstrate “cause and effect” (i.e., prove that the security’s price reacted quickly to news – a hallmark of a semi-strong form efficient market), have any merit. Even then, to claim classwide reliance, plaintiffs must prove such cause-and-effect relationship throughout the class period, not simply on selected disclosure dates identified in the complaint as plaintiffs often do.

These issues have policy implications because, once a class is certified, defendants frequently settle to avoid the magnified costs and risks associated with a trial, and the merits of the case (including the proper application of legal presumptions) are rarely examined at a trial.