NOTE 

THE PROPRIETY AND INEVITABILITY OF 

NETTING IN ANTITRUST CLASS ACTIONS 

Sam Fineberg* 

How to define “antitrust injury” is an issue that has been 

the source of much debate among judges, lawyers, and academ-

ics alike. Specifically, a disagreement exists as to whether par-

ticipation in a single transaction, which a defendant has alleg-

edly tainted via anticompetitive behavior, is sufficient to 

constitute antitrust injury. Complicating this area of jurispru-

dential and doctrinal uncertainty are cases in which a plaintiff 

who has alleged injury as a result of anticompetitive conduct 

later reaped offsetting gains resulting from that very same con-

duct. The disagreements regarding the role of these net benefi-

ciaries, and the netting process necessary to identify them, in 

antitrust suits implicate matters that extend far beyond legal 

theory. This Note outlines the multitude of ways in which the 

foregoing consequences manifest. It then highlights the propri-

ety of a contextual approach in which courts are more willing 

to engage in nuanced and substantive class certification anal-

yses that balance the interests of the litigants and the goals of 

the antitrust laws. The Note uses financial markets, and vari-

ations among the instruments therein, as a specific instantia-

tion of these principles and a context in which a nuanced ap-

proach is especially compelling. It concludes by demonstrating 

that, regardless of whether a court incorporates netting into its 

definition of antitrust injury, it will have to contend with net-

ting principles during the class–certification process. 

 

 

*J.D. Candidate 2024, Columbia Law School; B.A. University of Maryland. 

Many thanks to Professor Justin McCrary for his guidance, especially with 

respect to finding a topic on which to focus my note. I would also like to 

thank the staff of the Columbia Business Law Review for their efforts in 

helping me edit my note and prepare it for publication. 



  

894 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

I. Introduction ...................................................................... 894 
II. The Statutory and Doctrinal Landscape ........................ 899 

A. Legal History ......................................................... 899 
B. The Clayton Act and Class Actions ....................... 900 

III. “Injury” and the Antitrust Class Action ....................... 904 
A. Antitrust Injury ..................................................... 904 
B. Adequacy ............................................................... 906 
C. Predominance ........................................................ 909 

IV. To Net, or not to Net? .................................................... 912 
A. In Defense of the Irrelevancy of Offsetting Benefits 

to Antitrust Injury ............................................... 912 
1. The Goals of Antitrust Law ............................. 913 
2. Class Action Procedures .................................. 915 

B. Why Offsetting Benefits are Relevant to Antitrust 

Injury ................................................................... 915 
1. Doctrinal Consistency and Statutory Goals .... 917 
2. Practical Realities ............................................ 920 

C. The Persistent Relevance of Netting .................... 923 
V. Financial Markets: A Case Study ................................... 925 

A. The Bid-Ask Spread as a Price .............................. 926 
1. The Unique Benchmark Rate .......................... 928 

B. Netting Endures .................................................... 930 
1. Adequacy .......................................................... 931 
2. Predominance .................................................. 933 

VI. Conclusion...................................................................... 935 
 

I. INTRODUCTION 

The Sherman Act and Clayton Act are integral to ensuring 

that commercial markets are devoid of anticompetitive con-

duct that harms the proper functioning of said markets and 

the participants therein.1 To bolster the authority that the 

Sherman Act gave to government entities to enforce the anti-

trust laws, the Clayton Act significantly expanded the scope 

 

1 See, e.g., United States v. Von’s Grocery Co., 384 U.S. 270, 274 (1966); 

Am. Safety Equip. Corp. v. J.P. Maguire & Co., 391 F.2d 821, 826 (2d Cir. 

1968); Ratliff v. Burney, 505 F. Supp. 105, 108 (W.D.N.C. 1981); Signode 

Steel Strapping Co. v. FTC, 132 F.2d 48, 53 (4th Cir. 1942). 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 895 

of such enforcement powers by granting private parties who 

are able to demonstrate injury as a result of anticompetitive 

behavior the right to bring suit and potentially receive treble 

damages.2 Although the Clayton Act makes it far less likely 

that those engaging in conduct that harms competition will 

evade liability, it also raises the specter of an opposing prob-

lem: that private parties will not only bring meritorious suits, 

but also those lacking merit so as to win substantial payouts.3 

This is a particularly troublesome possibility in the context of 

antitrust class actions, which carry with them potential treble 

damages awards to an entire class of plaintiffs, thereby giving 

members of a certified class substantial leverage to induce the 

defendant to accept a settlement.4 Such statutory gamesman-

ship is not new to the American legal landscape,5 and it is thus 

imperative that there exist sufficient guardrails to filter out 

frivolous lawsuits while simultaneously allowing for those 

with a legitimate basis to proceed. 

Despite the foregoing, the procedural requirements neces-

sary to sustain an antitrust class action have proven effective 

 

2 HERBERT HOVENKAMP & PHILLIP E. AREEDA, ANTITRUST LAW: AN ANAL-

YSIS OF ANTITRUST PRINCIPLES AND THEIR APPLICATION ¶103c & n.100 (5th 

ed. 2022) (ebook). 
3 See S. Snack Foods, Inc. v. J & J Snack Foods Corp., 79 F.R.D. 678, 

682 (D.N.J. 1978); cf. In re Lorazepam & Clorazepate Antitrust Litig., 289 

F.3d 98, 102 (D.C. Cir. 2002) (noting that, as a general matter, granting 

class certification “can put substantial pressure on the defendant to settle 

independent of the merits of the plaintiffs’ claims”). 
4 See Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 

154, 162 (3d Cir. 2001) (“[D]enying or granting class certification . . . may 

sound the ‘death knell’ of the litigation on the part of plaintiffs, or create 

unwarranted pressure to settle nonmeritorious claims on the part of defend-

ants[.]”). 
5 See Elliott Weiss & John Beckerman, Let the Money Do the Monitor-

ing: How Institutional Investors Can Reduce Agency Costs in Securities 

Class Actions, 104 YALE L.J. 2053, 2079–88 (1995) (detailing the belief 

among many critics that plaintiffs’ attorneys brought frivolous securities 

class actions so as to extract lucrative settlements). Relatedly, some have 

contended that the foregoing suspicions materially contributed to the pas-

sage of the Private Securities Litigation Reform Act. See MELVIN A. EISEN-

BERG & JAMES D. COX, BUSINESS ORGANIZATIONS: CASES AND MATERIALS 83 

(12th ed. 2019). 



  

896 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

at removing unmeritorious suits from the docket. In order to 

survive, an antitrust class action must demonstrate that the 

class members have constitutional standing, statutory stand-

ing, and the requisite characteristics for class certification.6 

Although the constitutional requirement that federal courts 

may only hear “cases and controversies” is a relatively low 

threshold, there is a lack of consensus as to whether the same 

is true for antitrust standing and class certification.7 In par-

ticular, courts disagree about the definition of the “antitrust 

injury” necessary to establish antitrust standing, particularly 

with regard to plaintiffs who engaged in transactions in which 

the defendant employed anticompetitive practices, but who 

were nonetheless net beneficiaries thereof.8 How to define an-

titrust injury is a question that likely implicates not only an-

titrust standing, but also the ability of the class to demon-

strate that its members have issues that predominate over 

those of an individual nature.9 Furthermore, regardless of 

whether a court, in an antitrust injury analysis, considers the 

fact that some plaintiffs were net beneficiaries, the adequacy 

analysis in antitrust class actions implicates the same con-

cerns as those which would be present if the court had consid-

ered such so-called “netting.”10 As is the case with the proper 

 

6 Gelboim v. Bank of Am. Corp., 823 F.3d 759, 770 (2d Cir. 2016); In re 

LIBOR-Based Fin. Instruments Antitrust Litig., 299 F. Supp. 3d 430, 458 

(S.D.N.Y. 2018). Some courts, before looking to Federal Rule of Civil Proce-

dure 23, evaluate whether a class has “class standing.” See 299 F. Supp. 3d 

at 458. 
7 Compare LIBOR-Based Litig., 299 F. Supp. 3d at 593 (holding that 

the standard for demonstrating Article III injury is distinct from, and less 

onerous than, that for antitrust injury), with Astrazeneca AB v. UFCW (In 

re Nexium Antitrust Litig.), 777 F.3d 9, 27 (1st Cir. 2015) (defining antitrust 

injury in a way that the LIBOR court views as overly permissive and too 

closely resembling the Article III injury analysis). 
8 See LIBOR-Based Litig., 299 F. Supp. 3d at 593; In re Nexium Anti-

trust Litig., 777 F.3d at 27. 
9 United Food & Commer. Workers Unions and Emplrs. Midwest 

Health Bens. Fund v. Warner Chilcott Ltd. (In re Asacol Antitrust Litig.), 

907 F.3d 42, 51–58 (1st Cir. 2018). 
10 Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1190 (11th 

Cir. 2003) (“To our knowledge, no circuit has approved of class certification 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 897 

definition of antitrust injury, courts disagree about whether, 

and to what extent, the presence of plaintiffs who were net 

beneficiaries affects class certification.11 Given the considera-

ble damages often at stake in antitrust class actions, it is im-

perative to resolve the foregoing issues in a sensible way that 

adequately balances the goals of the antitrust laws and the 

interests of plaintiffs and defendants. 

This Note argues that, contrary to the approach that some 

courts have espoused, courts should favor the adoption of the 

net harm standard for antitrust injury. This approach, at a 

minimum, is appropriate in a number of antitrust contexts. In 

advancing this proposition, the Note demonstrates that this 

screening mechanism is consonant with the prescriptions of 

the Federal Rules of Civil Procedure (FRCP) and prevailing 

jurisprudential guidelines, as well as the need to balance the 

interests of all litigants and advance statutory aims. As this 

Note demonstrates, however, a court’s decision with respect to 

netting’s pertinence to antitrust injury is ultimately likely ir-

relevant, as the procedural dictates of certifying antitrust 

classes necessitate a consideration of net harm at some point 

in that process. 

Part II of this Note lays out the statutory and doctrinal 

foundations upon which antitrust law rests. It will discuss 

cases through which the Supreme Court gradually erected a 

framework for evaluating private actions that plaintiffs bring 

under §4 of the Clayton Act. The Part will focus on the com-

pelling format of the class action as a means of bringing anti-

trust treble damages claims. It will also analyze the requisite 

elements to sustain a class action and the various demonstra-

tions of standing—of the constitutional and antitrust varie-

ties—which are necessary components of that same threshold 

matter. 

Part III will delve more deeply into the uncertainty sur-

rounding the definition of “antitrust injury” and how a given 

interpretation of that concept can materially affect an anti-

trust class action’s prospect of success. Specifically, the Part 
 

where some class members derive a net economic benefit from the very same 

conduct alleged to be wrongful by the named representatives of the class.”). 
11 Id. 



  

898 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

will outline the lack of clarity as to whether “antitrust injury” 

includes a conception of netting, and how that uncertainty 

shapes the adequacy and predominance elements necessary to 

attain class certification in certain FRCP 23(b)(3) suits, in-

cluding those of an antitrust nature. 

Part IV will demonstrate that, despite some compelling 

reasons to the contrary, there are more persuasive grounds to 

favor the use of the netting standard for antitrust injury, par-

ticularly in certain contexts. This approach accords not only 

with antitrust and class certification doctrines, but also serves 

to advance the goals of the antitrust laws. Yet, courts will 

most likely have to engage in a netting analysis, notwith-

standing their approach to defining antitrust injury, due to 

prevailing doctrines pertaining to the adequacy and predomi-

nance elements of the class certification process. Although 

this Part concludes with a suggestion of possible means of nav-

igating the foregoing areas of doctrinal uncertainty, it does not 

assess their relative merits, as that is an endeavor beyond the 

scope of this Note. 

Part V will show that the foregoing analyses bear rele-

vance to contemporary commercial environments. Indeed, fi-

nancial markets, and the differences among the instruments 

in those markets, bespeak contextual applications of antitrust 

principles that comport with the underlying nature of alleg-

edly collusive behavior. Specifically, this Part compares and 

contrasts the bid-ask spreads through which market makers 

earn a fee with the benchmark rates that form price compo-

nents of various financial instruments. Salient to this evalua-

tion is the contention that, unlike the latter, the former is 

highly analogous to a discrete price for a given good or service, 

thereby rendering a bid-ask spread susceptible to a conven-

tional antitrust analysis. Conversely, this Part contends, a 

benchmark rate is a far more complicated datum regarding 

which a more nuanced application of antitrust principles is 

warranted. The Part concludes by demonstrating that, even 

in the context of financial markets, netting will be relevant to 

the certification of an antitrust class, irrespective of a court’s 

decision to espouse or eschew the net harm standard for anti-

trust injury. 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 899 

II. THE STATUTORY AND DOCTRINAL 
LANDSCAPE 

An understanding—albeit cursory—of the history and 

aims of the federal antitrust laws is necessary to engage in the 

analytical endeavor that is the focus of this Note. The Sher-

man Act and the Clayton Act serve the same preventative role 

against anticompetitive and monopolistic behavior that 

harms consumers and diminishes market efficiency. There are 

nonetheless important differences between the two statutes, 

especially with respect to plaintiffs’ pleading and evidentiary 

standards. These differences, in turn, are manifest in the class 

action context. 

A. Legal History 

Congress passed the Sherman Act in 1890 in the wake of 

an unprecedented rise of corporations, i.e., trusts, and the 

competition-defeating dominance that these large entities 

wielded. The legislation “federalize[d]” the existing uncoordi-

nated quilt of state laws that governed such areas, in an at-

tempt to mitigate the harmful effects on markets and citizens 

from anticompetitive and monopolistic behavior.12 Yet many 

found the Sherman Act to be significantly deficient, and in 

1914 Congress passed the Clayton Act and Federal Trade 

Commission Act. Congress passed the former statute to im-

prove the shortcomings of the Sherman Act by, among other 

measures, specifying what constitutes anticompetitive con-

duct, allowing plaintiffs to target anticompetitive behavior in 

its incipiency, and lowering the burdens for private actions 

that the Sherman Act had sanctioned.13 

 

12 HOVENKAMP & AREEDA, supra note 2, ¶101. 
13 EARL W. KINTNER, JOSEPH P. BAUER, WILLIAM H. PAGE & JOHN E. 

LOPATKA, FEDERAL ANTITRUST LAW §§ 18.2, 18.9 (3d ed. 2021). Congress has, 

over the ensuing decades, amended antitrust legislation with statutes such 

as the Robinson-Patman Act of 1936, which allowed small businesses to 

bring suit under the Clayton Act. 



  

900 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

B. The Clayton Act and Class Actions 

Section 4 of the Clayton Act provides that “any person who 

shall be injured in his business or property by reason of any-

thing forbidden in the antitrust laws may sue . . . and shall 

recover threefold the damages by him sustained[.]”14 Alt-

hough, on the surface, this statute does not seem to impose 

many limitations on bringing private antitrust suits for treble 

damages, federal courts have gradually imposed boundaries 

on the scope of such actions. There are thus many elements in 

an evaluation of whether a plaintiff has so-called “antitrust 

standing.” In order to have standing to bring an antitrust ac-

tion, a plaintiff must allege: (1) injury-in-fact by reason of the 

antitrust violation (i.e., causation); (2) that the injury is not 

unduly remote from the violation; (3) “antitrust injury;” and 

(4) cognizable and reasonably quantifiable damages.15 Per-

haps the most uncertain,16 confusing,17 and contentious18 as-

pect of § 4 jurisprudence is the Supreme Court’s requirement 

that the plaintiff’s injury be an “antitrust injury,” which the 
 

14 Clayton Antitrust Act of 1914 § 4, 15 U.S.C. § 15(a) (2009). 
15 Stephen V. Bomse & Scott A. Westrich, Both Sides Now: Buyer Dam-

age Claims in Antitrust Actions Involving “Two-Sided” Markets, 2005 

COLUM. BUS. L. REV. 643, 647 (2005). The first two of these additional four 

elements are the causation standard, which in this context means that the 

defendant’s conduct was, at a minimum, reasonably foreseeably likely to 

injure the plaintiff and was a material cause of the plaintiff’s injury. See, 

e.g., Zenith Radio Corp. v. Hazeltine Rsch., Inc., 395 U.S. 100, 114 n.9 

(1969); Hoopes v. Union Oil Co., 374 F.2d 480, 485 (9th Cir. 1967). While the 

presence of a violation is not itself sufficient to bring damages, and while 

the courts insist on greater proof of the fact of injury, they are willing to 

accept weaker proof of the quantum of damage. HOVENKAMP & AREEDA, su-

pra note 2, ¶ 340a1. Some circuit courts of appeals have combined all of the 

above elements, except for that of antitrust injury, into an “efficient en-

forcer” test. See Gelboim v. Bank of Am. Corp., 823 F.3d 759, 772 (2d Cir. 

2016). 
16 KENNETH EWING, STEPTOE & JOHNSON LLP, PRIVATE ANTI-TRUST 

REMEDIES UNDER US LAW, 1 PLC CROSS-BORDER COMPETITION HANDBOOK 88 

(2006/07), https://www.steptoe.com/a/web/1731/2804.pdf 

[https://perma.cc/2WMC-EMBS]. 
17 HOVENKAMP & AREEDA, supra note 2, ¶ 337a n.4, ¶ 337c. 
18 Robert D. Blair & Jeffrey L. Harrison, Rethinking Antitrust Injury, 

42 VAND. L. REV. 1539, 1541 (1989). 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 901 

Court defines as an “injury of the type the antitrust laws were 

intended to prevent and that flows from that which makes de-

fendants’ acts unlawful.”19 Litigants must routinely navigate 

this often-confusing doctrinal landscape in antitrust class ac-

tions, in addition to satisfying the Article III “case or contro-

versy” requirement20 and demonstrating the prerequisites for 

class certification. 

Class actions are uniquely suited to the private enforce-

ment of antitrust laws.21 Indeed, the class action is the domi-

nant form of private antitrust enforcement in the United 

States, and in recent decades, practitioners have brought such 

suits on behalf of clients with increasing frequency.22 The 

class action’s inherent virtues in many ways advance the goals 

of antitrust laws. In addition to combining many claims into a 

single proceeding, the class action also allows those with le-

gitimate claims that are otherwise too costly to pursue to re-

ceive a fair hearing. These so-called “negative value” suits not 

only provide redress for those who have suffered an injury as 

a result of anticompetitive conduct, but also serve as a deter-

rent to those market participants which would otherwise be 

willing to violate such laws on a small scale so as to avoid legal 

liability.23 Yet, concomitant with these benefits are the dele-

terious aspects of antitrust class actions. The large payouts 

that successful class action plaintiffs stand to gain attract, to 

a greater degree than would be the case in individual suits, 

plaintiffs (or their lawyers) who seek to engage in gamesman-

ship that allows them to extract the biggest payouts 

 

19 Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 

(1977). 
20 HOVENKAMP & AREEDA, supra note 2, ¶ 335. 
21 See In re Vitamins Antitrust Litig., 209 F.R.D. 251, 258 (D.D.C. 

2002). 
22 Christine P. Bartholomew, Death by Daubert: The Continued Attack 

on Private Antitrust, 35 CARDOZO L. REV. 2147, 2150 (2014); Amit Bin-

dra, Antitrust Class Action Litigation Post Wal-Mart v. Dukes: More of the 

Same, 13 J. BUS. & SEC. L. 201, 202 (2013); NAT’L LEGAL RSCH. GRP., FED-

ERAL CONTROL OF BUSINESS: ANTITRUST LAWS, § 174 (July 2022). 
23 Bindra, supra note 22, at 204. 



  

902 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

possible.24 This dynamic raises the prospect of an increase in 

frivolous suits that nonetheless enable the extraction of set-

tlements due to defendants’ strong aversions to risking large 

damages awards should such cases have adverse results.25 

The result might be an overdeterrence that makes market 

participants overly cautious, thereby lessening, rather than 

increasing, market competition.26 

Given the foregoing, it is no surprise that certification of a 

class is “often the defining moment” in a class action since it 

carries with it the potential to put so much pressure on the 

defendants to settle that it sounds the “death knell” of the lit-

igation.27 Accordingly, the legal battle between plaintiffs and 

defendants over a court’s decision to certify a class is often 

highly contentious.28 Most antitrust class actions are those of 

the FRCP 23(b)(3) variety such that plaintiffs must demon-

strate—in addition to standing—the numerosity, commonal-

ity, typicality, and adequacy requirements of FRCP 23(a)(1-4), 

 

24 See Richard A. Epstein, Class Actions: The Need for a Hard Second 

Look, 4 CIV. JUST. REP. 1 (Mar. 2002). This is not to say that all antitrust 

plaintiffs’ lawyers have such motives. 
25 HOVENKAMP & AREEDA, supra note 2, ¶ 331. 
26 See Greater Rockford Energy & Tech. Corp. v. Shell Oil Co., 998 F.2d 

391, 394 (7th Cir. 1993). 
27 Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 

162 (3d Cir. 2001) (“[D]enying or granting class certification is often the de-

fining moment in class actions (for it may sound the ‘death knell’ of the liti-

gation on the part of plaintiffs, or create unwarranted pressure to settle 

nonmeritorious claims on the part of defendants)[.]”). See also Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 559 (2007) (“[T]he threat of [post-certification] 

discovery expense will push cost-conscious defendants to settle even anemic 

cases before reaching those proceedings.”). See also In re Rail Freight Fuel 

Surcharge Antitrust Litig. - MDL No. 1869, 725 F.3d 244, 250 (D.C. Cir. 

2013) (“The decision to certify [an antitrust class has the potential to place] 

. . . ‘substantial pressure on the defendant to settle independent of the mer-

its of the plaintiffs’ claims.’”) (quoting In re Lorazepam & Clorazepate Anti-

trust Litig., 289 F.3d 98, 102 (D.C. Cir. 2002)). 
28 Scott Dodson, Subclassing, 27 CARDOZO L. REV. 2351, 2356 (2006); cf. 

A.B.A., CONSUMER PROTECTION LAW DEVELOPMENTS II(D)(2)(a)(2) (2nd ed. 

2016) (noting that, in class actions seeking monetary damages under the 

Telephone Consumer Protection Act of 1991, class certification is a conten-

tious matter.) 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 903 

as well as the additional superiority and predominance ele-

ments of Rule 23(b)(3).29 Thus, the uncertainty surrounding 

the precise meaning of “antitrust injury” is, given the inter-

pretive discretion accompanying such uncertainty, a ripe is-

sue upon which both plaintiffs and defendants can construct 

their class certification arguments.30 In particular, the pro-

spect of a court defining antitrust injury in a way that renders 

many members of a proposed class uninjured, as well as the 

possibility that the often-individual nature of such injuries 

will defeat a finding of predominance and superiority, impli-

cates many of the essential elements of successful class certi-

fication.31 Furthermore, the complex and in-depth analysis 

that is often necessary to resolve issues surrounding antitrust 

injury risks coming into conflict with the general proscription 

against evaluating the merits of a claim in the certification 

stage of a class action.32 The next Part will examine in greater 

depth the ways in which the issue of antitrust injury can be 

dispositive in determining the outcome of an antitrust class 

action. 

 

29 FED. R. CIV P. 23(a–b); See Amy Dudash, Hydrogen Peroxide: The 

Third Circuit Comes Clean about the Rule 23 Class Action Certification 

Standard, 55 VILL. L. REV. 985, 989 (2010). 
30 See Richard L. Stone & Poopak Nourafchan, Use of Class Actions is 

on the Rise; Key to Class Certification in Antitrust Cases is Establishing Im-

pact or Fact Damage through Common Proof, NAT’L L.J., (Mar. 24, 2003)  

https://www.hoganlovells.com/~/media/hogan-lovells/pdf/publica-

tion/690stonenlj030324_pdf.pdf [https://perma.cc/K5UG-ZSSZ]. 
31 See Dudash, supra note 29, at 989; see also In re Cardizem CD Anti-

trust Litig., 200 F.R.D. 297, 305 (E.D. Mich. 2001) (“[I]t is commonplace for 

individual persons claiming antitrust injury to assign their claims to an as-

sociation formed for the specific purpose of pursuing litigation.”) (quoting 

Gulfstream III Assocs. v. Gulfstream Aero. Corp., 995 F.2d 425, 437 (3d 

Cir.1993)); cf. Prezant v. De Angelis, 636 A.2d 915, 923 (Del. 1994) (“The 

adequacy of the class representative has a constitutional dimension.”). 
32 See Suzette M. Malveaux, Front Loading and Heavy Lifting: How 

Pre-dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil 

Rights Cases, 14 LEWIS & CLARK L. REV. 65, 110 (“[D]isentangling class cer-

tification from merits discovery has proved challenging.”). 



  

904 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

III. “INJURY” AND THE ANTITRUST CLASS 
ACTION 

The definition of “antitrust injury” that a court adopts can 

shape the procedural, strategic, and substantive elements of 

a class action. This inquiry implicates not only the core of an-

titrust standing, but also the adequacy of representative par-

ties, and the predominance of common issues in the plaintiffs’ 

claims. The resolution of these doctrinal ambiguities can be 

dispositive in the prospect of a suit succeeding, not only with 

respect to the merits of the claim, but also in extracting a set-

tlement from the defendant.33 

A. Antitrust Injury 

In order for a federal court to have jurisdiction to even hear 

a case, the plaintiff must demonstrate, at the pleading stage, 

that there exists a “controversy.”34 This so-called “constitu-

tional” or “Article III” standing requirement is a hurdle that 

looks to whether the plaintiff has alleged an “injury-in-fact,” 

and applies to all claims over which a federal court can exer-

cise subject matter jurisdiction. Serving a similar gatekeeping 

function is the requirement that plaintiffs have statutory 

standing, i.e., they must be “within the class of plaintiffs 

whom Congress has authorized to” bring suit under the stat-

ute in question.35 Courts use the phrase “antitrust standing” 

to refer to statutory standing in antitrust suits, which re-

quires, among other elements, that the plaintiff allege “anti-

trust injury.” 36 

 

33 See Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 678 (7th Cir. 2009) 

(“When the potential liability created by a lawsuit is very great, even though 

the probability that the plaintiff will succeed in establishing liability is 

slight, the defendant will be under pressure to settle rather than to bet the 

company, even if the betting odds are good[.]”). 
34 See Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016). 
35 Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 

128 (2014); accord United States v. $8,221.877.16 in U.S. Currency, 330 

F.3d 141, 150 n.9 (3d Cir. 2003) (“Statutory standing is a threshold issue 

that determines whether a party is properly before the court.”). 
36 See Bomse & Westrich, supra note 15, at 644. 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 905 

Complicating the picture is the view in many circuits that 

the distinction between constitutional and antitrust standing 

allows for the “injury-in-fact” of the former to be incapable of 

“sustaining a valid cause of action” while still satisfying the 

standards for constitutional standing.37 Such an approach 

yields the prospect of an even more confusing doctrinal land-

scape in which a court must engage in numerous evaluations 

of the same factor—injury—in the distinct contexts of the re-

spective forms of necessary standing, under different evalua-

tive criteria.38 Even among those courts which hold that an 

injury-in-fact need not be capable of sustaining a cause of ac-

tion, there is little doubt that engaging in even a single trans-

action with which anticompetitive conduct has interfered is 

sufficient to satisfy the relatively-low threshold for Article III 

standing.39 Such a consensus is absent among all courts, how-

ever, with respect to “antitrust injury.”40 

The Supreme Court has defined “antitrust injury” as 

an ”injury of the type the antitrust laws were intended to 

 

37 See Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d. Cir. 2006) 

(“[A]n injury-in-fact differs from a ‘legal interest’; an injury-in-fact need not 

be capable of sustaining a valid cause of action under applicable tort law.”); 

Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 2010) (holding 

that the credible threat of suffering a legally-actionable harm in the future 

constitutes an injury-in-fact); Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 

634 (7th Cir. 2007) (“As many of our sister circuits have noted, the injury-in-

fact requirement can be satisfied by a threat of future harm.”); Friends of 

the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th 

Cir. 2000) (“[T]hreatened rather than actual injury can satisfy Article III 

standing requirements.”); Sierra Club, Lone Star Chapter v. Cedar Point 

Oil Co., 73 F.3d 546, 556 (5th Cir. 1993) (“That this injury is couched in 

terms of future impairment rather than past impairment is of no moment” 

as to whether there has been injury-in-fact.). 
38 See In re LIBOR-Based Fin. Instruments Antitrust Litig., 299 F. 

Supp. 3d 430, 593 (S.D.N.Y. 2018) (speculating that circuit precedent likely 

infers that the “injury” of constitutional standing does not necessarily sat-

isfy the “injury” of antitrust standing). 
39 See, e.g., Gelboim v. Bank of Am. Corp., 823 F.3d 759, 770 (2d Cir. 

2016); see also LIBOR-Based Litig., 299 F. Supp. 3d at 593; Linda S. Mul-

lenix, Complex Litigation: Antitrust Class Standing, 30 NAT’L. LAW J., 13 

(June 23, 2008). 
40 Mullenix, supra note 39. 



  

906 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

prevent and that flows from that which makes defendants’ 

acts unlawful.”41 Nonetheless, doctrinal confusion persists re-

garding the proper interpretation of the foregoing standard. 

Indeed, “the critical question is whether ‘injury’ in the anti-

trust context may be established through a single overcharge 

or whether ‘injury’ includes some conception of netting.”42 

Whereas some courts steadfastly contend that “antitrust in-

jury occurs the moment the purchaser incurs an overcharge, 

whether or not that injury is later offset[,]”43 others are “skep-

tical . . . that a single impacted payment is sufficient to estab-

lish antitrust injury[.]”44 The answer to this question not only 

implicates the meritoriousness of plaintiffs’ complaints on a 

substantive level, but also has consequences for the satisfac-

tion of certain procedural requirements in antitrust class ac-

tions.45 

B. Adequacy 

The netting inquiry that is the subject of debate in the “an-

titrust injury” context is potentially relevant to the class–ac-

tion context as well, particularly with regard to adequacy. 

 

41 Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 

(1977). 
42 LIBOR-Based Litig., 299 F. Supp. 3d at 593. 
43 Astrazeneca AB v. UFCW (In re Nexium Antitrust Litig.), 777 F.3d 

9, 27 (1st Cir. 2015); accord In re Zetia (Ezetimibe) Antitrust Litig., No. 2:18-

MD-2836, 2020 WL 5778756, at *17 (E.D. Va. 2020), R. & R. adopted, No. 

2:18MD2836, 2021 WL 3704727 (E.D. Va. Aug. 14, 2021) (“The overwhelm-

ing weight of authority rejects Defendants’ position.”); In re Thalomid & 

Revlimid Antitrust Litig., No. 14-6997, 2018 WL 6573118, at *14 (D.N.J. 

Oct. 30, 2018) (holding damages which a plaintiff later recovers “irrelevant 

to the question of impact”); In re Solodyn (Minocycline Hydrochloride) Anti-

trust Litig., 2017 U.S. Dist. LEXIS 170676, at *56 (D. Mass. Oct. 16, 2017) 

(ruling that even if class members were later reimbursed for a portion of 

their alleged overcharge they “still experienced antitrust injury in the form 

of an overcharge, although the amount of damages may require adjust-

ment”); In re Lidoderm Antitrust Litig., No. 14-md-2521, 2017 WL 679367, 

at *21–23 (N.D. Cal. Feb. 21 2017) (observing that class members were “in-

jured as of the date they paid the overcharges’”). 
44 LIBOR-Based Litig., 299 F. Supp 3d at 594. 
45 See infra Sections III.B–C. 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 907 

Among the threshold procedural elements that plaintiffs must 

satisfy in order to obtain class certification is a demonstration 

that the plaintiffs which represent the class and litigate its 

claims are adequate representatives of the absent class mem-

bers.46 The adequacy inquiry centers on the ascertainment of 

whether the representative parties are able to fairly and suf-

ficiently protect the interest of the class and its members, and 

it involves an investigation as to the “competency of class 

counsel and [the presence of] conflicts of interest.”47 Should 

the representative plaintiffs have interests that are antago-

nistic to those of other class members, those plaintiffs would 

be inadequate representatives, thereby defeating class certifi-

cation.48 Yet, in order to have those dispositive effects, those 

conflicting interests must be “fundamental.”49 A conflict is 

“fundamental” when it speaks to the heart of issues in ques-

tion “or where . . . some plaintiffs claim to have been harmed 

by the same conduct that benefited other members of the 

class.”50 

Given the salience of antagonistic interests in the ade-

quacy context, it is no surprise that “most” circuit courts of 

appeals have held that plaintiffs are not adequate represent-

atives of the class if they “benefit[ted] from the same acts al-

leged to be harmful to other members of the class.”51 This is 

 

46 FED. R. CIV. P. 23(a)(4). 
47 Id.; see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). 
48 Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d 

Cir. 2000). 
49 Allied Orthopedic Appliances, Inc. v. Tyco Healthcare Grp. L.P., 247 

F.R.D. 156, 177 (C.D. Cal. 2007). 
50 Id. 
51 Id. (quoting Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1280 

(11th Cir. 2000)). The District Court takes its conviction even further, con-

tending that, to its knowledge, “no circuit approves of class certification 

where some class members derive a net economic benefit from the very same 

conduct alleged to be wrongful by the named representatives of the class, 

let alone where some named plaintiffs derive such a benefit.” Allied Ortho-

pedic Appliances, 247 F.R.D. at 177. See also Valley Drug Co. v. Geneva 

Pharms., Inc., 350 F.3d 1181, 1190 (11th Cir. 2003). It is important to note 

that driving the Valley Drug court’s conclusion regarding adequacy and net 

beneficiaries was the fact that the demand of the product in question was 



  

908 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

because those class members who allegedly suffered net injury 

would have the incentive to maximize, as much as possible, 

the extent and scope of the defendant’s conduct. Yet, if that 

same conduct was, on net, beneficial to other members of the 

class, then such plaintiffs would have the incentive to mini-

mize, to the greatest degree possible, the magnitude of that 

very conduct so as to reduce, or even eliminate, the apparent 

lack of actionable injury.52 

There are, however, dissenters from this seeming consen-

sus regarding the adequacy, or lack thereof, of class represent-

atives who were net beneficiaries of the same conduct that re-

sulted in net injury for other class members, or vice versa.53 

Indeed, some courts have interpreted Supreme Court prece-

dent as establishing a special standard for the adequacy de-

termination in antitrust class actions. They find this prece-

dent to stand for the proposition that, since the overcharge 

itself is the cognizable harm, plaintiffs can recover if they were 

the subject of an overcharge, regardless of whether they expe-

rienced a net harm or net benefit.54 

 

inelastic such that even a drop in its price would not lead to elevated levels 

of sales. 
52 See In re LIBOR-Based Fin. Instruments Antitrust Litig., 299 F. 

Supp. 3d 430, 539 (S.D.N.Y. 2018) (“[N]amed plaintiffs with opposite net 

trading positions will have directly conflicting incentives to establish not 

only the existence but also the magnitude of any manipulation that occurred 

on those dates . . . the proposed class [thus] fails to meet Rule 23(a)(4)’s ad-

equacy of representation requirement.”). See also id. at 590. 
53 See Natchitoches Parish Hosp. Serv. Dist. v. Tyco Int’l, Ltd., 247 

F.R.D. 253, 266 (D. Mass. 2008) (noting that “Courts have been divided on 

[the] persuasiveness” of Valley Drug’s holding regarding adequacy and the 

presence of class members who benefitted, as well as class members who 

suffered injury, on net, as a result of the same conduct). 
54 In re Wellbutrin SR Direct Purchaser Litig., No. 04-5525, U.S. Dist. 

LEXIS 36719, at *25 (E.D. Pa. May 2, 2008) (citing Ill. Brick Co. v. Illinois, 

431 U.S. 720, 724–25 (1977) and Hanover Shoe v. United Shoe Mach. Corp., 

392 U.S. 481, 489 (1968) as supporting the notion that, with respect to ade-

quacy analyses and intraclass conflicts, “any economic benefits the whole-

salers experienced in the past are legally irrelevant.”). In Valley Drug, the 

11th circuit did not ignore the potential problems that Illinois Brick and 

Hanover Shoe posed to its holding, instead contending that those cases ap-

plied only to standing and damages determinations, and were inapplicable 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 909 

C. Predominance 

The predominance inquiry bears an especially close rela-

tionship to the underlying legal cause of action. In class ac-

tions in which plaintiffs seek monetary damages, in addition 

to satisfying the threshold requirements of Rule 23(a), plain-

tiffs must demonstrate that their claims share common issues 

of law or fact that predominate over those of an individual na-

ture, and that the class action is superior to other forms of 

pursuing the plaintiffs’ actionable claims.55 Therefore, in an 

antitrust class action, a court must consider whether common 

issues predominate with respect to each element of an anti-

trust claim, in short: antitrust violation, antitrust injury, and 

damages.56 This search for common issues is “far more de-

manding than the commonality requirement of Rule 23(a).”57 

Although, at the class certification stage, plaintiffs need 

not demonstrate the extent of their injuries in order to satisfy 

predominance, they must nonetheless “demonstrate that the 

element of antitrust impact is capable of proof at trial through 

evidence that is common to the class rather than individual to 

its members.”58 Unsurprisingly, then, a particularly conten-

tious aspect of the predominance analysis pertains to whether 

plaintiffs have sufficient issues in common in demonstrating 

antitrust injury. This becomes salient when the prospect of 

uninjured class members makes it less likely that plaintiffs 

can use common evidence to show common injuries, and more 

difficult for defendants to challenge such alleged injuries.59 

 

to the adequacy analysis that Fed. R. Civ. P. 23(a)(4) requires. See 350 F.3d 

at 1192. 
55 FED. R. CIV. P. 23(b)(3). 
56 In re Visa Check/Mastermoney Antitrust Litig., 280 F.3d 124, 136 

(2d Cir. 2001). 
57 Amchem Prod., Inc., v. Windsor, 521 U.S. 591, 623–24 (1997). 
58 In re Hydrogen Peroxide Antitrust Litig., 552 F. 3d 305, 311–12 (3d 

2008). 
59 See United Food & Commer. Workers Unions & Emplrs. Midwest 

Health Bens. Fund v. Warner Chilcott Ltd. (In re Asacol Antitrust Litig.), 

907 F.3d 42, 58 (1st Cir. 2018); Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294, 

302 (5th Cir. 2003); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 

311 (3d. Cir. 2008). Some courts are more focused on the impact of 



  

910 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

The issue is particularly pressing in the context of antitrust 

class actions, in which a central component of the underlying 

claim is itself a certain type of injury.60 Indeed, failing to 

screen a proposed class for uninjured members would allow 

for the perversion of an elemental principle of class actions: 

that such proceedings are aggregations of individual claims 

and not alternative vehicles for individual plaintiffs to bring 

suit.61 Furthermore, it is incumbent upon a district court “to 

make findings about predominance . . . before [certifying] the 

class.”62 A failure to do so is a “delegation of judicial power to 

the plaintiffs, who can obtain class certification just by hiring 

a competent expert,”63 which is a frightening prospect given 

the ease with which experts can give manipulative and mis-

leading testimony. Although the Supreme Court has outlined 

criteria with which to judge the credibility of expert wit-

nesses,64 there nonetheless remains a real risk that expert 

testimony can taint the certification process. This is especially 

the case given the judiciary’s relatively ill-suited position to 

preside over so-called “Daubert Inquir[ies]”65 in which they 

judge the merits of each side in a “battle of the experts” be-

tween plaintiffs’ and defense’s expert witnesses.66 Thus, as 

 

putatively uninjured class members on the class’ Article III standing vis-a-

vis the requirement that a class “be defined in such a way that anyone 

within it would have standing.” In re LIBOR-Based Fin. Instruments Anti-

trust Litig., 299 F. Supp. 3d 430, 593 (S.D.N.Y. 2018) (quoting Denney v. 

Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006)). See also Halvorson v. 

Auto-Owners Ins. Co., 718 F.3d 773, 779 (8th Cir. 2013) (citing Denney and 

seemingly adopting its Article III–centric analysis of putatively uninjured 

class members and the connection thereof to class certification). 
60 In re Asacol, 907 F.3d at 58; In re Hydrogen Peroxide, 522 F.3d at 

311. 
61 In re Asacol, 907 F.3d at 56. 
62 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 363 (2011) (emphasis 

added). 
63 West v. Prudential Sec., Inc., 282 F.3d 935, 938 (7th Cir. 2002). 
64 See Amorgianos v. Amtrak, 303 F.3d 256, 266 (2002). 
65 Id. 
66 See, e.g., Mathew G. Gibson, Exceptional Efficiencies: A Valuable De-

fense for Healthcare Mergers, 122 COLUM. L. REV. 1957, 1984–87, 1995 

(2022) (examining the uncertainty surrounding the adjudication of battles 

of the experts in the context of healthcare antitrust suits). 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 911 

with adequacy, the potential presence of uninjured class mem-

bers can be dispositive in a predominance inquiry. 

Relevant jurisprudence makes clear that, in many of the 

circuits, it is permissible for a class to have a de minimis pro-

portion of uninjured members.67 What constitutes a de mini-

mis proportion, however, is a source of much debate among 

those circuits. There has certainly been some guidance on the 

matter, and it seems that a class consisting of somewhere be-

tween five and six percent uninjured plaintiffs is the upper 

bound of the de minimis classification.68 It is important, how-

ever, to take note of the few courts that depart from the fore-

going majority approach. For example, the Ninth Circuit 

Court of Appeals, in a recent opinion, reversed an earlier hold-

ing and ruled that a class containing more than a de minimis 

proportion of uninjured plaintiffs does not, in and of itself, de-

feat predominance.69 Similarly, other courts have ruled that 

the lack of common evidence with which to demonstrate indi-

vidual damages claims, though a factor that militates against 

a finding of predominance, is not, by itself, sufficient to do so.70 

 

67 In re Rail Freight Fuel Surcharge Antitrust Litig. - MDL No. 1869, 

934 F.3d 619, 624–25 (D.C. Cir. 2019); Torres v. Mercer Canyons Inc., 835 

F.3d 1125, 1136 (9th Cir. 2016). 
68 In re Rail Freight Fuel Surcharge Antitrust Litig., 292 F. Supp. 3d 

14, 137 (D.C. Cir. 2017) (citing In re Lidoderm Antitrust Litig., 2017 U.S. 

Dist. LEXIS 24097, at *66 (N.D. Cal. 2017); In re Nexium (Esomeprazole) 

Antitrust Litig., 297 F.R.D. 168, 179 (D. Mass. 2013); Vista Healthplan, Inc. 

v. Cephalon. Inc., No. 06-1833, 2015 U.S. Dist. LEXIS 74846, at *65 (E.D. 

Pa. 2015)). The court thus ruled that a class, 12.7% of which consisted of 

uninjured plaintiffs, did not satisfy predominance. In re Rail Freight Fuel 

Surcharge Antitrust Litig., 292 F. Supp. 3d at 138. See also United Food & 

Commer. Workers Unions & Emplrs. Midwest Health Bens. Fund v. Warner 

Chilcott Ltd. (In re Asacol Antitrust Litig.), 907 F.3d 42, 45, 58 (1st Cir. 

2018) (reversing the certification of a class on the basis that ten percent 

thereof had not suffered an injury). 
69 Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 

F.4th 651, 669 (9th Cir. 2022). 
70 In re LIBOR-Based Fin. Instruments Antitrust Litig., 299 F. Supp. 

3d 430, 595 (S.D.N.Y. 2018). 



  

912 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

IV. TO NET, OR NOT TO NET? 

It is clear that the definition of “antitrust injury” that a 

court adopts can dispositively alter the trajectory of an anti-

trust class action. For the following reasons, a conception of 

antitrust injury that looks to net harm is, overall, the proper 

one. Yet despite the stakes that the foregoing matter impli-

cates, courts will nonetheless have to contend with net injury 

no matter which definition of antitrust injury they adopt. 

A. In Defense of the Irrelevancy of Offsetting Benefits 
to Antitrust Injury 

One can certainly make a convincing case that incorporat-

ing the net harm standard into the definition of antitrust in-

jury is inappropriate, especially prior to class certification, at 

which point the merits of a claim are not the subject of judicial 

scrutiny. To do so would place an unduly onerous burden on 

antitrust plaintiffs, thereby making it more difficult for such 

litigants to vindicate their claims against companies that have 

indeed run afoul of antitrust laws in the United States. Such 

a prospect may seem especially troubling given that some ob-

servers contend that there is an increasing concentration of 

market power in a select few large technology companies.71 

Doctrinally, there are reasons to be wary of defining antitrust 

injury through the net harm lens, as well as reasons to believe 

that courts would be skeptical of arguments that sought to de-

feat class certification on the basis of a class containing net 

beneficiaries of the conduct at issue. These bases are rooted in 

 

71 COUNCIL OF ECON. ADVISERS, ISSUE BRIEF: BENEFITS OF COMPETITION 

AND INDICATORS OF MARKET POWER (2016), https://obamawhitehouse.ar-

chives.gov/sites/default/files/page/files/20160502_competition_is-

sue_brief_updated_cea.pdf [https://perma.cc/xv5s-h7p6]; Lina M. Kahn, The 

End of Antitrust History Revisited, 133 HARV. L. REV. 1655, 1663 (2020) (re-

viewing TIM WU, THE CURSE OF BIGNESS: ANTITRUST IN THE NEW GILDED AGE 

(2018)). 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 913 

the functions that antitrust law serves, as well as procedural 

doctrines that are trans-substantive across all class actions.72 

1. The Goals of Antitrust Law 

To include a consideration of offsetting benefits in defining 

antitrust injury, one might argue, would unduly interfere 

with the ability of private defendants to, as the drafters of an-

titrust laws intended, play a sufficiently integral role in the 

enforcement of such statutes.73 The popular conception of pri-

vate antitrust plaintiffs is that they balance the statutory ob-

jectives of deterring potentially anticompetitive conduct and 

allowing injured parties to receive recompense for injuries 

that they suffered as a result of such conduct.74 One could 

make the case that it would be unduly difficult for private 

plaintiffs to fill that role were courts to limit the definition of 

antitrust injury to net injury. Indeed, a myopic interpretation 

of antitrust injury that makes it more difficult to bring anti-

trust suits supersedes any disagreements about the role of pri-

vate antitrust suits in the statutory scheme, since it would 

implicate private antitrust suits regardless of their role in the 

enforcement regime.75 It is therefore easy to see why, regard-

less of whether one promotes deterrence or compensation as 

the primary goal of private antitrust actions, many would take 

 

72 See supra Section III.B. See also In re Delta/AirTran Baggage Fee 

Antitrust Litig., 317 F.R.D. 675, 696 (N.D. Ga. 2016). See also LIBOR-Based 

Litig., 299 F. Supp. 3d at 590. 
73 See Blue Shield of Va. v. McCready, 457 U.S. 465, 472 (1982) (citing 

Pfizer Inc. v. India, 434 U.S. 308, 312 (1978)) (concluding that, in drafting 

the antitrust laws, “Congress sought to create a private enforcement mech-

anism[.]”). 
74 William H. Page, The Scope of Liability for Antitrust Violations, 37 

STAN. L. REV. 1445, 1451 (1985). The Supreme Court has consistently af-

firmed this sentiment. See, e.g., Am. Soc’y of Mech. Eng’rs, Inc. v. Hydrolevel 

Corp., 456 U.S. 556, 572 n.10 (1982) (“Congress created the treble-damages 

remedy . . . [to] encourag[e] private challenges to antitrust violations. These 

private suits provide a significant supplement to the limited resources avail-

able to the Department of Justice for enforcing the antitrust laws and de-

terring violations.”) (citing Reiter v. Sonotone Corp., 442 U.S. 330, 344 

(1979)). 
75 See, e.g., Page, supra note 74, at 1451–52. 



  

914 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

issue with the consideration of net harm in the antitrust 

standing analysis. The more difficult it is to establish stand-

ing—a result which would naturally flow from applying a net 

harm standard for antitrust injury—the less likely it is for 

plaintiffs’ suits to succeed, or even survive.76 There would 

thus be a concern that this heightened standard would lead to 

excessive declines in the frequency and potency of private an-

titrust suits that have been integral in policing anticompeti-

tive behavior.77 

It is unsurprising, then, that prevailing judicial doctrines 

impose a far more accommodating standard for demonstrating 

antitrust injury during class pre-certification than for sub-

stantiating the alleged quantum of damages following a plain-

tiff–friendly disposition of the question of liability.78 Courts 

have recognized that “plaintiffs often cannot prove the 

amount of damages suffered as confidently as they can prove 

the fact of injury[]”79 and that “[t]he vagaries of the market-

place usually deny us sure knowledge of what plaintiff’s situ-

ation would have been in the absence of the defendant’s anti-

trust violation.”80 Indeed, “a defendant whose wrongful 

conduct has rendered difficult the ascertainment of the pre-

cise damages suffered by the plaintiff, is not entitled to 

 

76 See In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 

524 (S.D.N.Y. 1996). 
77 See Am. Soc’y of Mech. Eng’rs, Inc. 456 U.S. at 572 n.10 (“Congress 

created the treble-damages remedy . . . [to] encourag[e] private challenges 

to antitrust violations[, thereby]. . . significant[ly] supplement[ing] . . . the 

limited resources available to the Department of Justice for enforcing the 

antitrust laws and deterring violations.”) (quoting Reiter v. Sonotone Corp., 

442 U.S. 330, 344 (1979)); cf. Gelboim v. Bank of Am. Corp., 823 F.3d 759, 

774 (2d Cir. 2016) (“Whatever economic justification particular price-fixing 

agreements may be thought to have . . . They are . . . banned because of their 

actual or potential threat to the central nervous system of the economy.”) 

(emphasis in original) (quoting United States v. Socony-Vacuum Oil Co., 

310 U.S. 150, 224 n.59 (1940)). 
78 HOVENKAMP & AREEDA, supra note 2, ¶ 340a. 
79 Roger D. Blair & William H. Page, Resale Price Maintenance and the 

Private Antitrust Plaintiff, 83 Wash. U.L.Q. 657, 672 (2005). 
80 J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 566 

(1981). 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 915 

complain that they cannot be measured with the same exact-

ness and precision as would otherwise be possible.”81 

2. Class Action Procedures 

There are also legitimate reasons as to why an antitrust 

class would likely prevail, particularly with respect to ade-

quacy and predominance, in a court’s consideration of the 

class’ motion for certification, regardless of whether that class 

contains net beneficiaries of the conduct at issue. Indeed, alt-

hough there would exist some conflicts of interest among class 

members who were net beneficiaries of, and those who suf-

fered net injury from, the same conduct, it is not universally 

the case that such conflicts are sufficient to defeat adequacy 

or predominance. Although there is a great number of courts 

which would hold such conflicts to be sufficiently fundamen-

tal, there are courts that disagree with that position.82 

In a broader sense, many courts take issue with what they 

see as an inappropriate consideration of the merits of a claim 

at the pleading stage.83 Despite recent changes in class action 

jurisprudence guiding this procedural element,84 these critics 

note that the prevailing standard directs courts to look at the 

plausibility, and not the merits, of a class action claim when 

making evaluations thereof at the pleading stage.85 

B. Why Offsetting Benefits are Relevant to Antitrust 
Injury 

Despite any arguments to the contrary, however compel-

ling, courts should be more willing to analyze antitrust injury 

with reference to net harm. The concept of using net harm as 

 

81 Eastman Kodak Co. v. S. Photo Materials Co., 273 U.S. 359, 379 

(1927). 
82 See supra, Section III.B. See also In re LIBOR-Based Fin. Instru-

ments Antitrust Litig., 299 F. Supp. 3d 430, 590 (S.D.N.Y. 2018). 
83 See, e.g., Estrada v. Bashas’ Inc., No. CV-02-00591-PHX-RCB, 2014 

U.S. Dist. LEXIS 44544, at *15–*16 (D. Ariz. Apr. 1, 2014). 
84 See infra note 111. 
85 See In re High-Tech Emp. Antitrust Litig., 289 F.R.D. 555, 567 (N.D. 

Ca l. 2013) (citing examples of courts with this perspective). 



  

916 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

a standard for antitrust injury is not novel, as even in anti-

trust class actions courts espouse such an approach despite 

the fact that net harm is at the center of damages calculations 

in such cases. Indeed, damages and injuries are, across many 

areas of law, concepts with an inextricable link that arguably 

bespeaks the use of the same standards when evaluating each 

component in the antitrust context. In addition, implementing 

the net harm standard as an evaluative basis for antitrust in-

jury advances the optimal deterrence that seems to have been, 

and continues to be, the intended primary aim of antitrust 

laws. Even for those who contend that antitrust damages 

serve a primarily compensatory function, the aforementioned 

link between injuries and damages, which is even stronger in 

the compensatory context, makes a compelling case for using 

the net harm standard for antitrust injury. 

From a practical point of view, there are indications that 

the sheer frequency of antitrust class actions, given the im-

mense scope and duration of such suits, has in recent years 

inundated federal district courts thereby engendering judicial 

inefficiencies. Adjacent to this consideration is the fact that 

class certification often serves as the “death knell” of a class 

action, placing particular pressure on defendants to settle 

thereafter. Moreover, despite the sincerity of those who har-

bor them, concerns regarding the adoption of a more demand-

ing approach to defining antitrust injury seem to be over-

stated. The practical realities of litigating class actions of all 

types suggest that, from a procedural perspective, relatively 

recent jurisprudential developments sanction, and in some in-

stances encourage, the consideration of some merits issues 

prior to class certification. 

Interestingly enough, despite the foregoing debates, courts 

will need to implement principles pertaining to netting harms 

against benefits when evaluating proposed antitrust classes, 

regardless of whether they do so with respect to defining an-

titrust injury. Yet, there is a number of potential solutions to 

the foregoing issues other than adopting the net harm stand-

ard that some courts use for antitrust injury. Their relative 

merits, however, are beyond the scope of this Note. 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 917 

1. Doctrinal Consistency and Statutory Goals 

It is important to note that using net harm to inform anti-

trust injury is not a novel concept. In fact, in many contexts, 

courts have embraced exactly such an approach. Nor is it an 

unprecedented means of defining injury in other similar ac-

tions. Indeed, given the close relationship between injury and 

damages across many areas of law, there is a reasonable basis 

for contending that, just as antitrust damages may only reflect 

net harm, so too should antitrust injury. Moreover, the use of 

the net harm standard in defining antitrust injury in many 

ways serves to advance the intent undergirding the antitrust 

laws, regardless of whether one believes that deterrence or 

compensation is the primary goal thereof. 

Supreme Court jurisprudence makes clear that, for inju-

ries of an economic character, damages “shall be equal to the 

injury” and that “[t]he latter is the standard by which the for-

mer is to be measured.”86 Indeed, since antitrust damages are 

of an undoubtedly-economic character, it reasonably follows 

that they may only reflect the net harm that a plaintiff suffers 

as a result of anticompetitive behavior.87 So too is the concept 

of antitrust injury a “legal construction that has an economic 

foundation.”88 Therefore, it appears that courts should use an-

titrust injuries to measure damages since “[a]ntitrust injury 

analysis is a necessary first approximation” thereof.89 As 

such, because “an antitrust damage assessment cannot be di-

vorced from . . . the rationale for liability and [its] internal 

logic,” a plaintiff whose offsetting “benefit equaled or 

 

86 Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (quoting 

Wicker v. Hoppock, 73 U.S. 94, 99 (1867)). 
87 Roger D. Blair & William H. Page, Speculative Antitrust Damages, 

70 WASH. L. REV. 423, 424 (1995). See also L.A. Mem’l Coliseum Comm’n. v. 

Nat’l Football League, 791 F.2d 1356, 1366–68 (9th Cir. 1986.) (“An anti-

trust plaintiff may recover only to the ‘net’ extent of its injury.”). See also 

Sonterra Cap. Master Fund Ltd. v. Credit Suisse Grp. AG, 277 F. Supp. 3d 

521, 563 (S.D.N.Y. 2017). 
88 HOVENKAMP & AREEDA, supra note 2, at ¶ 391. 
89 Page, supra note 74, at 1461–62. 



  

918 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

exceeded” the injury did not suffer net harm “and hence is not 

eligible for [Clayton Act] section 4 benefits.”90 

At a minimum, there are certainly instances in which net-

ting guides the antitrust injury inquiry. Indeed, decisions by 

a variety of courts make clear that the “[]relevance of off-

set[ing benefits to antitrust injury] stems directly from the na-

ture of an overcharge[.]”91 Although there are contexts in 

which courts have deemed offsetting benefits irrelevant to an-

titrust injury,92 there are also instances in which the opposite 

is true. A particularly salient example of the latter is the “ty-

ing” antitrust suit; these actions involve accusations that a 

dominant market player tied a consumer’s purchase of a pri-

mary product with the concomitant purchase of a secondary 

product that the same company sells but which the consumer 

would not otherwise have purchased. With respect to these 

suits, many courts have held that, in order to demonstrate in-

jury, a plaintiff must show that it suffered a net economic loss 

from the sum of the prices of the tied products relative to mar-

ket prices.93 Albeit in the summary judgement phase of the 

litigation, the Supreme Court held that a conspiracy to 

 

90 Phillip Areeda, Antitrust Violations without Damage Recoveries, 89 

HARV. L. REV. 1127, 1138–39 (1976). 
91 In re Delta/AirTran Baggage Fee Antitrust Litig., 317 F.R.D. 675, 

685 (N.D. Ga. 2016) (citing Astrazeneca AB v. UFCW (In re Nexium Anti-

trust Litig.), 777 F.3d 9, 27 (1st Cir. 2015)). For an opposing perspective on 

the relevance of offsetting benefits to the context that the foregoing cases 

implicate—an overcharge—see In re LIBOR-Based Fin. Instruments Anti-

trust Litig., 299 F. Supp. 3d 430, 594 (S.D.N.Y. 2018) (“[W]e are skeptical 

of In re Nexium’s holding that a single impacted payment is sufficient to 

establish antitrust injury, both as a general matter and as specifically ap-

plied to this action.”). 
92 In re Delta/AirTran, 317 F.R.D. at 685. 
93 HOVENKAMP & AREEDA, supra note 2, at ¶ 340c1 (citing Collins v. Int’l 

Dairy Queen, 59 F. Supp. 2d 1312 (M.D. Ga. 1999); then citing Kypta v. 

McDonald’s Corp., 671 F.2d 1282, 1285 (11th Cir.), cert. denied, 459 U.S. 

857 (1982) (“[I]njury resulting from a tie-in must be shown by establishing 

that. . . .plaintiff indeed suffered net economic harm[.]”); and then citing 

Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 712 (11th Cir. 

1984)). See also Herbert Hovenkamp, Tying Arrangements and Class Ac-

tions, 36 VAND. L. REV. 213, 218, 226–27 (1983). See also Page, supra note 

74, at 1482 (“[A] tie cannot cause antitrust injury to competitors[.]”). 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 919 

manipulate prices “would . . . violate the Sherman Act, but it 

could not injure respondents[, who] stand to gain from any 

conspiracy to raise the market price.”94 

To use antitrust injury as a metric for damages also ad-

vances the goals which the drafters of the antitrust laws 

hoped to further, irrespective of whether one believes that the 

intention behind such laws is deterrence or the compensation 

of injured parties. Those in the former camp tend to couch 

their claims in economic terms, contending that “the primary 

purpose of . . . antitrust injury [is] to keep damages . . . related 

to the . . . costs of violations in order to avoid overdeterrence” 

and promote market efficiency.95 This theory of “optimal de-

terrence” holds that the salient function of antitrust law is to 

“maximize economic efficiency . . . by . . . preserv[ing] . . . com-

petitive markets.”96 Those of the latter persuasion see the pri-

vate antitrust remedy as a tool by which injured parties can 

receive compensation for the injuries they sustained as a re-

sult of anticompetitive conduct. Accordingly, those in this 

group contend, although private antitrust damages have “an 

important role in . . . deterring wrongdoing,” their principal 

function is to serve as a compensatory remedy, as is clear by 

the fact that they are “available only to injured parties.”97 For 

those who believe that antitrust remedies are primarily deter-

rent, linking antitrust injury to net harm furthers that role by 

ensuring that there are sufficient barriers to bringing a pri-

vate antitrust suit so as to prevent inefficient overdeterrence. 

Moreover, given the close link between injury and remedies, 

the position that antitrust damages are primarily 

 

94 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

582–83 (1986). 
95 Page, supra note 74, at 1463. See also Blair & Page, supra note 79, 

at 668 (“The doctrine [of antitrust standing] has an economic rationale[,] 

restrict[ing] the universe of compensable claims to those that form a part of 

the optimal penalty, and . . . concentrat[ing] the right to recover in those 

who can most efficiently identify the antitrust violation and seek redress.”). 
96 Page, supra note 74, at 1451. Cf. Holmes v. Sec. Investor Prot. Corp., 

503 U.S. 258, 269–70 (1992) (framing the wisdom of requiring a proximate 

causal link between antitrust injury and damages in terms of deterrence). 
97 Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485–86 

(1977). 



  

920 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

compensatory reflections of net harm lends itself to the con-

clusion that antitrust injury should also reflect such a com-

pensatory nature, even if proof thereof is subject to lesser evi-

dentiary requirements.98 

2. Practical Realities 

Viewing the definition of antitrust injury through the lens 

of statutory goals implicates the practical realities of antitrust 

class actions, which themselves suggest the prudence of plac-

ing further barriers to bringing such suits than currently ex-

ist. Indeed, a look at certain data helps to clarify the strain 

that the sheer scope and duration of antitrust class actions 

place on the federal judiciary. A rather sizeable portion of all 

antitrust class actions that reached a settlement from 2009 to 

2021 took over three years from the date of filing to do so; the 

percentage of all antitrust class actions that took over five 

years to settle was also large.99 The mean time for an antitrust 

case to go from filing to settlement has similarly risen precip-

itously during the same period.100 So too has the median time 

from filing an antitrust class action to settling it remained el-

evated in recent years, especially relative to other federal 

class actions.101 Over the last several decades, this yawning 

gap has increased each year.102 Concurrently, plaintiffs’ attor-

neys have raised the costs of representation,103 and the 

 

98 See HOVENKAMP & AREEDA, supra note 2, at ¶ 340a. 
99 JOSHUA DAVIS, UC HASTINGS COLL. OF THE L. & ROSE KOHLES CLARK, 

HUNTINGTON NAT’L. BANK, 2021 ANTITRUST ANNUAL REPORT: CLASS ACTIONS 

IN FEDERAL COURT 8 fig. 4 (2021). 87% took at least 3 years from the date of 

filing to settlement, and 54% of all antitrust cases took at least 5 years. 
100 Id. There was a 40% increase in that figure during the period in 

question. 
101 Christine P. Bartholomew, Antitrust Class Actions in the Wake of 

Procedural Reform, 97 IND. L. J. 1315, 1349 (2022). The median time from 

filing to settlement in antitrust class actions was 4.41 years between 2005 

and 2020, 44.16 months longer than medians across all other federal civil 

actions. Bartholomew interprets this data, among others, as suggesting a 

need to make it easier, rather than more difficult, to bring class actions. 
102 Id. at 1350. 
103 Id. at 1351 fig. K. From 2005 to 2020, the average attorneys’ fees 

per settlement grew at an annual rate of 13%. 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 921 

median antitrust settlement payout reached a recent high in 

2021.104 

These contemporary trends among antitrust class actions 

are potentially concerning, all the more so in light of the in-

herent risk for perverse incentives to prompt plaintiffs to 

bring class actions, and the increased leverage that class cer-

tification gives to a class in extracting a settlement. Indeed, 

some commentators have argued that the mandate for treble 

damages in private antitrust actions might incentivize parties 

to seek out firms which they believe are acting in an anticom-

petitive manner, since the expected damages outweigh the 

costs that those parties would suffer as a result of exposure to 

that anticompetitive behavior.105 Adjacent to this concern is 

that which stems from the increased leverage that class certi-

fication provides a class. Such increased leverage will further 

incentivize plaintiffs to bring antitrust class actions so as to 

extract a settlement, regardless of the claims’ merits.106 Some 

have also contended that to make the standards for class cer-

tification unduly permissive would violate § 2027(b) of the 

Rules Enabling Act by imprudently certifying classes and giv-

ing the resulting leverage to classes that are not otherwise de-

serving thereof.107 

Adopting a net harm standard for antitrust injury would 

not subvert the intended functions of the antitrust laws. More-

over, for a court to consider certain factors that a net harm 

analysis might necessitate is entirely consonant with recent 

class action procedural jurisprudence. At a basic level, to deny 

certification to a class with both net beneficiaries and those 

who suffered net harm would not foreclose the option for those 

 

104 DAVIS & KOHLLES, supra note 99, at 13 fig. 9. The median figure of 

$16 million per settlement was the highest among the years dating back to 

2009. 
105 See, e.g., William Breit & Kenneth G. Elzinga, Private Antitrust En-

forcement: The New Learning, 28 J.L & ECON. 405, 430 (1985). 
106 See cases cited supra note 27. 
107 Kelly J. Bozanic, Striking an Efficient Balance: Making Sense of An-

titrust Standing in Class Action Certification Motions, 16–17 (Soc. Sci. Rsch. 

Network Elec. Paper Collection, Penn State Legal Stud. Rsch. Paper No. 17-

2010), https://ssrn.com/abstract=1556016 [https://perma.cc/R69T-YYB3]. 



  

922 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

who suffered net harm to bring a separate suit, either individ-

ually or as a class, and thereby serve as private attorneys gen-

eral.108 Indeed, “[f]ewer plaintiffs with more at stake would be 

more likely to sue than a larger number of plaintiffs with less 

at stake.”109 There is also reason to doubt those who contend 

that to ascertain, at the certification stage, whether a plaintiff 

suffered net harm would require an inappropriate considera-

tion of the merits of the plaintiffs’ claims. Recent jurispruden-

tial developments pertaining to the procedural elements of 

class certification offer support for the notion that, when nec-

essary, a court may consider matters that speak to the merits 

of a claim when deciding whether to certify a class. Although 

courts cannot “engage in free-ranging merits inquiries at the 

certification stage,”110 they must nonetheless conduct a “rig-

orous analysis . . . [which] will frequently entail ‘overlap with 

the merits of the plaintiff’s underlying claim.’”111 There thus 

seems to be some validity to the District Court for the South-

ern District of New York’s (SDNY) skepticism of other courts’ 

holdings “that a single impacted payment is sufficient to es-

tablish antitrust injury.”112 

 

108 See Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1194 

(11th Cir. 2003). There is also reason to doubt the presupposition that to 

adopt a net harm standard for antitrust injury would necessarily preclude 

class certification. See In re LIBOR-Based Fin. Instruments Antitrust Litig., 

299 F. Supp. 3d 430, 595 (S.D.N.Y. 2018) (concluding that, even if such a 

standard for net harm were adopted, it would not defeat predominance). 
109 Joshua P. Davis & David F. Sorensen, Chimerical Class Conflicts in 

Federal Antitrust Litigation: The Fox Guarding the Chicken House in Valley 

Drug, 39 U.S.F. L. Rev. 141, 146 (2004). See also Bozanic, supra note 107, 

at 12 n.66. 
110 Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 

(2013). 
111 Comcast Corp. v. Behrend, 569 U.S. 27, 33-34 (2013) (quoting Wal-

Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)). See also In re Rail 

Freight Fuel Surcharge Antitrust Litig. - MDL No. 1869, 934 F.3d 619, 626 

(D.C. Cir. 2019) (“[D]istrict courts considering class certification [may not] 

defer questions about the number and nature of any individualized inquir-

ies that might be necessary to establish liability.”). 
112 In re LIBOR-Based Fin. Instruments Antitrust Litig., 299 F. Supp. 

3d 430, 594 (S.D.N.Y. 2018). 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 923 

C. The Persistent Relevance of Netting 

That a court has, in evaluating antitrust injury, decided to 

forego the adoption of the net harm standard does not neces-

sarily permit that court to disregard netting considerations 

before certifying a class. Antitrust standing, although it does 

not require a plaintiff to produce evidence of the precise quan-

tum of damages, nonetheless demands that a plaintiff provide 

a degree of indication thereof. So too in an adequacy analysis, 

regardless of how a court defines antitrust injury, do many 

courts still evaluate whether a class with net beneficiaries and 

those who suffered net harm have conflicting interests, in 

which case the representative plaintiffs would be inadequate. 

Defining “antitrust injury” is an element of the antitrust 

standing analysis, a component of which is a showing that the 

plaintiff has suffered a cognizable injury and “some indication 

of the amount of damage.”113 There is general agreement that, 

although a damages award should reflect net harm, at the 

pleading stage, a plaintiff, especially in the antitrust context, 

need not demonstrate the precise amount in allegedly-de-

served damages to satisfy the requirement.114 However, at the 

same time, a plaintiff cannot engage in “guesswork” to provide 

an indication of damages, and must instead use relevant data 

to provide a “just and reasonable estimate” thereof.115 It 

would appear, then, that in order to provide a “just and rea-

sonable” estimate of a damages figure that contemplates net 

injury, many, if not all, plaintiffs must engage in at least some 

calculations of net harm in order to give a sufficient indication 

of damages. 

So too do some courts adopt more nuanced approaches to 

analyzing the adequacy of representative plaintiffs that, in 
 

113 Terrel v. Household Goods Carriers’ Bureau, 494 F.2d 16, 20 (5th 

Cir. 1974). 
114 See Minpeco, S.A. v. Conticommodity Serv. Inc., 676 F. Supp. 486, 

490–91 (S.D.N.Y. 1987); see also In re Solodyn (Minocycline Hydrochloride) 

Antitrust Litig., No. 14-md-02503, 2017 U.S. Dist. LEXIS 170676, at *56–

57 (D. Mass. Oct. 16, 2017); see also Bell Atl. Corp. v. AT&T Corp., 339 F.3d 

294, 302 (5th Cir. 2003). 
115 Bell Atl. Corp., 339 F.3d at 303 (quoting Eleven Line, Inc. v. North 

Texas State Soccer Ass’n, 213 F.3d 198, 206–08 (5th Cir. 2000)). 



  

924 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

some instances, do not focus on antitrust injury at all. Indeed, 

SDNY has held that, although a class’ inclusion of those who 

took conflicting trading positions was sufficient to establish 

the presence of a conflict among class members, such a conflict 

was not so fundamental as to defeat adequacy of representa-

tion.116 Similarly, the Court of Appeals for the 11th Circuit 

has held that “net economic gain [cannot] be ignored or over-

looked by a court when determining whether Rule 23 has been 

satisfied[,]” and remanded a case for discovery on whether 

some class members were net beneficiaries.117 Furthermore, 

it is apposite to note that this approach to analyzing adequacy 

is not unique to the antitrust context.118 

Answering questions pertaining to netting is a rather in-

volved endeavor. Therefore, in light of the seemingly inescap-

able need to evaluate net harm in antitrust class certification 

proceedings, it is appropriate to recognize some devices that 

offer promise in facilitating courts’ informed navigation of 

these issues. Among them is the pre-certification, “down-

stream discovery” that some scholars embrace and which the 

Court of Appeals for the 11th Circuit implemented in order to 

 

116 LIBOR-Based Litig., 299 F. Supp. 3d at 590. The court later indi-

cated that, had the antitrust plaintiffs seeking class certification in that 

case (known as “LIBOR VII”) been on opposite sides of the same trades, it 

would have found there to be a fundamental conflict among class members. 

Id.; see also In re Foreign Exch. Benchmark Rates Antitrust Litig., 407 F. 

Supp. 3d 422, 439 (S.D.N.Y. 2019) (“[The oppositional trading positions 

taken by the Named Plaintiffs and class members would create fundamen-

tal conflicts that preclude class certification.”). 
117 Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1187, 93 

(11th Cir. 2003); see also In re Delta/AirTran Baggage Fee Antitrust Litig., 

317 F.R.D. 675, 684–685 (N.D. Ga. 2016). In both of the foregoing cases, the 

courts found net harm to be germane to the adequacy analysis, but irrele-

vant to establishing antitrust injury. 
118 See Bieneman v. City of Chic., 864 F.2d 463, 465 (7th Cir. 1988) 

(denying certification, in a case sounding in takings and state tort law, of a 

class of all landowners near an airport because, while plaintiffs alleged that 

the airport’s proximity decreased the value of their land, other landowners 

tremendously benefitted from such proximity); see also LIBOR-Based Litig., 

299 F. Supp. 3d at 551 (employing the same net harm standard for analyz-

ing the adequacy of class representatives in a class action involving allega-

tions of Commodity Exchange Act violations). 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 925 

ascertain whether, and to what extent, there existed net ben-

eficiaries, in the class; courts which find net harm to be the 

standard for antitrust injury could make use of the same 

tool.119 After all, class certification is a “litigation within the 

litigation”120 in which a separate discovery might be appropri-

ate. Others, noting the relative similarities between antitrust 

and securities fraud theories of liability,121 have suggested 

that, as in cases involving the latter, there should be a rebut-

table presumption, or the opportunity to give rebuttable testi-

mony, that the plaintiffs suffered net harm.122 The relative 

merits of these instruments, however, are beyond the scope of 

this Note. 

V. FINANCIAL MARKETS: A CASE STUDY 

Financial markets offer a particularly compelling context 

in which to examine the foregoing matters. Financial markets 

often involve dynamics that are typical of other areas of 

 

119 Valley Drug Co., 350 F.3d at 1195; 317 F.R.D. at 684–85; Stone & 

Nourafchan, supra note 30, at 3; Bozanic, supra note 107, at 14. 
120 Bozanic supra note 107, at 14 (quoting H. Laddie Montague, Man-

aging Principal, Berger & Montague, P.C., Address to Penn State U., Dick-

inson Sch. of L. (Apr. 6, 2009)). 
121 See Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 

154, 188–89 (3d Cir. 2001); Jane Getker Parks, Contribution among Anti-

trust Defendants, 33 VAND. L. REV. 979, 986 (1980). Cf. Schwab v. Philip 

Morris USA, Inc., 449 F. Supp. 2d 992, 1057 (E.D.N.Y. 2006) (identifying 

RICO, antitrust, and securities fraud actions as creatures of “the common 

law of fraud and deceit”); cf. Christopher R. Leslie, Den of Inequity: The Case 

for Equitable Doctrines in Rule 10b-5 Cases, 81 CALIF. L. REV. 1587, 1642 n. 

319 (1993) (“[T]he common law for securities fraud has often followed the 

lead of antitrust adjudication.”); cf. Stanton Wheeler, David Weisburd, Elin 

Waring, Nancy Bode, White Collar Crimes and Criminals, 25 AM. CRIM. L. 

REV. 331, 343 (1988) (grouping antitrust and securities fraud offenses to-

gether on the basis that each involves complex behavior that is patterned 

and repetitive and that each consists of several people acting in an orga-

nized conspiracy). 
122 See Astrazeneca AB v. United Food and Commercial Workers Un-

ions and Employers Midwest Health Benefits Fund (In re Nexium Antitrust 

Litig.), 777 F.3d 9, 20 (1st Cir. 2015); cf. In re Playmobil Antitrust Litig., 35 

F. Supp. 2d 231, 249 (E.D.N.Y. 1998) (“[I]f there is to be an error made, let 

it be in favor and not against the maintenance of the class action[.]”). 



  

926 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

commerce, where participants bid on a product and then ask 

a higher price from consumers, thereby profiting on what is 

known as the “bid-ask spread.”123 However, participation in 

financial markets can also take the form of providing a plat-

form upon which both buyers and sellers can transact, or the 

provision of information that other participants find useful for 

pricing certain products. This variety of models for participa-

tion in financial markets has implications for the application 

of antitrust laws to entities and products in that space. As 

such, courts must be particularly attuned to the nature of an 

antitrust defendant’s alleged conduct in financial markets in 

order to distill the appropriate doctrinal approach, an en-

deavor that is complicated by the often-complex nature of 

those areas. Judicial application of antitrust law and prece-

dent in this area is therefore a rather substantive instantia-

tion of the need to engage in context-specific analyses involv-

ing the definition of antitrust injury and the relevance of 

netting thereto. Furthermore, the potential for intraclass con-

flicts, regardless of whether net harm is the standard for an-

titrust injury, that implicate the adequacy of representation 

is especially pronounced with respect to the platforms and 

pricing data that many participants in financial markets pro-

vide. So too are the stakes in these matters usually large, 

thereby heightening the risk that class certification will sound 

the death knell of the litigation, or that the denial thereof will 

deprive those with meritorious claims of legal recourse for 

their legitimate injuries. 

A. The Bid-Ask Spread as a Price 

Much like retailers serve as market makers by bringing 

products to market and giving consumers the opportunity to 

purchase them, so too are there intermediaries in financial 

 

123 Andrew Bloomenthal, Market Maker Definition: What it Means and 

How They Make Money, INVESTOPEDIA (Dec. 17, 2023), https://www.in-

vestopedia.com/terms/m/marketmaker.asp#:~:text=Market%20mak-

ers%20earn%20a%20profit%20through%20the%20spread%20be-

tween%20the,risk%20of%20holding%20the%20assets 

[https://perma.cc/5NJT-WDPJ]. 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 927 

markets who execute the same function. “Market makers” is 

the precise term for these entities in financial markets and, 

just like retailers in more traditional markets, they also earn 

a profit by bidding on products at a certain price and then ask-

ing consumers to pay a higher price for those products.124 This 

so-called “bid-ask spread,” then, is essentially a price that 

these market makers charge for their services, and which var-

ies among the products that they offer.125 As in the conven-

tional retail context, the wider the spread, the worse it is for 

both producer—which must sell its product to the market 

maker for less—and the consumer—who must pay the market 

maker more for the product. Market makers thus compete 

with one another by offering narrower bid-ask spreads to at-

tract both producers and consumers.126 Therefore, in antitrust 

suits involving allegations of bid-ask spread manipulation, 

those who are wary of universally applying the net harm 

standard to antitrust injury have a strong case that, in such 

suits, net harm should be irrelevant to antitrust injury. This 

is because the nature of the overcharge that would result from 

manipulating the bid-ask spread would be akin to “a more con-

ventional antitrust case [in which] an inflated price [that] im-

pacts immediately only the sales occurring at that price (or at 

prices based on that price).”127 

Despite the foregoing, it is interesting to note that the net 

harm standard would be relevant to instances in which par-

ties allegedly manipulated bid-ask spreads so as to narrow 

them, in which case those on each side of the spread would be 

beneficiaries of defendants’ conduct. However, since a “narrow 

spread” is, among other factors, “strongly indicat[ive] . . . [of] 
 

124 Id. 
125 Simmtech Co. v. Barclays Bank PLC (In re Foreign Exch. Bench-

mark Rates Antitrust Litig.), 74 F. Supp. 3d 581, 594–95 (S.D.N.Y. 2015) 

(“[T]he Fix, [i.e., the bid-ask spread in foreign exchange transactions,] . . . is 

a price.”). 
126 Id. at 587 (“While ‘dealers are incentivized to quote wider bid-ask 

spreads,’ competition among them ‘narrows bid-ask spreads’.”). 
127 In re LIBOR-Based Fin. Instruments Antitrust Litig., 299 F. Supp. 

3d 430, 593 (S.D.N.Y. 2018) (contrasting LIBOR, a benchmark rate that is 

a component in the price of many other instruments, with a pharmaceutical 

product that consumers purchase at a specific price). 



  

928 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

an efficient market[,]” such a thought-provoking hypothetical 

is beyond the scope of this Note.128 

1. The Unique Benchmark Rate 

In contrast to a bid-ask spread, a benchmark serves as a 

datum that market participants use to fashion the terms of 

their interactions. A common input into pricing or setting the 

terms of transactions in financial markets is a measure, that 

is, a benchmark, that gives market participants a sense of the 

terms and prices that the largest financial institutions in 

global markets experience. Before its recent retirement, the 

London Interbank Offering Rate (LIBOR) was a daily bench-

mark that was a composite of the rates at which certain sys-

temically integral banks estimated they could borrow funds. 

LIBOR was “the primary benchmark for short term interest 

rates globally,” and commonly served as a measure to which 

market participants pegged spreads, as well as other fixed and 

variable pricing components of financial instruments. LIBOR 

“affected the pricing of trillions of dollars’ worth of financial 

transactions.”129 Therefore, unlike prices in conventional an-

titrust cases,130 the single decision of determining LIBOR 

“necessarily diffuses to numerous instruments[,]”131 thereby 

making it far more difficult to isolate the effects “of a change 

in LIBOR . . . in the same way [that] the overcharge of a typi-

cal price-fixed product such as a book[]”132 would be. Conse-

quently, unlike in those involving LIBOR, in antitrust cases 

involving traditional prices, “subsequent offsetting under-

charges on subsequent purchases result from transactions 

 

128 Billhofer v. Flamel Techs., S.A., 281 F.R.D. 150, 160 (S.D.N.Y. 

2012). 
129 In re LIBOR-Based Fin. Instruments Antitrust Litig., 935 F. Supp. 

2d 666, 679 (S.D.N.Y. 2013) (quoting OTC Am. Compl. ¶ 44–45). 
130 Bloomenthal, supra note 123. 
131 In re LIBOR-Based Fin. Instruments Antitrust Litig., 299 F. Supp. 

3d 430, 593 (S.D.N.Y. 2018). 
132 In re LIBOR-Based Fin. Instruments Antitrust Litig., 11 MDL 2262, 

2016 U.S. Dist. LEXIS 175929, at *53 (S.D.N.Y. Dec. 20, 2016). 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 929 

occurring at a subsequently set price.”133 In addition, a bench-

mark such as LIBOR is unique in the sense that, even if col-

lusive activity artificially suppressed LIBOR, it is not clear 

that market participants would be harmed, since other rele-

vant metrics such as the price of a financial instrument would, 

in certain circumstances, absorb whatever interest-rate vari-

ations the collusion had caused.134 

Therefore, when assessing antitrust injury, it would make 

sense to treat the alleged manipulation of LIBOR differently 

than the alleged manipulation of bid-ask spreads. Given the 

sheer ubiquity of a benchmark such as LIBOR as a factor in 

pricing trillions of dollars of financial instruments, any at-

tempt to litigate antitrust claims against alleged manipula-

tors would have to have limiting principles so that damages 

are reasonably estimable and in proportion to the harm that 

defendants caused.135 So too would a lack of limiting princi-

ples pose systemic risks by forcing “courts to adopt compli-

cated rules apportioning damages among plaintiffs removed 

at different levels of injury from the violative acts, to obviate 

the risk of multiple recoveries.”136 Moreover, it would be “un-

justified by the general interest in deterring injurious con-

duct, since directly injured victims can . . . be counted on to 

vindicate the law as private attorneys general, without any of 

 

133 In re LIBOR-Based Fin. Instruments Antitrust Litig., 299 F. Supp. 

3d 430, 593–94 (S.D.N.Y. 2018). 
134 This is due to the fact that the short-term interest rates for which 

LIBOR served as a benchmark vary inversely with the market prices of the 

instruments that incorporated those short-term rates. For example, if banks 

colluded to suppress LIBOR, then the prices of any instruments that used 

LIBOR to set their interest rates would, at least according to theory, rise 

proportionally as a result. This proposition, however, is only valid insofar 

as the suppression remains constant over the life of the financial instrument 

in question, since any changes in the degree of suppression after one pur-

chased that instrument, but before it matured, would correspondingly alter 

its market price. See In re LIBOR-Based Fin. Instruments Antitrust Litig., 

11 MDL 2262, 2016 U.S. Dist. LEXIS 175929, at *53–*54 (S.D.N.Y. Dec. 20, 

2016). 
135 Id. at *46. 
136 Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 269 (1992). 



  

930 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

the problems attendant upon suits by plaintiffs injured more 

remotely.”137 

The bid–ask spread and the benchmark are thus substan-

tively different. Whereas benchmark figures are the result of 

an “endeavor wherein otherwise–competing banks agree[] to 

submit estimates of their borrowing costs[,]”138 the bid-ask 

spread is the result of “actual transactions [among parties 

who] are supposed to be perpetually competing by offering in-

dependently determined bid–ask spreads.”139 The contrast be-

tween the ways in which antitrust law should treat the alleged 

manipulation of bid-ask spreads and that of benchmarks thus 

derives from their differing natures. 

B. Netting Endures 

Indeed, as in other antitrust contexts, the adoption of the 

net harm standard in defining antitrust injury implicates cer-

tain complications with respect to the adequacy of representa-

tive plaintiffs and the predominance of issues common to the 

class over those of an individual nature.140 Moreover, the gen-

eral principle that netting remains relevant to the certifica-

tion of an antitrust class regardless of how a court defines an-

titrust injury, applies equally, if not more forcefully, in the 

context of financial markets. This is the result of directional 

 

137 Id. at 269–70. 
138 In re LIBOR-Based Fin. Instruments Antitrust Litig., 935 F. Supp. 

2d 666, 688 (S.D.N.Y. 2013) (emphasis added). Although the Court of Ap-

peals for the Second Circuit later reversed the District Court’s conclusions 

in this matter, it did so not on the basis of the latter’s mischaracterization 

of the fundamental workings of the benchmark-setting process, but rather 

its mischaracterization of that endeavor as cooperative, and thus incapable 

of involving anticompetitive behavior. Gelboim v. Bank of Am. Corp., 823 

F.3d 759, 775 (2d Cir. 2016). 
139 Simmtech Co. v. Barclays Bank PLC (In re Foreign Exch. Bench-

mark Rates Antitrust Litig.), 74 F. Supp. 3d 581, 596 (S.D.N.Y. 2015). This 

Note’s exploration of bid–ask spreads and benchmark rates is admittedly 

rudimentary and glosses over many of the intricacies that can complicate 

the superficial picture presented here. However, those complexities are be-

yond the scope of this Note, and a simplifying approach helps to demon-

strate the salient points of this Note. 
140 See supra Sections III.B–C. 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 931 

considerations with respect to the plaintiffs’ conduct and tem-

poral factors pertaining to the defendant’s conduct. Whereas 

the manipulation of a bid-ask spread harms both the seller 

and the purchaser with whom the market maker interacts, 

the manipulation of a benchmark affects instruments that 

parties trade in opposition to one another. These complica-

tions involve netting and implicate the satisfaction of the pro-

cedural prerequisites for class certification. 

1. Adequacy 

The contextual application of antitrust laws with regard to 

financial markets demonstrates the utility of netting princi-

ples in navigating the procedural mandates of class certifica-

tion. If a court adopts the net harm standard for antitrust in-

jury then, as is the case with other antitrust actions, there 

would be reasonable suspicion that the class contains both in-

jured and uninjured class members, engendering conflicts of 

interest among class members sufficient to defeat ade-

quacy.141 Yet, such netting remains pertinent to evaluating 

the adequacy of the representative plaintiffs irrespective of 

how a court defines antitrust injury. 

As with determining antitrust injury, an evaluation of the 

adequacy of representative plaintiffs in a case involving alle-

gations of bid-ask spread manipulation should be relatively 

straightforward.142 This is due to the fact that anticompetitive 

manipulation that artificially widens the spread harms par-

ties on both sides of that spread, each of which essentially 

pays a price—either through under-compensation or over-

charge—for currencies that are divorced from the forces of 

supply and demand.143 There are thus aligned incentives for 

 

141 See supra Section III.B. 
142 In re Foreign Exch. Benchmark Rates Antitrust Litig., 13 Civ. 7789, 

2016 U.S. Dist. LEXIS 128237, at *38 (S.D.N.Y. Sept. 20, 2016) (“Unlike . . . 

LIBOR[, which] may . . . only [be] a component of [a] price . . . this case [in-

volving the alleged manipulation of the bid-ask spread for foreign exchange 

spot prices] is more straightforward.”). 
143 Consolidated Amended Class Action Complaint at 58, In re Foreign 

Exch. Benchmark Rates Antitrust Litig., 74 F. Supp. 3d 581 (S.D.N.Y. 

2015), (No. 1:13–cv–07789) (“The relationship between [market makers] 



  

932 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

those on either side of a trade involving an allegedly manipu-

lated bid-ask spread such that it is likely that the representa-

tive plaintiffs in an antitrust class action of implicating that 

matter will not have any disqualifying conflicts. 

The same, however, is not true in antitrust class actions 

involving the alleged manipulation of a benchmark rate. Anal-

yses of the adequacy of class representatives in both antitrust 

and nonantitrust class actions are illustrative of the principles 

that should guide that endeavor. It is the reality that, unlike 

with a simple bid-ask spread, the manipulation of a bench-

mark is a component in pricing other instruments, rather than 

a price that an intermediary charges to both sides of a trans-

action which, for certain instruments, is an inherently zero-

sum enterprise.144 As a result, an instrument whose price had 

incorporated a manipulated benchmark would provide a ba-

sis, using an options contract as an example, for both the party 

taking the long position, as well as the party taking the short 

position. Given the implications regarding antitrust injury 

and damages, a plaintiff who profited from that option would 

have an incentive to minimize the alleged degree of defend-

ants’ manipulation on the day on which the option expired, 

whereas a plaintiff who was on the losing side would have the 

conflicting incentive to maximize such manipulation on that 

day. Thus, with regard to a class action based in the Commod-

ities Exchange Act, “named plaintiffs with opposite net 

 

and their customers is the same as the relationship between any merchant 

selling goods to consumers in a marketplace . . . based on fundamental 

forces of supply and demand . . . . [Market makers’] collusive conduct [can] 

warp[] the interplay of supply and demand and cause . . . [s]pot [r]ate[s] to 

be manipulated.)”. Cf. Merced Irrigation Dist. v. Barclays Bank PLC, 165 F. 

Supp. 3d 122, 133 (S.D.N.Y. 2016) (ruling that a defendant whose electricity 

rates resulting from the defendant’s artificial inflation of prices, “instead of 

[prices resulting from] the forces of supply and demand,” had sufficiently 

alleged antitrust injury.). 
144 Futures and options, for example, involve one party profiting at the 

expense of the counterparty. Will Kenton, Zero–Sum Game Definition in Fi-

nance, With Example, INVESTOPEDIA (Aug. 16, 2022), https://www.in-

vestopedia.com/terms/z/zero-sumgame.asp#:~:text=In%20finan-

cial%20markets%2C%20futures%20and,is%20transferred%20to%20anoth

er%20investor [https://perma.cc/EFM8-W8AV]. 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 933 

trading positions will have directly conflicting incentives to 

establish not only the existence but also the magnitude of any 

manipulation that occurred on those dates.”145 The same prin-

ciples apply to an antitrust action that alleges the same collu-

sive manipulation. Unlike the foregoing “[e]xchange action, 

any diverging incentives within [an antitrust class would be] 

. . . necessarily limited by . . . [alleged] suppression [which 

was] one-directional [in] nature.”146 Although conflicts of this 

sort are not per se sufficient to defeat adequacy,147 they should 

give even those courts which had not adopted the net harm 

standard for antitrust injury a reason to analyze certain anti-

trust allegations through the net harm lens. 

2. Predominance 

The potential membership of net beneficiaries in an anti-

trust class is, as with adequacy, particularly germane to the 

predominance of common issues in the context of a class action 

that directly implicates financial markets. This is true irre-

spective of how a court chooses to define antitrust injury. 

A net harm standard for antitrust injury would be partic-

ularly problematic for antitrust classes whose members were 

on opposite sides of the trades that defendants’ allegedly col-

lusive conduct had tainted. Indeed, given that the adoption of 

that standard would likely lead to a class containing both in-

jured and uninjured members, it would, in turn, involve the 

problem of whether, and to what extent, a class may contain 

uninjured members. While there is some disagreement re-

garding the precise threshold of the ratio of injured to unin-

jured class members that would defeat predominance, there is 

a general consensus that such a threshold does exist.148 

 

145 In re LIBOR-Based Fin. Instruments Antitrust Litig., 299 F. Supp. 

3d 430, 539 (S.D.N.Y. 2018). 
146 Id. at 590. 
147 See id. at 551, 590 (finding that classes that had alleged benchmark 

manipulation of a unidirectional or sufficiently delineated nature did not 

have fundamental conflicts that would defeat adequacy). 
148 See supra Section III.C. 



  

934 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

Even absent the use of the net harm standard for antitrust 

injury, netting principles would remain pertinent to the pre-

dominance analysis, albeit for reasons that do not center 

around the potential presence of uninjured members. Rather, 

especially with respect to classes with members who took op-

positional trading positions, there would be oppositional in-

centives to establish the presence and extent of collusive ma-

nipulation. Such a problem would likely be muted in an 

antitrust class action involving allegations that defendants 

had manipulated the width of a bid-ask spread. Although 

sellers would seemingly have more incentive to establish the 

presence of manipulation of the bid rate than the ask rate, and 

vice versa, there would still be a mutual desire to substantiate 

the presence of manipulation with respect to the same pricing 

figures on the same dates. In this sense, both sellers and pur-

chasers would, for the most part, be arguing in support of the 

very same proposition: that defendant(s) had manipulated the 

bid-ask spread. 

Matters would be more complicated, however, with respect 

to allegations that defendant(s) had manipulated the esti-

mates of their borrowing costs which would ultimately serve 

as the basis for a given benchmark figure. In such cases, un-

like in the context of allegations involving the widening of a 

bid-ask spread, it is highly plausible that there would be mem-

bers of the same class whose trading positions were opposi-

tional to one another. These plaintiffs would resultantly have 

differing incentives to establish the direction and extent of the 

alleged manipulation, as well as the days on which it took 

place, thereby making it more difficult to provide a common 

means of substantiating the extent of damages.149 Further 

 

149 Although these differences would not defeat predominance per se, 

they add further individuality to calculating damages that can, if it reaches 

a certain level, defeat predominance. See, e.g., Kottaras v. Whole Foods 

Mkt., Inc., 281 F.R.D. 16, 24 (D.D.C. 2012) (quoting Windham v. Am. 

Brands, Inc., 565 F.2d 59, 68 (4th Cir. 1977)) (“[W]here the issue of damages 

. . . does not lend itself to . . . mechanical calculation, but requires ‘separate 

mini-trial[s]’ of an overwhelming[ly] large number of individual claims, . . . 

the ‘staggering problems of logistics’ . . . ‘make the damage aspect of (the) 

case predominate,’ and render the case unmanageable as a class action.”). 

Cf. In re LIBOR-Based Fin. Instruments Antitrust Litig., 299 F. Supp. 3d 



  

No. 2]    THE PROPRIETY AND INEVITABILITY OF NETTING IN ANTITRUST CLASS ACTIONS 935 

complicating matters is the fact that predominance is a func-

tion of the underlying cause of action such that a prerequisite 

to its satisfaction is the production of a common, that is, pre-

dominating, metric for calculating damages. Since many 

courts have held that antitrust damages must reflect “net” in-

jury, plaintiffs must produce a common means of ascertaining 

the extent of such net injuries.150 Therefore, the more that 

class members’ claims diverge in terms of the direction, ex-

tent, and dates of suppression, the worse the case will be for a 

finding of predominance.151 There are thus numerous ways in 

which netting principles are relevant to determining whether 

common issues predominate among members of an antitrust 

class, even if one eschews the net harm standard for antitrust 

injury. 

VI. CONCLUSION 

Whether to use a net harm standard for antitrust injury is 

the source of much debate among courts and scholars. Given 

its alignment with the fundamental goals of antitrust law and 

the practical realities of antitrust class actions, the net harm 

standard for antitrust injury is, overall, more appropriate 

than the disregard thereof, and should thus receive greater 

implementation. Nonetheless, it appears that for antitrust 

 

at 544 (concluding that the individual evidence that members of a securities 

fraud class would need to introduce in order to measure the extent of any 

damages militates against a finding of predominance). 
150 See supra Areeda, note 90 at 1138. See also e.g., L.A. Mem’l Coli-

seum Comm’n v. Nat’l Football League, 791 F.2d 1356, 1366 (9th Cir. 1986); 

Sonterra Cap. Master Fund Ltd. v. Credit Suisse Grp. AG, 277 F. Supp. 3d 

521, 563 (S.D.N.Y. 2017); Abrahamson v. Fleschner, 568 F.2d 862, 878 (2d 

Cir. 1977); Kohen v. Pac. Inv. Mgmt. Co. LLC & PIMCO Funds, 571 F.3d 

672, 676 (7th Cir. 2009). This does not require plaintiffs to actually calculate 

the net injury figure, but rather requires a demonstration of a common 

method for doing so in the event that they prevail. Tyson Foods, Inc. v. Boua-

phakeo, 577 U.S. 442, 446 (2016) (“[T]he lack of common methodology for 

proving damages [is] fatal to predominance.”). 
151 This does not mean, however, that it will necessarily be sufficient to 

defeat predominance, since “individualized damages alone cannot preclude 

certification[.]” Roach v. T.L. Cannon Corp., 778 F.3d 401, 409 (2d. Cir. 

2015). 



  

936 COLUMBIA BUSINESS LAW REVIEW [Vol. 2023 

class actions, courts will need to grapple with the concept of 

net harm, and the process of netting harms against benefits, 

regardless of how they approach antitrust injury. Courts must 

navigate these doctrinal matters within the context of the pro-

cedural dictates that govern class actions, an endeavor which 

has proven to be increasingly difficult. There indeed exist de-

vices that offer promise in easing the foregoing processes, the 

relative virtues of which are beyond the scope of this Note.