Lieff Cabraser attorney Brendan Glackin offered his views of the state of antitrust law in a roundtable discussion by leading antitrust practitioners published in the April 2014 issue of California Lawyer magazine.
In discussing the U.S. Supreme Court holdings in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), Glackin observed that while "there was a great uproar when it was decided," the cases have not resulted in courts denying class certification in antitrust cases that previously would have been certified. Instead, Glackin stated the impact of these decisions "has been to increase the desire of courts and plaintiffs to be sure that they have made a great record on class certification."
Glackin also commented on what he termed the "disproportionate faith in the power of the invisible hand in American antitrust jurisprudence." Glackin explained:
[T]here’s this faith that barring the existence of a "classic" cartel, the invisible hand of the marketplace is going to force even very large producers to offer competitive prices, and whether it’s ten firms, 15 firms, 20 firms doesn’t matter. As a matter of fact, it does matter. In a highly concentrated market, even a small amount of information exchanged among the companies, publicly or privately, can allow them to coordinate prices above competitive levels-in other words, fix prices. But the jurisprudence right now is not friendly to claims against oligopolists based on information exchange.