In a notable reversal, the Sixth Circuit overturned a grant of summary judgment in a Section 1 Sherman Act antitrust claim concerning milk bottlers. In re Southeastern Milk Antitrust Litigation. The opinion provides a helpful primer on basic antitrust law, as well as delineating Sixth Circuit standards on a number of important components of an antitrust claim. After a broad overview, the opinion turns to evaluating whether the per se or rule of reason should apply given the facts at hand. The Court rejected overtures by the plaintiffs to apply a per se rule in this case, and deemed the rule of reason the appropriate analytical tool. However, that only commenced a discussion of how to apply the rule of reason test, as the Sixth Circuit acknowledged that “courts have recently begun to view the rule of reason in a broader manner in certain cases.” Suggesting a measure of flexibility, the Court explained the distinction between the “quick look” form of analysis and the “full” rule of reason analysis. Under the “quick look” standard, the Court found that the plaintiff adequately raised a genuine issue in material fact as to whether an antitrust violation occurred.
Another notable aspect of the Court’s opinion was its discussion of the exclusion of the plaintiff’s expert witness. While there was some unusual procedural issues that may have contributed to the exclusion, the Court focused more intently on the propriety of the exclusion under the familiar Daubert standards. Although its decision was very fact-intensive, the Court ultimately found that the district court had abused its discretion in excluding the testimony based on its incomplete review of the facts and the application of incorrect legal standards.
The extended discussion of the expert issue will presumably carry significant repercussions in future antitrust cases, as the Sixth Circuit went to great lengths to discuss the propriety of market-based testimony. For instance, the district court excluded the expert testimony based on an absence of facts in the record. However, the Sixth Circuit noted that the expert cited extensively to facts from government studies, academic publications and the record itself as he created a geographic market. While expert reports must be based on proper facts, the Court determined that “each of those facts does not have to occupy an independent part of the record for an expert to be able to use them when crafting an opinion.”