Cartel-overcharge damages economist
Expert class library · Antitrust · Plaintiff side
Estimates how much higher prices were because of an alleged price-fixing conspiracy by comparing conspiracy-period prices with a competitive benchmark. Produces aggregate and per-purchaser overcharge figures for trial and settlement.
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Questions this testimony turns on
- Did the alleged conspiracy raise prices above competitive levels, and by how much?
- What benchmark period or market best represents competitive pricing?
- What is the total overcharge, and how is it allocated to individual purchasers or transactions?
- Do supply, demand, and cost factors explain the price increase without the conspiracy?
Methods
- Before-and-after regression
- Benchmark or yardstick comparison
- Dummy-variable overcharge model
- Pass-on allocation
How the testimony is attacked
- Predictive rather than structural model. Defendants argue a reduced-form forecasting regression does not explain why variables drive prices. In Urethane the court held predictive before-and-after models are generally reliable and denied exclusion.
- Overfitting to the benchmark period. A model tuned to quirks of the benchmark may fail to capture the forces at work during the conspiracy. Dow pressed this argument in Urethane, and the motion to exclude was still denied.
- Contaminated benchmark. If the 'after' period still reflects residual effects of the conduct, the overcharge is understated or distorted. In Pool Products the court rejected the argument that a benchmark must be free of any residual effect to be admissible.
- Averaging that creates false positives. Defendants argue that assigning a single average or median overcharge, or attributing the error term to the overcharge, finds injury where none exists. Pool Products and Processed Egg both rejected versions of this attack on the facts presented.
- Opinions that stray beyond damages. Damages economists often add market definition or causation opinions, and those are tested separately. Pool Products excluded the same expert's spatial-integration market opinion and his aggregate causation opinion while admitting the overcharge model.
What the public record shows
Courts have filed at least 21 opinions since 2015 that discuss this class of testimony and cite Daubert or Rule 702, as of October 4, 2026. 8 rulings that show how courts handle this class of testimony:
| Outcome | Case | Court | Year | Why |
|---|---|---|---|---|
| Sent back for review | Home Depot U.S.A., Inc. v. Lafarge North America Inc.59 F.4th 55 | 3d Cir. | 2023 | The Third Circuit vacated the exclusion of large parts of an opt-out plaintiff's economist's testimony on a drywall price-fixing conspiracy, holding that rulings made in the multidistrict litigation before the plaintiff joined could not bind it through issue preclusion or law of the case, and remanded. |
| Admitted | Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC31 F.4th 651 | 9th Cir. (en banc) | 2022 | The en banc Ninth Circuit affirmed class certification in the packaged tuna price-fixing case, holding the district court properly relied on the direct purchasers' economist's pooled regression and pricing tests as capable of showing class-wide impact, and rejecting a rule that a class may include only a de minimis number of uninjured members. |
| Admitted | In re Urethane Antitrust Litigation166 F. Supp. 3d 501 | D.N.J. | 2016 | The court denied the defendant's motion to exclude the plaintiffs' damages expert, holding that predictive before-and-after regressions built on a non-collusive benchmark are a generally reliable way to measure overcharges, while reserving whether she could attribute model variances to the conspiracy itself. |
| Limited | In re Pool Products Distribution Market Antitrust Litigation166 F. Supp. 3d 654 | E.D. La. | 2016 | The court admitted the plaintiffs' before-and-after overcharge regression and per-transaction damages method but excluded the same expert's spatial-integration and cointegration market opinions and his aggregate causation opinion for the vertical conspiracies. |
| Admitted | In re Processed Egg Products Antitrust Litigation81 F. Supp. 3d 412 | E.D. Pa. | 2015 | The court rejected challenges to the plaintiffs' expert's regression estimating a single average overcharge, finding that odd results in data subsets did not show the model unreliable as a whole and that his reply analysis addressed the defendants' bias critique. |
| Admitted | In re Ready-Mixed Concrete Antitrust Litigation261 F.R.D. 154 | S.D. Ind. | 2009 | Deciding the Daubert motions with class certification, the court denied exclusion of the plaintiffs' economist because his proposed regression method for common impact and damages is widely accepted and his market assumptions had support in the record. |
| Admitted | In re Scrap Metal Antitrust Litigation527 F.3d 517 | 6th Cir. | 2008 | The Sixth Circuit affirmed admission of the plaintiffs' during-and-after overcharge analysis in a price-fixing case, holding that complaints about the accuracy of the price index data he used went to weight and were properly left for cross-examination. |
| Excluded | In re Aluminum Phosphide Antitrust Litigation893 F. Supp. 1497 | D. Kan. | 1995 | The court excluded the plaintiffs' price-fixing damages expert because he ignored pre-conspiracy data, ran no regression to account for supply, demand and other non-conspiracy factors, and rested his before-and-after comparison on unsupported assumptions. |
Each case links to the free opinion text on CourtListener.
In federal court: amended Rule 702
In federal court, since December 1, 2023, Rule 702 says expressly that the party offering an expert must show the court it is more likely than not that the testimony meets each requirement: that it rests on sufficient facts or data, uses reliable methods, and reflects a reliable application of those methods to the case. Questions about the basis of an opinion are no longer automatically matters of weight for the jury. For how the circuits have applied the amendment, see the Rule 702 tracker, which follows each court of appeals; for what that means for preparing or attacking this class of expert, see the guide on amended Rule 702.
Related classes
- Plaintiff common-impact economist
- Indirect-purchaser pass-through economist
- Defense class-certification antitrust economist
Guides
- Common Impact and Pass-Through at Class Certification
- Amended Rule 702 After Nearly Three Years: What Courts Exclude
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Updated October 4, 2026. How this page is built: rulings are found by searching court opinions on CourtListener. The summaries are written by AI working from the full text of each opinion, and every citation and link is checked automatically. Outcomes are labelled by what the court did with the expert’s testimony. No individual expert is named. This page summarises public decisions for orientation and is not legal advice; read the opinion before relying on any ruling. Spotted an error? Tell us.