Indirect-purchaser pass-through economist
Expert class library · Antitrust · Either side
Estimates how much of an upstream overcharge was passed down the distribution chain to indirect purchasers. The analysis is central to standing, impact, and damages in state-law indirect purchaser class actions.
What this expert is retained to answer
- What share of the alleged overcharge did direct purchasers and resellers pass on to end buyers?
- Can a single pass-through rate be applied across retailers, regions, and products?
- Does pass-through evidence show that all or nearly all indirect purchasers were injured?
- Do retail pricing practices such as price points or loss leaders break the link between wholesale and retail prices?
Methods
- Pass-through regression
- Distribution chain mapping
- Cost-price relationship analysis
- Economic theory of incidence
How the testimony is attacked
- Single pass-through rate masks variation. Defendants argue that one average rate hides resellers who passed through little or nothing. In Digital Music the court found the plaintiffs' uniform rate unsupported because one major retailer kept a fixed retail price while wholesale prices varied.
- Wrong direction of causation. Opponents contend the model assumes wholesale prices drive retail prices when the dominant retailer may set retail prices first. The Digital Music court accepted that critique of the plaintiffs' linear pass-through assumption at class certification.
- Thin or anecdotal data for a pass-through opinion. Plaintiffs attack defense opinions built on a few news reports or data points. The Digital Music court refused to exclude the defense economist's zero pass-through opinion because the plaintiffs did not show the data were inadequate.
- New opinions in supplemental declarations. A late declaration that recasts the other side's theory can be excluded. In Digital Music the court excluded the defense economist's supplemental declaration because it rested on a mischaracterization of the plaintiffs' theory.
- Disagreements that go to weight. Many courts treat disputes over data choices as matters for cross-examination. In Flonase and SRAM the courts denied every motion to exclude the indirect purchaser and defense economists and proceeded to the class certification merits.
What the public record shows
A deliberately narrow CourtListener search, "pass-through" AND "indirect purchaser" AND (Daubert OR "Rule 702"), returned 8 opinions filed since 2015, as of October 2, 2026; broader searches return more. Three that show how courts handle this class of testimony:
| Outcome | Case | Court | Why |
|---|---|---|---|
| Limited | In re Digital Music Antitrust Litigation321 F.R.D. 64 | S.D.N.Y. 2017 | The court admitted the defense economist's opinion that one retailer had zero pass-through but excluded his price-variability opinions and supplemental declaration, then denied certification of the indirect purchaser classes because the plaintiffs' uniform pass-through rate was unsupported. |
| Admitted | In re Flonase Antitrust Litigation284 F.R.D. 207 | E.D. Pa. 2012 | The court denied all three Daubert motions, including the defendant's motion to exclude the indirect purchasers' economist, and certified the indirect purchaser class. |
| Admitted | In re Static Random Access Memory (SRAM) Antitrust Litigation264 F.R.D. 603 | N.D. Cal. 2009 | The court denied the defendants' motions to exclude the indirect purchaser plaintiffs' economists and also denied the plaintiffs' motion to exclude the defense economist. |
Each case links to the free opinion text on CourtListener.
Under amended Rule 702
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
- Cartel-overcharge damages economist
- Plaintiff common-impact 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
Simulating this class on a matter
Supreme Mind simulates a class of expert, never a named individual, on your fact pattern and returns the likely opinion, the ranked cross-examination weaknesses, the Rule 702 attack surface and what it means for settlement. Read how it works, or book a demo.
Last reviewed October 2, 2026. How this page is built: rulings are found by searching court opinions on CourtListener, and each one is read in the opinion before it is summarised here; 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.