Statistician John Tukey once said, “The best thing about being a statistician is that you get to play in everyone’s backyard.” At any given time, my co-workers and I are immersed in the study of different markets ranging from electronic components to chocolate to chemicals to dental supplies.
Since Dr. Jim McClave called me out of retirement in 2009 to work on the Urethanes case, playing in everyone’s backyard has kept my life interesting. The Urethanes case involved intermediate chemicals used in the manufacturing of rigid and flexible foam. Did you know that urethane chemicals are used to make the insulation in your house and the soles of your shoes? Not surprisingly, our team had a lot to learn about methylene diphenyl isocyanate, toluene diisocyanate, and polyols! Say that three times fast. In my second week at the Urethanes trial in Kansas City, it dawned on me that the Infotech family knew more about MDI, TDI, and polyols than we ever thought we would when my 7-year-old son called to tell me that our memory foam mattress was probably made from chemicals involved in our case!
All of this research and teamwork is necessary to assemble a picture that can be applied to a final analysis and assists the team at every step along the way. Whether one of our experts has been asked to estimate damages in a price fixing case or do an economic analysis in a loss of business action, each new case for us starts with learning the intricacies of the relevant industry. While our Data Management team is working with the data produced in discovery, our Case Development team researches basic industry fundamentals — like how the product is actually made and where plants are located — as well as relevant economic factors that might ultimately be reflected in our econometric analysis — what are the costs that the industry players really care about and what impacts demand for the product. We scour discovery documents and public data sources, whether to assist the Data team in understanding the nuances of products, to build a timeline of key economic and industry events, or to compile data and support on price drivers in the industry. There are so many parts of my job that I love and that challenge me … and playing in everyone’s backyard is one of them.
Named plaintiffs play an important role in class action cases as they represent an entire group of people who were allegedly harmed by a defendant’s (or defendants’) wrongdoing in a class action. Getting to know your potential named plaintiffs, their data and their role as a player in the industry can add valuable information to the class certification process and bring insights as to the harm potentially suffered by the class in general. Here are three ways to assess valuable information about your named plaintiffs.
1. Industry reports
Finding potentially injured parties and obtaining their data is often a difficult task. In the meantime, obtaining industry reports can offer a firm understanding of how a potentially injured party fits into the industry, supply chain, or competitive environment (which can lead to other potential parties) and help guide the formulation of a solid complaint. For example, identifying the geographical advantage a manufacturer may have over a competitor could explain previously questioned price inconsistencies.
2. Plaintiff Data
Reviewing their purchase history and transaction data can clarify a complaint and give preliminary insights into statistical trends. Early evaluation of potential injury to named plaintiffs in relation to the class as a whole can save substantial challenges and litigation obstacles later and can highlight areas for case development. For example, comparing an individual party’s degree of injury against another plaintiff can give insight into their likelihood of signing-on or opting out. The parties with the greatest injury may be the most likely to pursue an opt-out case. Smaller parties or parties with less injury may be easier to sign on but more challenging to show injury.
3. Potential Benchmarks
All data is insightful data – even when an alleged injury is not immediately apparent. Pause before throwing any data out with the bathwater. When a party is identified but appears to not have been injured, statistically speaking, their data may provide a useful benchmark – an example of how a defendant should have behaved.
Other Questions to Ask
As you get to know your named plaintiffs, some additional questions may help avoid problems down the road: Are the named plaintiffs purchasing products from all product categories? Are they purchasing from all defendants? Are they purchasing during the injury period? Do the named plaintiffs represent all customer types, such as manufacturers, wholesalers, distributors and retailers? Working with your experts to assess your named plaintiffs in relation to the class as a whole will ensure smooth sailing throughout the remainder of the class certification and merits phases of the case.