Why Economic Analysis Is Central to Antitrust Litigation

Antitrust laws exist to protect competition. But determining whether specific conduct actually harms competition, rather than reflecting lawful competitive behavior, requires more than legal argument; it requires rigorous economic analysis.

Courts rely on economists to answer concrete questions: Did the alleged conduct affect market prices or output? Were consumers harmed? How should any resulting damages be measured? These questions cannot be resolved through legal doctrine alone. They require empirical evidence, econometric models, and a deep understanding of how markets function.

An antitrust economic expert provides the analytical framework courts (and juries) use to assess liability, evaluate class certification claims, and quantify harm. Without this foundation, courts and enforcement agencies would lack the tools needed to distinguish procompetitive conduct from anticompetitive violations. The same applies in private litigation, where plaintiffs and defendants alike depend on economic evidence to support their positions.

When Antitrust Economic Experts Become Involved in a Case

Early Case Assessment and Strategy Development

Economic experts are often engaged early (sometimes before a complaint is filed) to assess the viability of claims or defenses. Before formal discovery begins, preliminary economic analysis can reveal whether market structure supports a theory of harm, whether pricing patterns suggest anticompetitive conduct, or whether alternative explanations undermine a plaintiff’s case.

This early involvement directly informs case strategy. Counsel can evaluate potential exposure, refine theories of liability, and identify the data most critical to proving or defending against the claims. For defendants, early expert engagement may reveal weaknesses in a plaintiff’s allegations that warrant aggressive motion practice. For plaintiffs, it may confirm that the economic evidence supports class action treatment or justify pursuing settlement negotiations from a position of strength.

Engaging an expert before discovery closes allows the legal team to shape pleadings, prioritize document or data requests, and avoid building a case around untested or flawed assumptions.

Expert Involvement During Discovery

Once discovery begins, antitrust cases often generate vast amounts of documents and data. Transaction records, pricing histories, cost information, internal communications, and competitive analyses all require interpretation. Economists assist counsel in identifying and evaluating key data relevant to pricing, output, and market behavior.

Experts advise and can help craft data requests, helping counsel target the information most likely to illuminate competitive effects. They also evaluate the completeness and reliability of produced documents, flagging gaps or inconsistencies that may affect the analysis.

Throughout discovery, economic analysis is iterative. As new evidence emerges, liability and damages theories are refined. The expert’s ongoing involvement ensures that the economic framework evolves alongside the evidentiary record, rather than being constructed only after the facts are fixed.

The Antitrust Economic Expert’s Role in Liability Analysis

Market Definition and Competitive Effects

Market definition is foundational to an antitrust case. Before evaluating whether conduct harmed competition, courts must understand the relevant product and geographic market in which that competition occurs.

Economic experts define these markets by examining substitution patterns and what products or services do customers view as reasonable alternatives? Geographic market definition considers where customers can practically turn for substitutes. These analyses often employ the hypothetical monopolist test (HMT), which asks whether a firm controlling the proposed market could profitably impose a small but significant price increase (SSNIP).

Market definition is not an abstract exercise. It provides the foundation for evaluating market power and competitive effects. If markets are defined too narrowly, a firm may appear dominant despite meaningful competitive constraints. If defined too broadly, genuine market power may be obscured.

Experts regularly analyze pricing behavior, demand characteristics, and industry structure to assess whether the alleged conduct harmed competition. This includes examining whether prices rose, output fell, innovation slowed, quality decreased, or consumer choice diminished as a result of the challenged anticompetitive practices.

Assessing Market Power and Anticompetitive Conduct

Establishing that a firm possesses market power is often a threshold requirement in antitrust litigation. Economic analysis evaluates market power through concentration measures, market shares, barriers to entry, and historical pricing patterns.

But market power alone is insufficient. Courts require evidence that the defendant’s conduct whether price fixing, exclusive dealing, predatory pricing, or single firm conduct caused competitive harm. The expert’s role is to distinguish between conduct that reflects legitimate competition and conduct that distorts competitive outcomes.

This requires linking observed market outcomes to the alleged anticompetitive behavior. Econometric analysis, statistical analysis, and comparison with benchmark periods or control markets all help isolate the effects of the challenged conduct from other factors such as cost changes, demand shifts, or industry-wide trends.

Economic Experts and Class Certification in Antitrust Cases

Common Impact and Classwide Proof

In antitrust class actions, plaintiffs must demonstrate that common questions predominate over individualized issues. This is where economic experts can play a decisive role.

Economists assess whether alleged anticompetitive effects are common across the proposed class. For example, in a cartel case, the expert may analyze whether overcharges from price fixing affected all class members through uniform pricing mechanisms. In a monopolization case, the expert may evaluate whether exclusionary conduct harmed all customers who purchased during the alleged relevant period sometimes referred to as the class period.

Courts rely on expert economic analysis to determine whether impact can be demonstrated using classwide proof rather than individualized inquiries. Courts rely on reports and testimony to determine whether common proof, rather than individualized inquiries, can establish that each class member was affected by the alleged conduct.

Predominance and Individualized Issues

Variations in pricing, transaction terms, or customer characteristics can prevent classwide treatment. Economic experts are well-suited to address these claims using produced data and documents.

Plaintiff experts may demonstrate that, despite variation, a common methodology can establish impact across the class using produced data and econometric models. For defendants, the expert may demonstrate that individualized issues such as negotiated prices or unique contract terms overwhelm common questions.

Expert testimony is central to predominance determinations under Rule 23. Courts regularly cite economic analysis offered by experts when deciding whether class certification is appropriate, making the expert’s role in this phase of the case particularly consequential.

The Role of the Antitrust Economic Expert in Damages Analysis

Constructing the “But-For” World

Damages analysis requires economists to estimate what prices, output, and/or other market outcomes would have been absent the alleged anticompetitive conduct. This counterfactual—the “but-for” world—is the benchmark against which actual outcomes are compared.

Constructing this scenario demands both economic theory and careful attention to available data. Experts may use benchmark approaches (comparing prices before and after the violation, or in affected versus unaffected markets), regression analysis, or simulation models to estimate but-for prices.

Quantifying Overcharges and Other Forms of Harm

Once the but-for world is established, economists quantify damages by comparing actual outcomes to estimated but-for outcomes. In cartel cases for example, this typically involves calculating overcharges which is the difference between the prices actually paid and the prices that would have prevailed absent the collusion.

Expert analysis may also assess pass-through (how overcharges were passed from direct to indirect purchasers), lost profits, reduced output, or other forms of economic harm. The choice of methodology depends on the nature of the claim, the available data, and the legal standards.

Courts rely on damages models that are consistent with liability theories and the factual record. Experts must be prepared to defend their methodologies during depositions, under cross-examination at trial, and address alternative approaches offered by opposing economists.

Antitrust Economic Experts at Summary Judgment and Trial

Supporting Dispositive Motions

Economic analysis frequently supports or opposes summary judgment motions on liability or damages issues. At this stage, courts evaluate whether genuine disputes of material fact exist or whether one party is entitled to judgment as a matter of law.

Expert reports clarify the economic significance of the evidence. They address competing interpretations and explain why the data supports one party’s position over another. Courts often rely heavily on expert economic opinions when determining whether a case should proceed to trial or be resolved prior to trial.

Expert Testimony at Trial

At trial, antitrust economic experts must translate complex data, econometric models, and economic theory into testimony that judges and juries can understand. This requires not only technical competence but also clear communication and the ability to present economic reasoning, often based off advanced concepts, in an accessible way.

Expert testimony assists the trier of fact in understanding market dynamics, the nature of the alleged harm, and the basis for damages calculations. Effective experts support their testimony with data, demonstrative exhibits, and digestible economic logic that is consistent with the evidence.

The best experts anticipate challenges to their assumptions and methods, and they can explain why their approach is reliable even under adversarial questioning.

What Courts Expect from Antitrust Economic Expert Analysis

Courts impose exacting standards on economic testimony. Opinions must be grounded in accepted economic principles and supported by reliable data. Speculation, unsupported assumptions, and advocacy dressed as analysis will not pass muster.

Transparency is essential. The expert must clearly explain the methodology used, the assumptions made, and the limitations of the analysis. Courts and opposing counsel will often scrutinize every step.

Economic testimony should assist the court without advocating legal conclusions. The expert’s role is to provide independent, objective analysis that helps the finder of fact understand the economic issues at stake. This requires a deep understanding of both antitrust economics and the demands of litigation.

How Lawyers Use Antitrust Economic Experts Throughout Litigation

Lawyers rely on economists as strategic advisors throughout the life of a case, not only at trial. From initial case assessment through settlement negotiations, the expert’s analysis can help shape the legal team’s approach.

As new evidence is developed and legal issues narrow, expert analysis can evolve. The economist may be called upon to respond to arguments raised in motions, address new data produced in discovery, or refine damages models based on emerging case law.

Ongoing collaboration between counsel and economists ensures consistency across liability, class certification, and damages theories. When an expert’s testimony on one issue aligns with their analysis on another, credibility is enhanced. When gaps or inconsistencies appear, opposing counsel will often exploit them.

Firms with extensive experience in antitrust and competition matters understand that integrating economic expertise early and maintaining close coordination throughout litigation is essential to successful outcomes.

Conclusion: The Antitrust Economic Expert as a Core Litigation Resource

An antitrust economic expert is not a peripheral advisor. In complex antitrust matters, economic analysis is central at every stage—from early case assessment to trial testimony. Courts, regulators, and juries depend on this expertise to understand whether alleged conduct harmed competition, whether class treatment is appropriate, and how damages should be measured.

Effective use of economic expertise requires early engagement, clear communication, and rigorous methodology. Whether the case involves price fixing, bid rigging, bundling or tying, or regulatory enforcement matters, the economic expert’s analysis anchors the competition issues that arise in litigation.

For counsel handling antitrust matters, selecting a skilled expert with a strong track record in relevant industries and working collaboratively from the outset is not optional. It is the foundation of a defensible case strategy and, ultimately, of persuasive advocacy before courts and other jurisdictions.

Frequently Asked Questions

When should a legal team first engage an antitrust economic expert?

The earlier, the better. Ideally, experts should be retained at the pre-complaint or investigation stage. Early engagement allows economists to shape data preservation strategies, guide discovery requests, and identify feasibility issues with potential damages models before the evidentiary record is fixed.

Can antitrust economic experts work on behalf of both plaintiffs and defendants?

Yes. Economic experts work for plaintiffs, defendants, and the government in antitrust litigation. The key requirement is independence. The expert must provide objective analysis grounded in the facts, not conclusions tailored to the client’s preferred outcome. Courts expect experts to maintain analytical integrity regardless of which side has retained them.

What distinguishes a qualified antitrust economic expert from a general economist?

Antitrust economic experts typically hold PH.D.s in economics with specialization in industrial organization, competition policy, or econometrics. They have consulting and litigation experience, often including prior work with antitrust enforcement agencies like the DOJ or FTC. Published research in competition matters, prior expert testimony, and familiarity with the specific industry at issue are all markers of a qualified expert.

How do courts evaluate the reliability of an expert’s economic analysis?

Courts assess whether the expert’s methodology is grounded in accepted economic theory, whether the data used is reliable and relevant, and whether assumptions are clearly stated and justified. Under standards like Daubert, judges act as gatekeepers, excluding testimony that lacks sufficient foundation or is based on unreliable methods.

Are economic expert reports understandable to non economists?

Strong experts write reports with clear executive summaries, intuitive explanations, and visual exhibits. While the underlying econometric analysis may be technical, effective experts translate findings into language that judges, juries, and clients can understand without advanced training in economics.