| David O. Fisher, Beryl Emmerich
Section 1 of the Sherman Act, Competition Policy
On September 28, 2026, the American Antitrust Institute (AAI) filed an amicus brief in In re Juul Labs, Inc. Antitrust Litigation, No. 26-2626, asking the Ninth Circuit to affirm certification of direct and indirect classes in a Section 1 suit arising out of tobacco giant Altria’s 2018 investment agreement with Juul under which Altria allegedly agreed to exit the e-cigarette market, reducing competition and raising prices.
Plaintiffs brought suit under Section 1 of the Sherman Act and California’s Cartwright Act on behalf of direct purchasers nationwide and indirect purchasers in 31 so-called Illinois Brick repealer states—those states that allow indirect purchasers to bring damages suits under state law. The district court certified the indirect purchaser class, reasoning that extraterritorial application of the Cartwright Act was proper and that variations in Illinois Brick repealer laws did not defeat predominance under Rule 23(b)(3), which requires that questions common to the class will predominate over questions specific to individual class members at trial. The court also rejected Defendants’ arguments that the direct purchasers’ impact and damages expert improperly used an antitrust logit model to demonstrate class-wide impact and that their ability to pass on any overcharges to their customers defeated predominance.
AAI’s brief addresses Defendants’ argument on appeal that differences between Illinois Brick repealer states’ laws categorically prevent a predominance finding. AAI explains that multistate repealer classes do not present unique predominance issues because they are aligned on the core, common question of antitrust liability—which typically predominates over any state-specific questions related to remedies—and on the fundamental question of indirect purchasers’ antitrust standing. It also explains how prohibiting multistate repealer classes would undermine the policy goals behind Rule 23 and the Class Action Fairness Act by requiring the common question of antitrust liability to be litigated in each of the repealer states. Considering the economic reality that many single-state classes cannot achieve the economies of scale that antitrust plaintiffs need to make their claims financially viable, disallowing multistate repealer classes would also undermine the repealer states’ legitimate policy choices and weaken antitrust enforcement more broadly.
On the issue of passed-on overcharges, AAI urges the Court not to take up Defendants’ invitation to revisit its en banc holding in Olean Wholesale Grocery Coop. v. Bumble Bee Foods, 31 F.4th 651 (9th Cir. 2022), that the potential presence of uninjured class members does not defeat class certification. It explains that the reasoning in Justice Kavanaugh’s often-cited dissent in Lab’y Corp. of Am. Holdings v. Davis, 605 U.S. 327 (2025), does not apply in antitrust cases. Finally, AAI explains that the antitrust logit model is a reliable and commonly used model in antitrust cases, and that, so long as such a model relies on reasonable assumptions, arguments about the reliability of those assumptions are merits questions for a factfinder, the resolution of which is not necessary to resolve certification disputes.
The brief was written by AAI Senior Counsel David O. Fisher, with assistance from AAI Research Fellow Beryl Emmerich and AAI Extern Tate Weston.
Read the brief: In re Juul Labs, Inc. Antitrust Litigation
