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Daubert’s Mystery Surcharge: The Heavy Exclusion of Economic Expert Testimony in Antitrust Litigation

BY | July 21, 2023

When a Berkeley economist discovered a California “mystery gasoline surcharge” it seemed inevitable that an antitrust review would follow. Excluding all other factors, Californians paid a gasoline surcharge that could…

When a Berkeley economist discovered a California “mystery gasoline surcharge” it seemed inevitable that an antitrust review would follow. Excluding all other factors, Californians paid a gasoline surcharge that could apparently be explained only by anticompetitive market behavior. But while a class action predictably followed, what happened next seemed less predictable: a district court dismissing a class action antitrust complaint by excluding, under Daubert v. Merrell Dow Pharmaceuticals,

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