UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD DENNIS, et al.,

 Plaintiffs, 

 v. 

THE ANDERSONS, INC., et al.,

 Defendants.

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 No. 20-cv-4090 

 Judge Robert W. Gettleman

 Magistrate Judge Keri L. Holleb Hotaling

MEMORANDUM OPINION AND ORDER

In a motion pending before the district judge, Plaintiffs Richard Dennis, Port 22, LLC, and 

Michael Glass seek to proceed on behalf of a class of similarly situated wheat futures market 

participants on claims of market manipulation under the Commodity Exchange Act, violations of 

the Sherman Antitrust Act, and unjust enrichment and restitution/disgorgement under Illinois law, 

against Defendants, The Andersons, Inc. and Cargill, Inc. Currently before this Court are 

Plaintiffs’ and Defendants’ dueling motions to strike the opposing side’s expert witness (Dkts. 

143, 150), which were referred by the district judge to resolve before the district court rules upon

Plaintiffs’ class certification motion. (Dkt. 159.) For the reasons set forth below, Plaintiffs’ Motion 

to Exclude the Testimony of Professor Justin McCrary (Dkt. 150) is denied, and Defendants’ 

Motion to Exclude the testimony of Plaintiffs’ Class Certification Expert Dr. Craig Pirrong (Dkt. 

143) is granted in small part but otherwise denied. 

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BACKGROUND1

Plaintiffs assert Commodity Exchange Act and Sherman Antitrust Act claims, alleging that 

The Andersons, Inc. (“TAI”) and Cargill Incorporated (“Cargill”), who were supposed 

competitors, operated multiple grain storage warehouses in Ohio and collaborated to manipulate 

prices of soft red winter wheat (“SRW wheat”) futures and options contracts on the Chicago Board 

of Trade (“CBOT”). The nutshell theory of Plaintiffs’ case is as follows: TAI sold SRW wheat to 

the major purchasers in October and November 2017 to suppress demand for physical SRW wheat

and then, on November 29, 2017, registered for delivery two thousand certificates of CBOT 

December 2017 SRW wheat. (Dkt. 99, Third Amended Complaint ¶¶ 1-7.) This registration 

(falsely, Plaintiffs say) signaled that TAI would sell ten million bushels of physical SRW wheat to 

parties holding long positions in December 2017 SRW wheat futures and caused a marked price 

decrease in the December 2017 SRW wheat futures contract and widened the spread between the 

December 2017 and March 2018 SRW wheat futures contracts. (Id. ¶¶ 1, 4-12, 64-74, 76-90.) TAI 

and Cargill later repurchased some of the shipping certificates TAI had delivered at the decreased 

prices. (Id. ¶ 12.) Plaintiffs allegedly transacted in December 2017 and March 2018 SRW wheat 

futures and lost money because of the decreased prices caused by the scheme. (See, e.g., id. ¶¶ 23, 

32, 33, 75.)

With certain exclusions unnecessary to enumerate here, Plaintiffs seek to certify a class of 

individuals or entities who purchased one of three positions in CBOT SRW wheat ((1) a long 

position in CBOT SRW wheat December 2017 or March 2018 futures contracts; (2) a long position 

in CBOT call options on CBOT SRW wheat March 2018 futures contracts; or (3) a short position 

1

 Most of the parties’ filings relevant to the Court’s decision were filed under seal, but the Court cannot justify 

sealing this opinion. See Baxter Int’l Inc. v. Abbott Labs., 297 F.3d 544, 546-47 (7th Cir. 2002); Union Oil v. Leavell, 

220 F.3d 562, 567-68 (7th Cir. 2000). For consistency, where paragraph numbers are unavailable, the Court cites to 

the docketed page number stamped at the top of the parties’ filings, rather than any bottom-of-the-page page numbers.

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in CBOT put options on CBOT SRW wheat March 2018 futures contracts)) and then liquidated 

the position through either an offsetting market transaction between November 30, 2017 and 

December 14, 2017 or a sale of a long position in a CBOT March 2018 futures contract that was 

initiated prior to December 14, 2017 but closed after that date. (Dkt. 148 at 5.)

In their class certification filings, Plaintiffs rely upon the initial and rebuttal reports of their 

expert, Dr. Craig Pirrong, to establish requirements for class certification, including typicality, and 

predominance of common issues over individual issues. Dr. Pirrong opines in relevant part that 

Defendants artificially depressed prices of the December 2017 and March 2018 SRW wheat 

futures through a market manipulation that injured Plaintiffs on a class-wide basis; Dr. Pirrong 

also provides a methodology for determining individual damages. Through the report of their 

expert, Professor Justin McCrary, Defendants purport to challenge the reliability of Dr. Pirrong’s 

studies. Plaintiffs attack Professor McCrary’s qualifications.2

 

LEGAL STANDARD

The Court “must make a conclusive ruling [pursuant to the recently amended Federal Rule 

of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993)] on any 

challenge to [an] expert’s qualifications or submissions” before ruling on a class certification 

motion, whenever the “expert’s report or testimony is ‘critical to class certification[.]’” Messner 

v. Northshore Univ. HealthSys., 669 F.3d 802, 812 (7th Cir. 2012) (citing Am. Honda Motor Co. 

v. Allen, 600 F.3d 813, 815-16 (7th Cir. 2010)). “If the challenge is to an individual’s 

qualifications, a court must make that determination ‘by comparing the area in which the witness 

has superior knowledge, skill, experience, or education with the subject matter of the witness’s 

testimony.’” Am. Honda Motor Co., 600 F.3d at 816 (citation omitted). “The court must also 

2

 The experts’ reports appear in various forms (sealed) in the record. The Court cites the following: (1) Dr. Pirrong’s 

initial report (Dkt. 185); (2) Dr. Pirrong’s rebuttal report (Dkt. 186); and the Expert Report of Professor McCrary’s 

(Dkt. 149-39).

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resolve any challenge to the reliability of information provided by an expert if that information is 

relevant to establishing any of the Rule 23 requirements for class certification.” Id. The Court must 

resolve the challenges to the experts’ qualifications and methodologies because the parties rely 

upon those experts’ opinions in relation to class certification.

“In performing its gatekeeper role under Rule 702 and Daubert, . . . the district court must 

evaluate: (1) the proffered expert’s qualifications; (2) the reliability of the expert’s methodology; 

and (3) the relevance of the expert’s testimony.” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 

771, 779 (7th Cir. 2017); Fed. R. Civ. P. 702. In resolving challenges to an expert’s testimony or 

reports, the Court must consider the proposed expert’s training and experience, as well as the 

methodologies upon which the expert’s conclusions are based. Smith v. Ford Motor Co., 215 F.3d 

713, 718 (7th Cir. 2000). The Court has considerable discretion in addressing the reliability of 

expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

The Court is the designated “gatekeeper” of expert testimony, and “the key to the gate 

is . . . the soundness and care with which the expert arrived at [the] opinion[,]” not “the ultimate 

correctness of the expert’s conclusions[.]” Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 

(7th Cir. 2013). Exclusion of expert testimony “is the exception rather than the rule,” Federal Rule 

of Evidence 702 advisory committee note to the 2000 amendment, and “the traditional and 

appropriate means of attacking shaky but admissible evidence” are “[v]igorous cross-examination, 

presentation of contrary evidence, and careful instruction on the burden of proof[,]” Daubert, 509 

U.S. at 596.3

3

 Neither party requests an evidentiary hearing, and, given the nature of the parties’ challenges (in particular, the 

lack of direct challenges to the methodologies themselves) the Court deems a hearing unnecessary. See Kumho Tire, 

526 U.S. at 152 (explaining trial court has “discretionary authority [] to avoid unnecessary ‘reliability’ proceedings in 

ordinary cases where the reliability of an expert’s methods is properly taken for granted”).

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DISCUSSION

I. Professor Justin McCrary

The Court begins with Plaintiffs’ challenge to Defendants’ proposed expert, Professor 

Justin McCrary, who is proffered in large part to critique the analysis of Dr. Craig Pirrong, 

Plaintiffs’ expert, because excluding Professor McCrary could affect the analysis of Dr. Pirrong’s 

submissions. Professor McCrary is an “economist with expertise in microeconomics, economic 

modeling, and statistical method,” who teaches at the Law School at Columbia University. (Dkt. 

149-39 ¶ 1.) He has taught courses on economic theory econometric theory, antitrust, law and 

economics, and statistics and is a reviewer for leading peer-reviewed economics journals. (Id. ¶¶ 1, 

6.) He served on the Board of Directors of the American Law and Economics Association and has 

published papers in prominent economic journals. (Id. ¶¶ 1-5.) Professor McCrary does not purport 

to be an expert in commodities futures trading or commodities manipulation, never having 

published regarding commodities markets or the theory of storage. (See id. ¶¶ 1-10.) He was 

retained to “review and evaluate the analyses and class-related opinions set forth in the Expert 

Report of Dr. [] Pirrong” and “opine on certain class certification opinions raised by Plaintiffs’ 

Third Amended Class Action Complaint.” (Id. ¶ 10.) Plaintiffs argue Professor McCrary: (1) is 

unqualified to give an opinion in this class action alleging market manipulation in wheat futures 

and options; (2) tenders opinions that are unreliable because they lack a scientific basis and he has 

never performed such quantitative work before; and (3) offers irrelevant opinions.

A. Professor McCrary’s Qualifications

Plaintiffs do not question Professor McCrary’s “expertise in microeconomics, economic 

modeling, and statistical methods” but challenge his expertise in “commodities futures trading or 

in commodities manipulation generally.” (Dkt. 151 at 9, 13-15.) They emphasize Professor 

McCrary’s published works have focused on United States equities and options markets, rather 

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than the futures market, wheat futures and options markets, or the SRW wheat market. (Id. at 14 

& n.45.) Because securities and commodity futures and options are disparate, governed by 

different regulatory schemes and enforcement agencies, Plaintiffs insist Professor McCrary is 

unqualified to render an opinion in the realm of the commodity futures market (id. at 14), a 

conclusion they say is underscored by his professed unfamiliarity with “basic industry 

terminology” like “front month,” “spot month,” “strong stopper,” and “cash contract.” (Id. at 15.)

Defendants respond that Professor McCrary is proffered to critique Dr. Pirrong’s economic 

and statistical models and need not be an expert in commodities futures or agricultural crops to 

make such a critique. (Dkt. 163 at 9.) They note that McCrary’s “expert work, classroom teaching, 

and academic journal referee experience also spans commodity markets such as energy/electricity, 

proteins, and precious metals” (id. at 9 & n.5), and emphasize he is not offering opinions that turn 

on regulatory differences between the two marketplaces. (Id. at 11 n.6.) Further, they note Plaintiff 

made no effort to “explain why [the “industry terms” they say he should have known] are relevant” 

to “either expert’s opinions.” (Id. at 11.) The Court agrees. 

As an initial matter, Plaintiffs cite just two cases to generally support their argument that 

Professor McCrary is unqualified to offer his critiques, and both are proffered to support their 

argument that his purported unfamiliarity “with basic industry terminology” warrants his 

exclusion. But neither of those cases, Payne v. Wyeth Pharms., Inc., No. 2:08 Civ. 119, 2008 WL 

5586824, at *4 (E.D. Va, Nov. 17, 2008), and Berlyn, Inc. v. Gazette Newspapers, Inc., 214 

F. Supp. 2d 530, 533 (D. Md. 2002), supports that proposition as to Professor McCrary. In Payne, 

although defendants raised the expert’s unfamiliarity with certain terminology, the court did not 

overtly address the argument or rely upon it in excluding the expert. 2008 WL 5585824, at *5. In 

Berlyn, the expert was proffered by the plaintiffs in their case in chief on antitrust claims of an 

alleged newspaper monopoly; although he considered himself an expert in the business side of the 

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newspaper industry, he was not an economist or attorney by trade, experience, or education, and 

had never performed antitrust or market analyses. 214 F. Supp. 2d at 534-38. The court found him 

unqualified to offer a market definition opinion, although he was qualified to offer pricing and lost 

profits opinions. Id. at 537-41. His unfamiliarity with any terminology was not the primary reason 

portions of his intended testimony were excluded. In any event, Professor McCrary’s unfamiliarity 

with particular “industry” terms Plaintiffs list (that he apparently does not employ and Plaintiffs 

do not suggest he should have employed) has no apparent bearing on his qualifications to offer his 

opinions as to statistical errors in Dr. Pirrong’s opinions. 

Plaintiffs point to no case in which an expert like Professor McCrary was excluded on 

similar grounds, and the Court has located none. Plaintiffs’ surface-level attack on Professor 

McCrary’s background and education (Dkt. 151 at 13-15) is insufficient to demonstrate his lack 

of qualification, and the Court declines to exclude Professor McCrary’s opinions, which Plaintiffs 

do not deny are rooted in statistics and economics, merely because he neither purports to be nor 

appears to be an expert in commodities futures trading or manipulation. See In re Testosterone 

Replacement Therapy Prod. Liab. Litig. Coordinated Pretrial Proc., No. 14-cv-748, 2017 WL 

1833173, at *6 (N.D. Ill. May 8, 2017) (noting “the inquiry into an expert’s qualifications is not a 

generalized one” and rejecting arguments that expert in statistical and mathematical matters was 

unqualified due to lack of qualification as to “specific sub-fields of statistics—biostatistics and 

epidemiology—” because opinions he offered were “within the scope of his expertise as a 

statistician”). Plaintiffs identify no particular opinion Professor McCrary was unqualified to give, 

and the Court finds he is qualified to render the opinions he offers. (See Dkt. 149-39 ¶¶ 1-10, Appx. 

C.)

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B. Reliability of Professor McCrary’s Opinions

Plaintiffs argue Professor McCrary’s opinions are unreliable, first, for lacking a scientific 

basis—because he opines Dr. Pirrong’s analyses fail to account for confounding fundamental 

factors that Professor McCrary himself neither identifies nor analyzes to determine any potential 

impact. (Dkt. 151 at 16.) But, as Defendants retort, that was not Professor McCrary’s task (Dkt. 

163 at 12); instead, he was to analyze Dr. Pirrong’s analysis and class-related opinions and other 

class-certification issues. (Dkt. 149-39 ¶ 10.) Neither Daubert nor Rule 702 required Professor 

McCrary to perform independent studies. See Anderson v. Raymond Corp., 61 F.4th 505, 510 (7th 

Cir. 2023) (“[W]e [have] expressly rejected the notion that hands-on testing is an absolute 

prerequisite to the admission of expert testimony.”) (citation omitted); Wyman v. Sunbeam Prods.,

Inc., No. 17-CV-4926-BLF, 2021 WL 1531000, at *3 (N.D. Cal. Apr. 19, 2021) (“Plaintiffs have 

not pointed to Court to any authority suggesting that Dr. Hamilton, a defense rebuttal expert, is 

obligated to conduct his own studies or tests.”) (citation omitted); In re Zyprexa Prods. Liab. Litig., 

489 F. Supp. 2d 230, 285 (E.D.N.Y. 2007) (“[D]efendants’ experts have a less demanding task” 

because “they have no burden to produce models or methods of their own” and “need only attack 

those of plaintiffs’ experts.”). And, although Plaintiffs label Professor McCrary’s analysis thin and 

Professor McCrary a mere mouthpiece for the defense (Dkt. 151 at 16), the Court finds he 

sufficiently explained the underpinnings for his opinions, which flow from his review of relevant 

literature, his expertise, experience and knowledge. (Dkt. 149-39 at 40-124.) 

Finally, Plaintiffs attack an isolated sentence of Professor McCrary’s opinion regarding Dr. 

Pirrong’s event study (Dkt. 151 at 17) and further attack his criticism of Dr. Pirrong’s damages 

model because Professor McCrary had “never worked with” data types he used in performing his 

calculations. (Id. at 18.) The Court agrees with Defendants that the former argument takes

Professor McCrary’s statement out of context (see Dkt. 163 at 17), and the latter argument lacks 

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force because Plaintiffs identify no errors in Professor McCrary’s calculations. (Id. at 17-18.) The 

Court declines to strike Professor McCrary’s testimony as unreliable.

C. Relevance of Professor McCrary’s Opinions

Plaintiffs finally briefly recycle most of the foregoing arguments, which the Court already 

has rejected, into an argument that Professor McCrary’s opinions will not help the trier of fact. 

Again, the Court disagrees. Although Professor McCrary does regurgitate some record evidence 

(such as that SRW wheat would be aging between December 2017 and March 2018), he does not 

merely repeat evidence but adds his opinions to the evidence he recites, including that Dr. Pirrong 

should have accounted for the aging of the wheat and other factors. For these reasons and those 

set forth above in addressing Plaintiffs’ prior arguments, the Court declines to strike Professor 

McCrary’s opinions as irrelevant to the Court’s class certification decision. As a rebuttal witness, 

Professor McCrary’s opinions are relevant to understanding and analyzing Dr. Pirrong’s opinions 

regarding class certification.

II. Dr. Craig Pirrong

At the class certification “stage, all that [Plaintiffs] [are] required to do [i]s show that the 

class’s claims will rely on common evidence[,]” Ploss v. Kraft Foods Group, Inc., 431 F. Supp. 

3d 1003, 1021-22 (N.D. Ill. 2020), and damages are “capable of proof at trial through evidence 

that is common to the class.” Messner, 669 F.3d at 818.

To meet these limited showings, Plaintiffs proffer their expert witness, Dr. Pirrong, an 

economist, who intends to testify that Defendants’ alleged manipulation artificially deflated prices 

in the December 2017 and March 2018 SRW wheat futures markets and caused damages to the 

proposed class that are capable of calculation on a class-wide basis. In support, he presents: (1) an 

event study with regression analysis meant to measure the existence and amount of alleged priceartificiality in the December 2017 and March 2018 SRW futures and options contracts that is 

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attributable to Defendants’ conduct rather than chance or other market factors; and (2) a damages 

model that takes the output from the event study as an input to calculate a range of aggregate 

damages. Such models may meet Plaintiffs’ burdens at the class certification stage. See Ploss, 431

F.3d at 1018, 1022 (holding Plaintiffs could show class claims will rely on common evidence by 

“relying on Pirrong’s event study” and that damages calculations stemming from event studies 

could suffice to show proof of damages would be capable of proof at trial through evidence 

common to the class). Relying upon the proffered testimony of Professor McCrary, Defendants 

attack Dr. Pirrong’s models as flawed and several of his opinions as improper.

4 The Court 

addresses Defendants’ arguments in turn.

A. Dr. Pirrong’s Event Study with Regression to Predict “But For” Wheat Prices

Dr. Pirrong first employs an event study with regression analysis intended to predict what 

prices would have been absent Defendants’ actions and statements. (Dkt. 185 ¶ 86.) In essence, 

“[Dr.] Pirrong compares ‘an outcome (called the dependent variable) and one or more factors 

(called independent variables) that may be related to that outcome.’” Ploss v. Kraft Foods Group, 

Inc., 637 F. Supp. 3d 561, 572 (N.D. Ill. 2022) (quoting Manpower, Inc. v. Ins. Co. of Penn., 732 

F.3d 796, 808 (7th Cir. 2013)). “[E]xperts are given substantial ‘latitude’ in their selection of 

variables and data.” Id. (quoting Manpower, 732 F.3d at 808). 

In the context of this case, Dr. Pirrong’s regression model uses other grain commodities 

traded on CBOT as control variables; he estimates the historical relationship among the SRW 

wheat futures prices and the control variables by using “a control period consist[ing] of data from 

4 Defendants do not challenge Dr. Pirrong’s extensive qualifications, which are set out in Dkt. 185 at pages 4-7 and 

101-15 and include approximately 30 years of concentrating professionally on competition and manipulation of prices 

with a focus on Chicago Mercantile Exchange wheat, soybean, and corn futures contracts; publishing a dozen peerreviewed articles and a book on commodity futures manipulation and pricing; presenting to and consulting with federal 

agencies on manipulation; and testifying as an expert. See also Ploss v. Kraft Foods Group, Inc., 637 F. Supp. 3d 561, 

572 (N.D. Ill. 2022) (briefly addressing Dr. Pirrong’s qualifications, including “numerous reports about wheat and 

other commodity futures contracts”).

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March 1 to November 29 for the CBOT wheat futures contract for each year from 2005 through

2017.” (Dkt. 185 ¶¶ 111-12.) According to Dr. Pirrong, the model computes what would have 

been, but for Defendants’ conduct, the prices for December 2017 and March 2018 SRW wheat 

futures for each trading day between November 30, 2017 and December 14, 2017. (Id. ¶¶ 86-87, 

116.) He attributes the difference between his model’s output of estimated prices for December 

2017 and March 2018 SRW wheat futures prices and the actual December 2017 and March 2018 

SRW wheat futures prices to a “price artificiality” due to Defendant’s conduct. (Id. ¶¶ 106-22, 

135-83.)

Defendants acknowledge that “[s]tatistical regression is an established methodology.” 

(Dkt. 144 at 4.) See also Ploss, 637 F. Supp. 3d at 572 (emphasizing prevalence of “[r]egression 

studies in general, and event studies in particular . . . in complex litigation”). They argue, though, 

that Dr. Pirrong “employed a ‘reliable methodology in an unreliable way” because the “results”

are not “statistically significant” under generally accepted statistical principles and lead to an 

unacceptably high rate of false positives (predicted price manipulation in years in which none is 

alleged). (Dkt. 144 at 5-11 (citation and quotation marks omitted).) This means, they insist, the 

study “cannot rule out” other potential causes of the SRW wheat futures price changes and has

“dubious predictive value.” (Id. at 5-11.)

1. Statistical Significance

Defendants argue that Dr. Pirrong’s testimony should be excluded because, despite the 

prevalence of event studies in similar cases, this “event study is unreliable.” (Dkt. 144 at 5, 6, 13.) 

They reference comments to the 2023 amendment to Rule 702 that “critical questions of the 

sufficiency of an expert’s basis, and the application of the expert’s methodology” go to the 

admissibility of the challenged testimony or report. (Dkt. 144 at 4.) 

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Defendants hinge this argument on testing of the results5 of Dr. Pirrong’s analysis. (Id. at 

4-9.) “Statisticians often measure the accuracy of a regression model’s estimates using . . . 

‘significance testing’ or ‘null hypothesis testing.’” In re High-Tech Emp. Antitrust Litig., No. 

11-cv-02509-LHK, 2014 WL 1351040, at *8 (N.D. Cal. Apr. 4, 2014) (citing Federal Judicial 

Center, Reference Manual on Scientific Evidence 241 (3d ed. 2011) (“Ref. Manual”)). In other

words, they “determine whether the results are statistically significant enough [] that they can reject 

the ‘null hypothesis’ of zero effect, which means that the independent variable being tested has no

actual impact on the dependent variable and that whatever relationship is shown in the model 

occurred due to random chance.” Id. (emphasis in original) (citing Ref. Manual at 342, 354). 

“Statistical significance is determined by reference to a “p-value[,]” which “‘represents the 

‘probability that a coefficient of this magnitude or larger could have occurred by chance if the null 

hypothesis were true.’” Id. (citing Ref. Manual at 241.) “If the p-value is less than or equal to the 

selected significance level, the null can be rejected because the result is said to be ‘statistically 

significant at that level, which means that the probability that the observed association is the result 

of chance rather than a true association is less than the stated significance level.” Id. (citation 

omitted). “If the p-value is greater than the significance level, then the result is said to be 

statistically insignificant at that level, which means there is insufficient evidence at the selected 

significance level to reject the ‘null hypothesis’ of the observed association being a product of 

chance rather than true association.” Id. (citation omitted). “For example, a variable with a p-value 

greater than 0.05 means that the variable’s coefficient is not statistically significant at the 5% 

5 The Court is mindful of the Seventh Circuit’s repeated caution that “[b]y now it should be clear that” the inquiry 

regarding whether an expert’s opinion should be excluded “focuses on the expert’s methodology, not whether we 

agree with his conclusion,” Anderson v. Raymond Corp., 61 F.4th 505, 510-11 (7th Cir. 2023), which is in tension 

with Defendants’ arguments. That said, as Dr. Pirrong explains, the tests on the results mentioned here have utility in 

evaluating the event studies. (See Dkt. 185 ¶¶ 122-30, 136.) Moreover, as discussed below, courts have frequently 

examined such testing in analyzing the reliability of similar event studies; the Court accordingly will address 

Defendants’ argument despite its focus on the results of Dr. Pirrong’s study.

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significance level and that one cannot reject the null hypothesis that the variable has no effect on 

the dependent variable.” Id. 

As Defendants note, Dr. Pirrong himself describes p-values as “giv[ing] the probability of 

observing the residual,” which, here, is price artificiality, and concedes that “conventional 

thresholds” for statistical significance are five percent (0.05) and ten percent (0.1). (Dkt. 144 at 9.) 

Defendants highlight dates for which p-values were not statistically significant at the five percent 

level—four of eleven days within the December 2017 SRW wheat regression analysis, December

11 through December 14, 2017. (Dkt. 144 at 10.) And, they stress, for the March 2018 SRW wheat 

contracts, not one day in the eleven-day regression study yielded statistically significant results at 

the five or ten percent levels (Dkt. 144 at 10); in fact, the associated p-values were well above 

those levels, ranging from 0.26 to 0.43. (Dkt. 185 ¶ 135.) Defendants assert that p-values above

0.05 indicate unreliable regression study results and emphasize Dr. “Pirrong offers no thresholds 

for determining when his event study results should be considered statistically significant,” despite 

having agreed that one must “choose a threshold” to “establish statistical significance.” (Dkt. 144 

at 10-12.) 

Plaintiffs counter that Defendants’ overt challenge to Dr. Pirrong’s conclusions (rather than 

the methodology for the event studies) go to the weight they should be given, rather than the 

admissibility. (Dkt. 160 at 5-6.) Plaintiffs also note “Dr. Pirrong [in his rebuttal report] employed 

‘bootstrapping’ and ‘GARCH’ analyses, which are well-recognized ways for calculating pvalues,” used a shorter “control period of 2015 through 2017[,]”and returned p-values of between 

0.000001 and 0.0653156. (Dkt. 160 at 7-8.) The GARCH analysis chart Plaintiffs included 

indicates statistically significant results at the five percent level on ten of eleven days and at the 

ten percent level on all eleven days of the December 2017 SRW wheat futures contracts. (Dkt. 160 

at 8.) Defendants respond that Dr. Pirrong disclaims any intent to rely on event studies outside 

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those performed in his initial report for his opinions and, in any event, GARCH-method-generated 

p-values for the shorter control period for the March 2018 SRW wheat futures contracts ranged 

between .0586518 and 0.2569648, with only three of eleven days statistically significant at the ten 

percent level. (Dkt. 169 at 10-12.)

The Court agrees with Plaintiffs. First, Defendants seek to exclude all of Dr. Pirrong’s 

results for his failure to overtly adopt a clear statistical significance threshold and most of his 

results because the p-values yielded from his event studies were above 0.05 for four of eleven days 

in the December 2017 study and all eleven days in the March 2018 study. (See Dkt. 144 at 13 

(“[T]he results of Dr. Pirrong’s event study results should be excluded[.]”).) The Court is 

unconvinced that all of his results should be excluded due to some p-values above 0.05, particularly 

where seven of eleven days (November 30 through December 8, 2017) within the December 2017 

SRW wheat contracts regression analysis returned p-values with statistical significance at the five 

percent level. Nor does the Court find that Dr. Pirrong’s non-articulation of a statistical 

significance threshold warrants blanket exclusion of his results here.

Second, even if Defendants sought to exclude just dates for which a p-value above 0.05 

was returned, the Court under these circumstances declinesto adopt a “hard and fast rule” requiring 

p-values of 0.05 or below, which in essence “evaluat[es] [statistical significance] as a binary 

question” where “statistical significance l[ies] at the 4.99% level but not at the 5.01% level.’” In 

re Chi. Bridge & Iron Co. N.V. Sec. Litig., No. 17 Civ. 1580 (LGS), 2020 WL 1329354, at *4 

(S.D.N.Y. Mar. 23, 2020); see also Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 362 (7th Cir. 

2001) (emphasizing, in employment discrimination context, “[t]he five percent test is arbitrary”). 

But “[l]itigation generally is not fussy about evidence[,]” and it is up to judges “to determine 

whether a particular significance level, in the context of a particular study in a particular case, is 

too low to make the study worth [] consideration.” Kadas, 255 F.3d at 362. Dr. Pirrong also 

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emphasizes that “eminent statisticians” have increasingly criticized the use of statistical 

significance cutoffs “because it is misleading and leads to erroneous conclusions” and that one 

should avoid “‘dichotomization as statistically significant or not.’” (Dkt. 185 ¶ 124 (citation 

omitted).)

The Court, like many others presented with the question, declines to use statistical 

significance at the five percent level as a proxy for reliability, and thus admissibility, for the 

purposes of Rule 702 and Daubert. See, e.g., In re Testosterone Replacement Therapy Prod. Liab. 

Litig., No 17-cv-3775, 2023 WL 7183216, at *3 (N.D. Ill. Nov. 1, 2023) (holding “better approach 

[i]s to avoid creating a bright-line rule and to instead examine the different bases for the experts’ 

opinions . . .”); In re Chi. Bridge & Iron, 2020 WL 1329354, at *4-5 (discussing cases and 

declining to require statistical significance at five percent level for admissibility in part because 

having a p-value does not prove price impact was absent); see also In re EpiPen (Epinephrine 

Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., No. 17-MD-2785-DDC-TJJ, 2020 WL 

1164869, at *31 (D. Kan. Mar. 10, 2020) Rooney v. EZCORP, Inc., 330 F.R.D. 439, 450 (W.D. 

Tex. 2019); In re High-Tech Emp. Antitrust Litig., No. 11-CV-02509-LHK, 2014 WL 1351040, at 

*15 (N.D. Cal. Apr. 4, 2014).

This Court’s views are in line with those expressed in In re Photochromic Lens Antitrust 

Litig., No. 8:10-cv-00984-T-27EA, 2014 WL 1338605, at *26-27 (M.D. Fla. Apr. 3, 2014), that 

an expert’s “use of a 50% measure of statistical significance” is not “by itself, [] sufficient 

justification” to find his methodology unreliable at the class certification level. And, despite Dr. 

Pirrong’s use, in other cases or contexts, of a 5% or 10% statistical significance threshold, he 

articulates his bases for submitting his analyses with p-values that exceed those commonly 

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accepted parameters here.6 (See, e.g., Dkt. 185 ¶¶ 123, 128-34, 136-37, 154-55, 176-203; Dkt. 186 

¶ 64); see In re Photochromic Lens Antitrust Litig., 2014 WL 1338605, at *27.

Considering the entire data set presented, Dr. Pirrong’s explanations, and the class 

definition Plaintiffs propose regarding transactions of December 2017 and March 2018 SRW 

wheat set forth above, Defendants’ arguments go to the weight, rather than the admissibility, of 

the regression study results. Dr. Pirrong’s event study results in the December 2017 and March 

2018 SRW Wheat futures contracts are sufficiently reliable for consideration. Professor McCrary’s 

criticisms, which distill to an insistence that use of such data is outside the typical practice of 

statisticians, does not alter this determination. See In re Photochromic Lens, 2014 WL 1338605, 

at *26 (noting opposing expert failed to justify rejecting that approach beyond arguing it was 

“simply out of bounds of what economists do”). Here, as in prior cases, “Defendants’ concerns 

with particular facets of [Dr.] Pirrong’s methodology, and with the conclusions he reaches, are 

generally better addressed through cross-examination or presentation of contrary evidence” but 

“are not grounds for exclusion ab initio.” Ploss, 637 F. Supp. 3d at 573.

2. Rate of False Positives

Defendants next assert Dr. Pirrong’s study is undermined by the rate of “false positives,” 

or instances in which Dr. Pirrong’s model predicts price artificiality in years in which no 

manipulation is alleged. (Dkt. 144 at 13.) Defendants argue the higher the threshold for statistical 

significance one accepts as to the event study, the higher the rate of false positives the model 

returns. Accepting, for example, a 43% threshold for statistical significance (drawn from the 

highest p-value result Dr. Pirrong endorses, 0.43, applied across both the December 2017 and 

March 2018 studies) suggests price manipulation on 85% of the days for which Plaintiffs do not 

6

 The Court expresses no opinion on whether the outcome would be the same if the March 2018 event study were 

presented in isolation.

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claim manipulation. (Dkt. 144 at 14.) Adopting a 5% statistical significance level (which would 

result in statistical significance for the results of just seven days in the December 2017 study and 

none in the March 2018 study) garners a 19.66% rate of false positives. Defendants argue that 

these rates of false positives show the event study does not reflect a reliable application of 

statistical methods to this case (Dkt. 144 at 14-15 (citing Fed. R. Evid. 702(d); ATA Airlines, Inc. 

v. Fed. Exp. Corp., 665 F.3d 882, 896 (7th Cir. 2011))), and even Dr. Pirrong has acknowledged 

there may be a point at which there are “too many false positives.” (Dkt. 144 at 14 (citation 

omitted).)

Plaintiffs criticize Defendants’ use of 0.43 across both the December 2017 and March 2018 

periods and respond that Dr. Pirrong observed no evidence of systemic false positives when testing 

his event study for every expiration period from 2001 through 2017. (Dkt. 160 at 14.) They observe 

Dr. Pirrong never adopted a “43% threshold for statistical significance” across both studies but

instead argues that the March 2018 event study results “cannot be evaluated in isolation of the 

results for the December 2017 SRW wheat futures.” (Dkt. 160 at 14-15.)

Although the explanation regarding false positives is not robust, the Court nevertheless 

finds that Dr. Pirrong’s testimony is “closer to shaky than unreliable,” Kleen Prods. LLC v. Int’l 

Paper, No. 10-cv-5711, 2017 WL 2362567, at *6 (N.D. Ill. May 31, 2017). First, the Court has 

resolved the related argument regarding p-values, finding they do not render Dr. Pirrong’s 

testimony inadmissibly unreliable, in large part due to Dr. Pirrong’s explanation that “sound 

economic reasoning” indicates the impact of Defendants conduct would not have dispersed within 

days, despite the p-value results, and the spread was wider than anticipated for the December 2017 

through March 2018 SRW wheat futures. (See Dkt. 185 ¶¶ 128-34.) Because Defendants’ false 

positives argument spins off from the p-values discussion and applies an across-the-board 43% 

threshold for statistical significance not adopted by Dr. Pirrong, the Court is disinclined to reach a 

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different result here. Second, unlike the expert analyses the Seventh Circuit found should have 

been excluded in ATA Airlines, Inc., 665 F.3d at 889-96, on which Defendants rely, Defendants 

point to no flaws in Dr. Pirrong’s inputs to his studies. Defendants may explore false positives or 

other questions as to Dr. Pirrong’s studies through traditional evidentiary mechanisms. See In re

Term Commodities Cotton Futures Litig., No. 12-CV-5126 (ALC), 2020 WL 5849142, at *20-21 

(S.D.N.Y. Sept. 30, 2020) (noting “[t]he Court’s only duty is to determine whether Dr. Pirrong’s 

testimony is grounded in sufficient facts and data, . . . based on reliable principles and methods, 

and [] he applied those principles and methods to this case,” and finding plaintiffs “met this 

burden,” leaving “[a]ny additional deficiencies or questions as to Dr. Pirrong’s artificiality 

testimony [to] be further explored at trial”) (citation omitted).

B. Dr. Pirrong’s Damages Estimates

Dr. Pirrong proffers damages methodologies to calculate individual damages (Dkt. 185 ¶¶ 

234-38) and estimate aggregate class-wide damages using linear programming (the LP model)

(Dkt. 185 ¶¶ 239-69). According to Dr. Pirrong, “knowledge of each Class member’s purchases 

and sales of the December 2017 . . . and March 2018 SRW Wheat Futures contracts, and options 

thereon . . . is not known or knowable at this stage of the litigation”; instead, public information 

allows one “to place bounds on aggregate damages.” (Id. ¶¶ 239-40, 246-58.) At this stage, 

Plaintiffs’ “burden is “only to demonstrate that the element . . . is capable of proof at trial through 

evidence that is common to the class rather than individual to its members.” Messner, 669 F.3d at 

818 (emphasis in original, quotation marks and citations omitted).

1. Dr. Pirrong’s Use of “Permanent Artificiality” in March 2018 SRW 

Wheat Futures from December 14, 2017 through March 14, 2018

Defendants first attack Dr. Pirrong’s opinion that the March 2018 SRW wheat futures 

contract had a permanent fixed artificial price depression of 1.2¢ per bushel from December 14, 

2017 to March 14, 2018. (Dkt. 144 at 15; see also Dkt. 185 ¶ 247. Defendants assert this use of a 

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constant 1.2¢ residual is undermined by Dr. Pirrong’s choice to use a day-to-day approach for 

other transactions, as well as his opinion that publicly available information is immediately 

incorporated into the SRW futures marketplace. (Dkt. 144 at 15-16.) 

Dr. Pirrong, though, opines that Defendants “distorted consumption by making excessive 

deliveries,” only a “fraction” of which they later repurchased, causing immediate consumption of 

wheat that “should have remained in storage for consumption later.” (Dkt. 185 ¶ 116.) The effects 

of their actions “persisted into the indefinite future beyond November 30, 2017,” thus “distort[ing] 

supply-demand fundamentals far into the future” and causing ongoing effects on prices. (Id. ¶¶ 

116-17, 119, 122.) This price artificiality, Dr. Pirrong asserted, would remain constant after the 

December 2017 SRW wheat contract expired both because Defendants’ actions in the December 

contract could not affect prices after the expiration, and in an efficient futures market, the impacts 

of Defendants’ actions would be reflected in prices quickly and permanently.” (Id. ¶ 247.) 

Dr. Pirrong’s explanation provides support for his choice. And, despite Defendants’ attack, 

his testimony is not “unsupported ipse dixit” because, rather than “pluck his conclusions out of 

thin air[,]” he reviewed the identified records, performed studies, and applied his extensive 

experience in futures markets to reach those conclusions. See Artis v. Santos, 95 F.4th 518, 526 

(7th Cir. 2024) (holding that, where expert reached conclusions “after reviewing the record, 

consulting his significant insurance and risk-assessment experience, and applying basic 

underwriting principles[,]” he had “provided ample foundation for his opinions”). Defendants of 

course remain free to challenge Dr. Pirrong’s use of a permanent artificiality for the March 2018 

SRW wheat contract.

2. Outputs of the Damages Model

Defendants challenge the LP Model outputs for the model’s reliance “on the daily 

artificiality residual (i.e., the daily artificiality estimate produced by the event study) to calculate 

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hundreds of thousands of hypothetical possible trade scenarios and conjures a supposed aggregate 

damage range for class members,” because it “cannot be applied to estimate the loss for any class 

member,” includes “computational errors that artificially inflate [the] damages estimate,” and does 

not “account[] for characteristics specific to many entities and individuals included in the group 

Pirrong purports to study,” like intraday traders and traders with offsets. (Dkt. 144 at 17-19.) 

The Court already addressed Defendants’ arguments regarding Dr. Pirrong’s use of a 

constant residual; it also is unnecessary for Plaintiffs to have precise damages calculations at this 

stage in the case. See Messner, 669 F.3d at 818. Dr. Pirrong’s calculations, based upon his event 

studies, are sufficient to meet Plaintiff’s low burden here. See Ploss, 431 F. Supp. 3d at 1018 

(holding in similar case that Plaintiffs had sufficiently shown that “proof of the damages caused 

by the scheme will either fail or succeed on a class-wide basis”). 

Defendants’ argument that “the LP model has several computational errors that artificially 

inflate [the] damages estimate” does not suggest damages cannot be calculated on a class-wide 

basis, and the Court is not seeking to calculate actual damages at this stage. As Plaintiffs point out

(Dkt. 160 at 17-19), Defendants’ related argument that Dr. Pirrong’s model did not account for the 

characteristics of certain traders, boils down to an argument that some members of the defined 

class “ultimately were not harmed” by Defendants conduct, i.e., that their claims “will fail on the 

merits if and when damages are decided,” which is “a fact generally irrelevant to the district court’s 

decision on class certification.” Ploss, 431 F. Supp. 3d at 1019 (quotation marks and citations 

omitted). Because Defendants do not contend that such class members as a rule “could not have 

been harmed at all by the defendant’s conduct,” their argument does not suggest Plaintiffs’ cannot 

meet their class certification burden as to damages. Accordingly, the Court declines to exclude the 

relevant opinions on this ground.

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C. State-of-Mind Opinions and Legal Conclusions by Dr. Pirrong

Defendants identify six statements in paragraphs 49, 57, 158, 159, 184 and 202, which they 

say exemplify improper opinions on Defendants’ state of mind or legal conclusions that should be 

excluded.7 Dr. “Pirrong, an economist, lacks an analytically sound basis for ostensibly 

psychological conclusions” about Defendants’ “knowledge or intentions.” Ploss, 637 F. Supp. 3d 

at 574 (cleaned up). Legal conclusions are inadmissible, while state-of-mind testimony is 

admissible where helpful to the jury and its probative value is not outweighed by a risk of unfair 

prejudice. Id. at 574-75. 

Defendants argue that Dr. Pirrong reaches legal conclusions in paragraphs 158 and 159 of 

his report. In paragraph 158, he states: “The December 2017 and March 2018 SRW Wheat Futures 

market was the target of Defendants’ manipulative strategy. Moreover, this is the market in which 

[TAI] chose its output of liquidations of futures contracts.” Defendants are correct that Dr. 

Pirrong’s assertion of manipulation is an improper legal conclusion and should be stricken. See In 

re Term Commodities Cotton Futures Litig., 2020 WL 5849142, at *23 (rejecting as legal 

conclusion expert testimony that Defendants “engaged in classical manipulative squeezing and 

cornering conduct” and that their “conduct was . . . manipulative”). Dr. Pirrong opines in paragraph 

159 that “[t]he Toledo, Ohio physical market for SRW wheat is a relevant market because it was 

the delivery point where [TAI] delivered wheat.” (Dkt. 185 ¶ 159.) This opinion is permissible.

See Ploss, 637 F. Supp. 3d at 577-78 (declining to reject Dr. Pirrong’s definition of market because 

“Defendants have not cited any authority requiring the exclusion of testimony where non-legal 

experts define non-legal terms in ways that differ from how those terms are defined by courts in 

other cases” and because “Defendants are free to dispute how Pirrong defines the relevant market 

7

 Defendants imply there may be other examples of opinions regarding Defendants’ state of mind or legal 

conclusions, but they do not identify them. The Court declines any invitation to search for and exclude instances of 

such opinions Defendants have not identified. 

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through cross-examination, and . . . call witnesses who present [admissible] alternative or contrary 

views . . ..”).

The admissibility of alleged state-of-mind assertions is more nuanced. Direct opinions 

regarding state of mind are improper, although an expert may testify regarding the consistency of 

a certain action with a particular state of mind. Id. at 575. Accordingly, Dr. Pirrong properly may 

testify regarding “conclusions [] drawn only in his capacity as an economist.” Id. This includes 

opining on potential economic motives of a party but not testimony of what a party knew; 

Dr. “Pirrong is ‘not more qualified than an ordinary juror’” to make the latter inferences. Id. at 

575-76 (citations omitted). Defendants are correct that Dr. Pirrong’s statements in paragraphs 49 

(that “[TAI] represented that it would sell 10 million bushels of wheat’ despite knowing that it had 

already sold sufficient physical wheat in the Toledo area to satiate the demand of major 

purchasers”), 184 (that certain “statements demonstrate . . . that Defendants were aware of these 

conditions”), and 202 (that certain “descriptions also demonstrate [Defendants’] awareness of the

market conditions that are conducive to short manipulation and the exercise of monopsony power”) 

cross the line into improper state-of-mind testimony. See id. at 576 (noting that “it is difficult to 

disaggregate the plausibly admissible component of” such statements from “clearly inadmissible 

testimony about [Defendant’s] state of mind”). That said, Dr. Pirrong’s opinion that “one in the 

position of [Defendants] could have reasonably expected and anticipated that the market would 

react as it did” (Dkt. 185 ¶ 57) falls on the admissible side of the line. See id. (noting that opinion 

that party’s actions “lacked a legitimate economic motive” was admissible); see also In re Term 

Commodities Cotton Futures Litig., 2020 WL 5849142, at *23 (permitting expert testimony 

explaining concepts or market manipulation or that particular “conduct ‘implies manipulation,’ to

the extent he is testifying about the economic realities of Defendants’ conduct rather than the 

ultimate legal conclusion that Defendants violated the law”). Accordingly, the motion is granted 

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as to the challenged statements in paragraphs 49, 158, 184, and 202 and denied as to the challenged 

statements in paragraphs 57 and 159. 

CONCLUSION

For the foregoing reasons, the Court denies Plaintiffs’ motion to exclude the testimony of 

Professor Justin McCrary [Dkt. 150], and the Court grants in part and denies in part Defendants’ 

motion to exclude the testimony of Dr. Craig Pirrong [Dkt. 143]. That motion [Dkt. 143] is granted 

only to the extent that Dr. Pirrong’s legal conclusions and opinions as to state of mind identified 

in this memorandum opinion and order will be excluded; the motion is otherwise denied. 

ENTERED: October 7, 2024 ___________________________________

Hon. Keri L. Holleb Hotaling

United States Magistrate Judge 

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