Antitrust Claims Potentially Suitable for Class Treatment

The antitrust laws cover a broad array of marketplace conduct, and,
depending on the type of conduct being challenged, the legal rules that
will govern the class actionespecially the applicability of the per se
rule of illegality or the rule of reasonwill vary. Different types of
antitrust claims require proof of different elements, which can inject
varying levels of complexity into a case, thereby making class action
adjudication more difficult. This section explores the primary types of
antitrust actions and considers whether, and under what circumstances,
an antitrust complaint can appropriately be considered on a class-wide
A. Horizontal Restraints of Trade
1. Horizontal Price Fixing
Courts have frequently held that “[a]ntitrust, price-fixing conspiracy
cases, by their nature, deal with common legal and factual questions
about the existence, scope and effect of the alleged conspiracy.”1 As a
result, motions for class certification concerning price-fixing claims are
often granted when the plaintiffs can demonstrate that the alleged
conspiracy had a uniform impact on the plaintiff class.2
Certain types of price-fixing conspiracies, however, are more
susceptible to class treatment than others. For example:
[C]ourts have refused to certify price-fixing cases [where] proof of
conspiracy as to numerous defendants cannot be accomplished on a
class-wide basis or when proof of fact of damage would be
1. In re Sugar Antitrust Litig., 73 F.R.D. 322, 335 (E.D. Pa. 1976).
2. See, e.g., In re Playmobil Antitrust Litig., 35 F. Supp. 2d 231, 240-41
(E.D.N.Y. 1998), and cases cited.
44 Class Actions Handbook
unmanageable because of the intricate nature of the market or the
number of potential plaintiffs.3
a. Conspiracies Involving Numerous Defendants
One circumstance where courts are less likely to certify antitrust
cases alleging horizontal price-fixing conspiracies are those that invol ve
a large number of defendants. Courts have indicated that unless plaintiffs
can demonstrate that the defendants acted in a consistent and predictable
way, it may be difficult to satisfy the Rule 23 requirements for class
In In re Hotel Telephone Charges Antitrust Litigation,4 for example,
the plaintiffs alleged a nationwide conspiracy against 47 hotel chains and
600 individual hotels. The court denied the plaintiffs’ motion for class
certification, finding that class treatment was not a superior method of
adjudication because the action involved hundreds of defendants, was
likely to consume decades of judicial time, the average individual
recovery in the case was estimated to be only two dollars, and the
amount of recovery would be entirely consumed by the costs of notice
b. Antitrust Impact as the Central Issue
“Individual injury (also known as antitrust impact) is an element of
the cause of action; to prevail on the merits, every class member must
prove at least some antitrust impact resulting from the alleged
3. Krehl v. Baskin-Robbins Ice Cream Co., 78 F.R.D. 108, 121 (C.D. Ca.
1978). See also Fertig v. Blue Cross of Iowa, 68 F.R.D. 53, 59 (N.D.
Iowa 1974) (certification denied where proposed class consisted of 2.5
million hospital patients); Boshes v. Gen. MotorsCorp., 59 F.R.D. 589,
599 (N.D. Ill. 1973) (denying certification of class of 30-40 million
automobile purchasers); In re Ampicillin Antitrust Lit ig., 55 F.R.D. 269,
277 (D.D.C. 1972) (certification denied for class brought on behalf of
millions of consumers); City of Philadelphia v. Am. Oil Co., 53 F.R.D.
45, 70-74 (D.N.J. 1971) (millions of gasoline purchasers); United Egg
Producers v. Bauer Int’l Corp., 312 F. Supp. 319, 321 (S.D.N.Y. 1970)
(all consumers of eggs in the United States).
4. 500 F.2d 86, 88 (9th Cir. 1974).
5. Id. at 91; see also Kline v. Coldwell Banker & Co., 508 F.2d 226, 235-36
(9th Cir. 1974) (class certification denied where plaintiffs would have
burden to prove knowledge of fee schedule by over 2,000 individual
broker defendants to establish conspiracy as to each defendant).

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