Antitrust Class Certification Standards

Federal Rule of Civil Procedure 23 embeds most, but not all, of the
standards for class certification of an antitrust claim. Rule 23 antitrust
practice has evolved in recent years into one that demands as much of the
resources—in terms of time, effort and expense—as perhaps the case as a
whole, more than pure “meritsdiscovery, trial, or an appeal of a
judgment. As made clear by the Supreme Court:
Rule 23 does not set forth a mere pleading standard. A party seeking
class certification must affirmatively demonstrate his complia nce with
the Rulethat is, he must be prepared to prove that there are in fact
sufficiently numerous parties, common questions of law or fact, etc.1
More recently, the Supreme Court has elaborated, in an antitrust
Repeatedly, we have emphasized that it “‘may be necessary for the
court to probe behind the pleadings before coming to rest on the
certification question,and that certification is proper only if the trial
court is satisfied, after a rigorous analysis, that the prerequisites of Rule
23(a) have been satisfied.’”2
Thus the savvy practitioner must focus substantial resources to the
discovery, experts, evidentiary record, hearing, and possible
interlocutory appeal that class certification demands.
Plaintiffs in any class action must have standing and otherwise meet
the requirements of Rule 23 of the Federal Rules of Civil Procedure in
order to maintain a class action. Under Rule 23(a), a class plaintiff must
demonstrate numerosity, commonality, typicality, and adequacy of
representation. In addition, class plaintiffs must satisfy at least one of the
requirements of Rule 23(b) by demonstrating that: (1) the prosecution of
1. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
2. Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (quoting both
Dukes and General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160-161
130 Class Actions Handbook
separate actions could potentially establish inconsistent standards of
conduct or substantially impair other class members ability to protect
their interests; (2) final injunctive or declaratory relief is appropriate
because the party opposing the class acted on grounds generally
applicable to the class; or (3) common issues predominate over
individual issues and a class action is a superior mechanism for resolving
the claims. Although none of these requirements is unique to antitrust, in
recent years there has been a trend in antitrust class actions toward
greater scrutiny of class certification motions. Some courts of appeals
appear to have raised the bar for certification of antitrust class actions,
but there are countercurrents as well.
A. Class Plaintiffs Must Possess Article III Standing
As a threshold matter, class action plaintiffs must satisfy the standing
requirements of Article III of the United States Constitution.3
Specifically, plaintiffs must show that: (1) they suffered an actual or
imminent injury-in-fact; (2) the injury must be fairly traceable to the
alleged conduct of the defendant; and (3) injury will likely be redressed
by a favorable decision in the litigation.4
In a pure antitrust case the injury must constitute antitrust injur y,
the type of injury that the antitrust laws were designed to address.5 The
fact that the plaintiffs seek to certify a class does not alter the standing
requirement. A named plaintiff cannot use the class action mechanism to
create standing that is otherwise lacking.6 As the Supreme Court
3. Although Article III requirements must be satisfied in every case, courts
sometimes will address the procedural requirements of Rule 23 before
deciding the issue of standing. See Amchem Prods. v. Windsor, 521 U.S.
591, 612-13 (1997) (resolution of class certification “is logically
antecedent to the existence of any Article III issues); see also In re
Chocolate Confectionary Antitrust Litig., 602 F. Supp. 2d 538, 579-80
(M.D. Pa. 2009) (same).
4. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992);
Wheeler v. Pilgrim’ s Pride Corp., 246 F.R.D. 532, 536 (E.D. Tex. 2007).
5. “Plaintiffs must prove antitrust injury, which is to sa y injury of the type
the antitrust laws were intended to prevent and that flows from that which
makes defendants’ a cts unlawful.” Brun swick Corp. v. Pueblo Bowl-O-
Mat, Inc, 429 U.S. 477, 489 (1977).
6. See Lewis v. Casey, 518 U.S. 343, 357 (1996) (prisoner rights injunctive
relief class); Wheeler, 246 F.R.D. at 537 (noting that “[i]nclusion of class
action allegations in a complaint does not relieve a plaintiff of hi mself
meeting the require ments for constitutio nal standing, even if the persons
Antitrust Class Certification Standards
explained, a class action “adds nothing to the question of standing, for
even named plaintiffs who represent a class must allege and show
that they personally have bee n injured, not that injury has been suffered
by other, unidentified, members of the class to which they belong and
which they purport to represent.7 In antitrust litigation, the standing
requirement is applied to reflect the fact that antitrust liability is joint and
several. Typically, to satisfy standing, every plaintiff must have been
injured by every defendant. However, due to joint and several liability, a
plaintiff injured by one defendant as a result of a conspiracy has
standing to represent a class of individuals injured by any of the
defendant’s co-conspirators.8
Another implicit requirement for proceeding as a class action is that
the proposed class must be precisely defined.9 A careful class definition
described in the class definition would have standin g themselves to
sue.”); In re Milk Prods. Antitrust Litig., 195 F.3d 430, 436 (8th Cir.
1999) (holding that class cannot be certified if named plaintiff does not
have standing); In re Flonase Antitrust Litig., 610 F. Supp. 2d 409, 413
(E.D. Pa. 2009); In re NASDAQ Market-Makers Antitrust Litig., 169
F.R.D. 493, 504-05 (S.D.N.Y. 1996).
7. Lewis, 518 U.S. at 357 (quoting Simon v. E. Ky. We lfare Rts. Org., 426
U.S. 26, 40 n.20 (1976)). A named plaintiff who lacks standing cannot
represent a class. See Harris v. McRae, 448 U.S. 297, 320 n.23 (1980); In
re Milk Prods., 195 F.3d at 436 (holding that puta tive class could no t
have been properly certified, where only remaining named plaintiff
lacked standing.).
8. See, e.g., In re NASDAQ Mark et-Makers, 169 F.R.D. at 504-05; see also
In re OSB Antitrust Litig., 2007 WL 2253418, at *10 (E.D. Pa. 2007)
(holding that an antitrust plaintiff need not claim damages from every
defendant to satisfy Rule 23).
9. In re Tableware Antitrust Litig., 241 F.R.D. 644, 650 (N.D. Cal. 2007)
(“Courts have also read an additional threshold requirement into FRCP
23(a) that does not neatly fall under any of the four listed prerequisites: to
certify a class. there must be some evidence that a class exists and that it
may be defined with reasonable specificity.”); In re Foundry Resins
Antitrust Litig., 242 F. Supp. 2d 393, 402 (S.D. Ohio 2007) (“A threshold
issue that is implicit in a Rule 23 inquir y is that a court conclude that the
named plaintiffs seeking certification propose an identifiable,
unambiguous class i n which they are members.”); In re Copp er Antitrust
Litig., 196 F.R.D. 348, 359 (W.D. Wis. 2000), aff’d. on other grounds,
306 F.3d 496 (7th Circ. 2002); White v. NFL, 822 F. Supp. 1389, 1402
(D. Minn. 1993).

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