Back to the Future: Toward a More Rigorous Analysis of Antitrust Class Actions

• DOI: 10.1177/0003603X0304800210
• Published date: 01 March 2003
• Date: 01 March 2003
• Subject Matter: Symposium: Antitrust Class Action—Problems and Prospects

The Antitrust Bulletin/Summer 2003

Back

to the future: toward amore

rigorous analysis

of

antitrust

class actions

BY D. MATTHEW ALLEN* and CHRIS S. COUTROULIS**

If

class suits are to bejustified substantively

a class action rule cannot be applied mechanistically.I

I.

Introduction

463

Within the last 10 years, there has been a noticeable shift in attitudes

of the federal courts toward class actions. In the late 1980s, judges

were increasingly optimistic that the class action device could be used

even

in

personal

injury mass tort cases to deal with alitigation

explosion.> Since that time and perhaps as a result

of

the courts'

collective experience attempting to

try

monster class cases, there has

been a retrenchment in the judicial perspective toward class actions.

Gone are the days when courts viewed the device as an integral and

*Shareholder in the Tampa, Florida office of Carlton Fields.

** Chair of the antitrust practice group in the Tampa, Florida office

of Carlton Fields.

Note, Three Theories

of

the Class Action, 89

HARv.

L.

REV.

1329,

1366 (May 1976).

See In re A.H. Robbins Co., 880 F.2d 709 (4th Cir.) (noting a

trend

toward

aliberal approach in

certifying

mass

tort

cases),

cert.

denied, 493 U.S. 959 (1989); In re School Asbestos Litig., 789 F.2d 996

(3d Cir. 1986) (same); Jenkins v. Raymark Indus., Inc., 782 F.2d 468 (5th

Cir. 1986).

©2003 by Federal Legal Publications, Inc.

464

The antitrust bulletin

positive solution to a burgeoning judicial crisis. Appellate courts in

recent years have become highly critical

of

the deferential analysis

used by some district courts to certify class

actions-knowing

that the

vast bulk of those cases will never

try

but will inevitably settle, sooner

rather than later. Today, in most substantive fields, it is much more

difficult for plaintiffs and their counsel to get classes certified than in

years past. This difficulty is most perceptible with respect to personal

injury tort claims. In the years since 1990, the Supreme Court has

issued

two

landmark

decisions ordering industry-wide mass tort

classes

decertified,

and

the

Fifth,

Sixth, Seventh,

and

Eleventh

Circuits have issued writs of mandamus to order ambitious litigation

classes decertified.' Indeed, the change in perspective is such that

some

commentators

have

described

what they consider to be an

"overall hostility to the class action mechanism" by federal courts in

mass tort cases.'

The recent judicial reluctance to certify class actions has not been

limited to mass tort cases (though that surely is the most striking

example). For example, national class actions

based

on multiple

states' tort laws have become extremely difficult to

certify-and

indeed, a"strong presumption" against their certification has taken

hold in the case law." Title VII employment discrimination class

See Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997); Ortiz

v. Fibreboard Corp., 527 U.S. 815 (1999), Castano v. American Tobacco

Co., 84 F.3d 734 (5th Cir. 1996) (reversing aclass of cigarette smokers);

In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995) (granting

mandamus to

order

class

of

persons with hemophilia decertified); In re

American Medical Systems, Inc., 75 F.3d 1069 (6th Cir. 1996) (granting

mandamus to order class

of

penile implant patients decertified); Jackson

v. Motel 6Multipurpose, Inc., 130

F.3d

999 (11th Cir. 1997) (granting

mandamus to order race discrimination class decertified).

4Donald C. Massey, Louis C. LaCour, Jr. & Valerie M. Sercovich,

Curtailing the Tidal Surge: Current Reforms in Louisiana Class Action

Law, 44 Loy. L.

REV.

7, 18 (Spring 1998).

Ryan Patrick Phair, Resolving the "Choice-of-Law Problem" in

Rule 23(b)(3) Nationwide Class Actions, 67 U.

CHI.

L.

REV.

835, 842

(Summer 2000).

For

examples, see, e.g., Castano, 84 F.3d at 737; In re

Bridgestone/Firestone, Inc., 288

F.3d

1012 (7th Cir. 2002); In re Ford

Motor

Co.

Ignition

Switch

Products

Liability

Litig.,

174 F.R.D.

332

(D.N.J. 1997); In re

General

Motors

Corp.

Anti-Lock

Brake Products

Back

to the future

465

actions have an "uncertain future."6 Certification of property damage

products liability cases based on multiple operative events is likewise

becoming rare. So is certification of classes alleging the commission

of economic torts.' Federal securities class actions as well are less

likely than before to survive the certification process."

Antitrust cases, however, have in substantial measure managed

to buck this general trend. In fact, they appear to have trended

conversely to the

general

population

of

class actions. In 1997

Stephen Calkins reviewed advance sheet reports of every reported

antitrust class action and observed adecline in the use

of

class

actions

in

antitrust

cases

in

the

1980s

followed

by a

recent

resurgence in their use in the 1990s.9In 1994 and 1995 antitrust

Liability Litig.,

966

F. Supp. 1525 (E.D. Mo. 1997);

Montgomery

v.

The

New

Piper

Aircraft, Inc.,

209

F.R.D.

221 (S.D. Fla. 2001).

6Daniel F. Pian, The Uncertain Future

of

Title VII Class Actions After

the Civil Rights

Act

of

1991, 2001 B.Y.U. L. REv. 305.

For

examples, see,

e.g., Carter v. West Publishing Co., 225 F.3d 1258 (11th Cir.

2(00)

(reversing

certification on ground that

named

plaintiff lacked standing to represent the

class); Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998).

7See, e.g., Broussard v. Meineke Discount Muffler Shops, 155 F.3d

331 (4th Cir. 1998); Lyon v. Caterpillar, Inc., 194

FRO.

206 (E.D. Pa. 2(00);

Jackson

Nat'l

Life Ins. Co.

Premium

Litig., 183 F.R.D. 217 (W.O. Mich.

1998); In re Ford Motor Co. Ignition Switch Products Liability Litig., 174

F.R.D. 332 (D.N.J. 1997); In re

General

Motors Corp. Anti-Lock Brake

Products Liability Litig., 966 F. Supp. 1525 (E.D. Mo. 1997); In re Masonite

Corp. Hardboard Siding Products Liability Litig., 170

FRO.

417 (E.D. La.

1997). A plaintiff's attorney has noted what he called "federal court hostility"

to certification

of

consumer fraud class actions, see Richard T. Phillips, Class

Actions &Joinder in Mississippi, 71

MISS.

L. J. 447,

453

(Winter 2001),

while adefense attorney observed an "almost universal reluctance to certify"

consumer fraud class actions arising from the "exponential multiplication

of

individual issues." John S. Kiernan, Developments in Consumer Fraud Class

Action Law, 537 PLIIPat

237,277.

8At least in the securities fraud context, this is partly the result

of

statute.

In

1995,

Congress

passed

the

Private

Securities

Litigation

Reform

Act

which

provides

heightened

requirements

for

certification

of

securities fraud

class

actions. See 15

U.S.c.

§

78u-4(b)(l)

(Supp. I1995).

9

Stephen

Calkins,

An

Enforcement

Official's

Reflections

on

Antitrust

Class Actions, 39

ARIZ.

L. REv.

413

(Summer

1997).