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

AuthorChris S. Coutroulis,D. Matthew Allen
Published date01 March 2003
Date01 March 2003
DOIhttp://doi.org/10.1177/0003603X0304800210
The Antitrust Bulletin/Summer 2003
Back
to the future: toward amore
rigorous analysis
of
antitrust
class actions
BY D. MATTHEWALLEN* and CHRIS S. COUTROULIS**
If
class suits are to bejustified substantively
a class action rule cannotbe applied mechanistically.I
I.
Introduction
463
Withinthelast10 years,therehas beena noticeable shift in attitudes
of the federalcourts towardclass actions. Inthe late 1980s, judges
were increasingly optimistic that the class actiondevice couldbe used
even
in
personal
injury mass tort cases to deal with alitigation
explosion.> Since that time and perhaps asa result
of
the courts'
collective experience attempting to
try
monster class cases,therehas
been a retrenchment in the judicial perspectivetoward class actions.
Gone are the dayswhencourts viewed the device as an integral and
*Shareholder in the Tampa, Floridaoffice 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); Jenkinsv. 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 thosecases will never
try
but will inevitably settle, sooner
rather than later. Today, in most substantive fields, it is much more
difficult for plaintiffs andtheir counsel to getclassescertifiedthan in
years past. Thisdifficulty is most perceptible withrespectto 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 writsof mandamusto 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 federalcourts in
mass tort cases.'
The recent judicial reluctance tocertify classactionshas not been
limited to mass tort cases (though that surely is the moststriking
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."6Certificationof property damage
products liability cases basedonmultiple operativeevents is likewise
becoming rare. So is certification of classes alleging the commission
of economic torts.' Federal securities classactions aswell are less
likely than before to survive thecertification process."
Antitrust cases, however,havein substantial measure managed
to buck this general trend. In fact, they appear to havetrended
conversely to the
general
population
of
class actions. In 1997
Stephen Calkins reviewed advance sheetreportsof 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 the1990s.9In1994 and1995 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 (11thCir.
2(00)
(reversing
certification on ground that
named
plaintiff lacked standing to represent the
class); Allisonv. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998).
7See, e.g., Broussard v. Meineke Discount Muffler Shops, 155 F.3d
331 (4thCir.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);Inre 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).

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