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

• Author: Chris S. Coutroulis,D. Matthew Allen
• Published date: 01 March 2003
• Date: 01 March 2003
• DOI: http://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).