Class Certification Procedure

For many antitrust class actions, the courts decision whether to
certify a class represents the most important decision in the litigation. If a
class is certified, the defendant has a strong incentive to settle, avoiding
the risk of a treble damage judgment to an entire class and saving
significant litigation expense. If certification is denied, class counsel
must evaluate whether the value of the class representativesand any
additional plaintiffs claims are enough to warrant continuing in
expensive antitrust litigation. Often, the denial of class certification
marks the effective end of the case.1 Given the stakes, the class
certification process deserves significant attention from both plaintiffs
and defendants. This chapter addresses the substantive legal standards for
class certification as well as the procedural mechanisms for navigating
the class certification process, with a focus on how that process has
operated in previous antitrust cases.
A. Class Certification Motion Requirements
In antitrust class actions, just as in all class actions, plaintiffs must
meet the requirements of Rule 23 to obtain class certification. The
following chapter (Chapter VI) will analyze these requirements, which
include numerosity, commonality, typicality, and adequacy of
representation under Rule 23(a) and typically either the defendant acting
on grounds generally applicable to the class (for injunctive relief), or
predominance and superiority (for damages) under Rule 23(b).2 This
1. Newton v. Merrill Lync h, Pierce, Fenner & S mith, 259 F.3d 154, 162 (3d
Cir. 2001) (“denying or granting cla ss certification is o ften the defining
moment in class action s (for it may sound the ‘deat h knell’ of the
litigation on the part of plaintiffs, or create unwanted pressure to settle
unmeritorious claims on the part of the defendants)”).
2. As of this writing, the Rule 23 Subcommittee of the Civil Rules Advisory
Committee is contemplating certain amendments to Rule 23. The
Subcommittee has identified the following six “front burner” topics on
which it intends to focus: (1) frontloading; (2) excluding from immediate
appeal under Rule 23(f) preliminary approvals of class certification and
92 Class Actions Handbook
chapterand specifically this sectionwill take a more holistic
approach to the class certification requirements and focus on the level of
scrutiny and analysis required by the court at the class certification stage.
1. Historical Standards
Historically, courts deciding the class certification question refrained
from making any inquiry into the merits of the plaintiff’s claims. This
notion that certification analysis and merits analysis were to be treated
separately was articulated by the Supreme Court in 1974 in Eisen v.
Carlisle & Jacquelin: We find nothing in either the language or history
of Rule 23 that gives a court any authority to conduct a preliminary
inquiry into the merits of a suit in order to determine whether it may be
maintained as a class action.3In determining the propriety of a class
action, the question is not whether the plaintiff or plaintiffs have stated a
cause of action or will prevail on the merits, but rather whether the
requirements of Rule 23 are met.4
The Court departed somewhat from the language in Eisen in 1982,
when it explained in General Telephone Co. of the Southwest v. Falcon
that a class action may only be certified if the trial court is satisfied,
after a rigorous analysis, that the prerequisites of Rule 23(a) have been
satisfied.5 The Court seemed to take an ambivalent stance on what that
rigorous analysis entailed, recognizing that “[s]ometimes the issues are
plain enough from the pleadings to determine whether the interests of the
absent parties are fairly encompassed within the named plaintiffs claim,
and sometimes it may be necessary for the court to probe behind the
pleadings before coming to rest on the certification question.”6
Following the Court’s decision in Falcon, various circuit courts
seized on this language and emphasized opposing sides of the Courts
statement. For example, the Ninth Circuit in Chamberlan v. Ford Motor
Co. rejected interlocutory review of a district courts grant of class
orders regarding notice to the class about possible settlements;
(3) clarifying Rule 23(c)(2)(B) to state that Rule 23(e)(1) notice triggers
the opt-out period; (4) notice to unnamed class members; (5) handling
objections by class members to proposed settlements; and (6) criteria for
judicial approval of class-action settlements. See Rule 23 Subco mmittee
Report, at 88 (Nov. 5-6, 2015).
3. 417 U.S. 156, 177 (1974).
4. Id. at 178 (internal quotations and citation omitted).
5. 457 U.S. 147, 161 (1982).
6. Id. at 160.
Class Certification Proce dure
certification and cited Falcon for the prop osition that [t]he Supreme
Court [ ] recognized over twenty years ago that a rigorous analysis does
not always res ult in a lengthy explanation or in-depth review of the
record.7 Conversely, the Seventh Circuit in a case called Szabo v.
Bridgeport Machines, Inc. granted interlocutory review and vacated a
district courts order certifying a class, stating that a judge should make
whatever factual and legal inquiries are necessary under Rule 23even if
the judge must make a preliminary inquiry into the merits.”8 Most
circuit courts followed Szabo and emphasized the need for a rigorous
analysis to probe behind the pleadings and resolve merits issues relevant
to class certification.9
Prior to the Supreme Court’s more recent iterations of what the
rigorous analysis at class certification entails (discussed below), the most
prominent antitrust decision dealing with the issue was In re Hydrogen
Peroxide Antitrust Litigation.10 There, the Third Circuit stated:
The following principles guide a district courts class certification
analysis. First, the requirements set out in Rule 23 are not mere
pleading rules. . . . The court may delve beyond the pleadings to
determine whether the requirements for class certification are satisfied.
An overlap between a class certification requirement and the merits of a
claim is no reason to decline to resolve relevant disputes when
necessary to determine whether a class certification requirement is
met. . . . Because the decision whether to certify a class requires a
thorough examinatio n of the factual and lega l allegations, . . . the
courts rigorous ana lysis may include a p reliminary inquir y into the
merits, . . . and t he court may consider the substantive ele ments of the
plaintiffscase in order to envision the form that a trial on those issues
would take . . . .11
The Third Circuit applied these principles in vacating a district courts
order granting class certification. It made three critical findings with
respect to class certification requirements:
7. 402 F.3d 952, 961.
8. 249 F.3d 672, 676.
9. See, e.g., In re Initial Pub. Offerings Secs. Litig., 471 F.3d 24, 38-42 (2d
Cir. 2006); Newton v. Merrill Lync h, Pierce, Fenner & S mith, 259 F.3d
154, 166-67 (3d Cir. 2001); Gariety v. Grant Thornton, L LP, 368 F.3d
356, 366 (4th Cir. 2004); Blades v. Monsanto Co., 400 F.3d 562, 566-67
(8th Cir. 2005).
10. 552 F.3d 305 (3d Cir. 2008).
11. Id. at 316-18 (internal quotations and citations omitted).

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