Filing a Class Action

The filing of the complaint in an antitrust class action requires a
significant amount of pre-complaint researchboth factual and legal—
as well as numerous strategic decisions that will have far-reaching effects
as the case progresses. This chapter explores many of the issues that
counsel face in considering and crafting an antitrust class action
complaint. These include deciding whether to file a class action,
selecting an advantageous venue, determining the representative parties
consistent with Rule 23, identifying the defendants to sue, and defining
the class. This chapter also addresses a host of related strategic decisions
for counsel, such managing the impact of the Class Action Fairness Act
of 2005 (CAFA) and the Judicial Panel on Multidistrict Litigation
(JPML) on antitrust class actions and considerations for handling class
actions after filing the complaint.
A. Whether and Where to File a Class Action
Deciding whether to file a class action, rather than an individual one,
and where to bring the case, are two of the most important threshold
issues in any case. This section addresses considerations bearing on
whether a case should be filed individually or as a class action, whether
to file in federal or state court, and which venue is appropriate.
1. Whether to File a Class Action
One preliminary strategic decision is whether to file a contemplated
case as an individual claim or as a putative class action. This is often a
complex decision for clients and counsel, and one often driven by the
realities of litigation costs, potential case recoveries, and willingness to
commit to pursuing class claims.
One consideration is whether the litigation is feasible from an
economic standpoint on a basis other than as a class action. A consumer
allegedly injured by an antitrust conspiracy, for example, often does not
have sufficient damages to justify the costs of prosecution of an antitrust
case on an individual basis.
10 Class Actions Handbook
Even relatively straightforward antitrust theories customarily cost
millions of dollars to prosecute due in large part to the necessity of
discovery and expert analysis. As a result, unless the likely recovery
would exceed costs of this magnitude, it often would be impractical to
prosecute antitrust cases on an individual basis.1
A similar consideration is whether a contemplated case would be
feasible even as a class action. Modern class certification proceedings
routinely involve long evidentiary proceedings preceded by massive
discovery efforts, expert economists, and Daubert2 motion practice.
Filing an antitrust case as a class action and properly following through
with a motion to certify with any reasonable chance of success is a
multiyear, multimillion dollar proposition. Some cases, even if they are
susceptible to proceeding as a class, simply may not present the damages
necessary to cover the investment of cost and time. Counsel proceeding
on a contingency case should be particularly mindful of the investments
and potential recovery for contemplated class cases.
Some cases with modest potential recoveries might be feasible to
prosecute as class actions, however, given the prospect of statutory fee
awards. These circumstances arise where there is clear liability and a fee
shifting statute for a prevailing party.3 Even under these circumstances,
prosecuting an antitrust class action with modest recovery potential is
risky for both counsel and the client. The Supreme Court continues to
raise the bar in other contexts on what qualifies as a “prevailing party” to
be eligible for an award of attorneys’ fees, which may leave counsel and
client responsible for substantial expenses and fees.4
Another threshold consideration is whether there are legal
impediments to pursuing an antitrust case as a class action. In recent
years, contractual provisions that require claims to be arbitrated and
1. As Judge Posner stated, “[t]he realistic alter native to a class action is not
17 million individual suits, but zero individual suits, a s only a lunatic or a
fanatic sues for $30.” Carnegie v. Household Int’l, 376 F.3d 656, 661 (7th
Cir. 2004).
2. Daubert v. Merrill Dow Pharm., 509 U.S. 579 (1993).
3. See, e.g., D.C. CODE § 28-4508(a)(2).
4. Buchannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health and Human
Res., 532 U.S. 598, 600 (2001) (prevailing party for purposes of fee
shifting statute doe s not “includ[e] a party that has failed to secure a
judgment on the merits o r a court-ordered consent decree,” even though
“the lawsuit brought a bout a voluntary cha nge in the defendant’s
conduct”); Sole v. Wyler, 551 U.S. 74, 83 (2007) (party who prevails in
securing a preliminar y injunction is not a “prevailing part y”).
Filing a Class Action
preclude class action claims have become common. Likewise, state laws
may preclude pursuing claims as class actions. One example is New
York’s Donnelly Act.5 The New York Court of Appeals has limited the
private enforcement mechanism of this statute by holding that the state
courts cannot certify a class of injured consumers under the New York
class action rule.6 In deciding whether to file a class action, careful
counsel should confirm the contemplated case is not prohibited by
contract or positive law from proceeding on a class basis.
There used to be significant pre-filing considerations prior to 2003
when settlement was reached before a case was filed or certified as a
class. Once a party filed a case as a class action, the counsel and class
representative were obligated to disclose the terms of settlements to the
presiding court and seek its approval. This requirement evaporated with
the 2003 amendment to Rule 23(e) that now only requires judicial
scrutiny of the settlement of claims of a “certified class.” While this
arguably gives named plaintiffs more flexibility in dismissing or settling
their own claims upon filing and before classes are certified,7 careful
consideration should be given to whether such dismissals or settlements
may moot the actions for the putative class members.8
Of course, counsel must consider above all else the willingness and
appropriateness of clients to sue in a representative capacity. If, after an
explanation of the commitments and burdens of pursuing representative
claims, clients do not have the stomach to represent a class, that should
end the inquiry. Even if a client is enthusiastic, the careful lawyer should
screen for potential adequacy problems as discussed below.
This non-exhaustive list is intended to give the practitioner threshold
issues to consider when contemplating whether to file an antitrust case as
an individual or class claim. These are general thoughtsevery case is
different and likely will raise variants of these issues.
5. N.Y. G.B.L. § 340, et seq.
6. Sperry v. Crompton Corp., 8 N.Y.3d 204, 211 (2007).
7. Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1244
(10th Cir. 2011) (“[I]t is now clear that the procedural requirements
established by FED. R. CIV. P. 23 attach only after a class has been
8. As the Supreme Court no ted in Genesis Healthc are Corp. v. Symczyk,
133 S. Ct. 1523, 1529, n.4 (2013), the circuits are split, for example, on
whether an unaccepted Rule 68 offer of judgment that fully satisfies a
plaintiff’s claims will render the class claim moot.

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