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John Majoras, Jun 25, 2008
The evolving standard for assessing class certification should have particular import on antitrust cases, which have long looked to expert analysis to frame the arguments for and against certification. For the most part, plaintiffs have had considerable advantages in seeking certification. First, they have been able to cite a litany of cases that essentially conclude that antitrust cases are ideally suited for class actions. Second, the courts have taken a number of shortcuts, not the least of which is the Bogosian presumption, which the courts have used to assume antitrust impact. Third, courts have often punted altogether on the economic issues, using a variety of conveniences, including the avoidance of a battle of the experts or at least an avoidance of deciding merits issues that are often the foundation of expert opinions. Finally, the boilerplate language of antitrust violations that plaintiffs have been allowed to assert in their complaints, without additional factual detail, has failed to provide the necessary analytical framework to determine whether common issues predominate over individual ones. The last three of these factors have undergone profound changes that may ultimately shift the balance from those cases that assert that antitrust actions are prone to certification.
