In this issue:
Courts and authorities—both in the United States and Europe—have muddied the waters regarding various class issues. To try to clear things up a bit, we first asked two groups of authors—Donald Falk, Archis Parasharami, & Marcia Goodman and Jay Himes & William Reiss—to look at the 9th Circuit’s Dukes decision, which conflicts with several other circuit decisions. Robert O’Donoghue then examines recent developments in multi-party litigation in the United Kingdom and, finally, Aidan Synnott & Dan Crane analyze the U.S. Supreme Court’s recent Shady Grove decision. And since we’re very proud that a CPI Antitrust Chronicle article by Brian Kennelly was cited in the recent U.K. COA decision on Cooper Tire, we’ve asked Ruchit Patel to explain that case’s significance. Hope you’re all having a wonderful summer!
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Class Issues: An Update
Dukes v Wal-Mart Stores: En Banc Ninth Circuit Lowers the Bar for Class Certification and Creates Circuit Splits in Approving Largest Class Action Ever Certified
Because Dukes lowers the bar to class certification in the Ninth Circuit, businesses that may be targeted by antitrust class actions should be prepared to face more litigation there, and should be sure to preserve important issues for potential Supreme Court review. Donald M. Falk, Archis A. Parasharami, & Marcia E. Goodman, Mayer Brown
The Duchesses Come Out Swinging in Dukes: Restoring the Balance in Class Certification
Class certification proceedings were never intended to be used to decide the merits of an underlying factual dispute in the lawsuit”be it discrimination felt by class members in common, or impact from a price-fixing violation on a class of purchasers generally. Jay L. Himes & William V. Reiss, Labaton & Sucharow
Recent Developments In Antitrust Class Actions in The United Kingdom
Given the somewhat schizophrenic, and uncertain, approach of the EU authorities to private damages actions in the competition arena, it will likely, in the short- to medium-term anyway, be left to national legal systems in the EU to decide to what extent, if any, they wish to promote collective redress procedures in competition law cases. Robert O’Donoghue, Brick Court Chambers
The Supreme Court Invalidates State Restriction on Federal Class Actions in Shady Grove v. Allstate
This is the story, in Justice Ginsburg’s words, of an attempt to transform a $500 case into a $5,000,000 award.” Aidan Synnott, Paul, Weiss & Daniel Crane, Univ. of Michigan
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Of Special Interest: The Cooper Tire Decision
English Court of Appeal’s Judgment in Cooper Tire and Ors v. Dow Deutschland and Ors
This judgment seems likely to encourage claimants for whom the English High Court is fast becoming the forum of choice for follow-on damages actions in antitrust cases. Ruchit Patel, Cleary Gottlieb
