26 Antitrust 31 (2011-2012)
A Questionable New Standard for Class Certification in Antitrust Cases

handle is hein.journals/antitruma26 and id is 33 raw text is: A Questionable New Standard for
Class Certification in Antitrust Cases
BY JOSHUA P. DAVIS AND ERIC L. CRAMER

N RECENT YEARS, A NEW STANDARD
appears to have emerged regarding class certification.
Courts have largely dismissed the notion-originally
derived from Eisen v. Carlisle & Jacquelin'-that they
cannot resolve issues relevant to the merits in deciding
vhether to certify a class. How far they may delve into the
nerits, however, has remained somewhat of a mystery.
From this perspective, the Supreme Court's recent decision
n Wal-Mart v. Dukes was anticlimactic.2 It did little to assist
ower courts and parties as they try to sort out the new rules
hat appear to be emerging for class certification. This void
s particularly apparent in antitrust cases. Indeed, in Behrend
. Comcast Corp., an antitrust case decided right after Dukes,
he Third Circuit concluded that because of the different
factual and legal underpinnings, Dukes neither guide[d]
lor govern[ed] the decision whether to certify a class in
hat case.'
At the same time, Comcast expressed grave doubts about
he consequences of a heightened merits-based inquiry at
*ass certification.' This concern is understandable in our
iew. Various problems beset this emerging approach, at least
.s applied in antitrust cases. First, it is vague. Courts have not
Iarified such fundamental issues as the showing plaintiffs
nust make for a court to certify a class, the degree to which
court may delve into the merits at class certification, and the
ercentage of a class that plaintiffs must be able to show suf-
ered injury for a court to certify a class. Moreover, to the
xtent courts have addressed these issues, they have failed to
xplain how the requirements they have imposed serve the
Principal purpose of the predominance requirement: to
nsure that individual issues will not overwhelm common
nes at trial.5
The second problem is that the new standard meshes
oorly with the existing litigation process. Courts now appear
o require a more searching inquiry into the merits than is

sensible based on the relatively early stage at which the cer-
tification decision is supposed to take place. As a result, it may
make sense to delay the class certification decision until sum-
mary judgment or even until after trial. Indeed, if merits
issues are to be addressed, the Seventh Amendment may
require courts to await a jury's findings on the merits before
deciding class certification.
Third, any change in the certification standard may well
be unnecessary. A key motivating factor behind the new
approach appears to be the belief that granting class certifi-
cation puts undue pressure on defendants to settle meritless
cases.' That this problem occurs with any frequency is unsub-
stantiated as a matter of fact and implausible as a matter of
theory. Given the weaknesses of this justification for chang-
ing class action standards, there is a real risk that the catalyst
for recent legal developments in this area is ideology rather
than evidence, sound policy concerns, or doctrinal require-
ments.
Whatever the merits of the potential new class certification
standard, the practical problems it creates are numerous. But
some solutions, however imperfect, are possible. These range
from ending the past practice in some courts of bifurcating
discovery on class certification and the merits, to combining
the adjudication of class certification and summary judg-
ment, to delaying the certification decision until plaintiffs
have had adequate discovery. If the burden on plaintiffs at the
class certification stage has increased, as has the cost to every-
one of adjudicating certification, measures should be taken to
ensure that plaintiffs have a sufficient opportunity to devel-
op their case while, at the same time, streamlining litigation
for the parties and the courts to the extent possible given the
new requirements.
Vague Standard
Obscurity Regarding the Merits. At first blush, the recent
trend in class certification decisions appears clear. Courts
have said that plaintiffs must show that they can satisfy the
elements of Federal Rule of Civil Procedure 23. The pre-
ponderance of evidence standard provides the ordinary bur-
den of persuasion. It is unsurprising, then, that courts have
applied that standard to class certification. They have held
that plaintiffs must show by a preponderance of evidence that
they satisfy the relevant requirements of Rule 23.7 This sim-

FALL  2011  -  31

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