This Article develops two arguments against a possible
trend in federal appellate courts toward imposing a new, heightened
standard for class certification in antitrust cases. Recent case
law can be read to imply that trial judges may make findings of
fact on the merits in deciding class certification, including about
whether plaintiffs will be able to show with class-wide evidence
that every class member was harmed by allegedly anticompetitive
conduct. The first argument is that the potential new standard
would require a showing at class certification on an issue -
whether all class members were injured - that plaintiffs need not,
and typically do not, address at trial. Under the traditional
understanding of Rule 23, and specifically the predominance prong
of Rule 23(b)(3), requiring plaintiffs to show they can prove
something with class-wide evidence that they need not prove on the
merits is artificial and conflicts with the logic of class
certification. The second argument is that courts applying the
potential new standard may find facts in a way that violates the
Seventh Amendment. The avowed policy rationale behind this possible
legal innovation is a concern that class certification coerces
large corporate defendants into settling meritless cases, a concern
that finds an insufficient basis in theory or empirical evidence.
Without that basis, courts risk distorting class certification law
and Seventh Amendment doctrine in a way that is political in the
pejorative sense.
Full article is also available at http://ssrn.com/abstract=1578459