This article by AAI Advisory Board Members Eric Cramer (Berger & Montague) and Joshua Davis (University of San Francisco Law School) will appear, in edited version, in George Mason Law Review. The paper builds on a previous Rutgers Camden Law Review article.
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.