On November 10, 2021, AAI hosted its 15th annual Private Antitrust Enforcement Conference featuring experts and thought-leaders from across the antitrust community, including enforcement, advocacy, and academia. The panel “Class Certification in Antitrust Cases: All or Nearly All?” explored plaintiff and defense perspectives on legal and economic issues that arise at the class certification stage of an antitrust class action when the proposed class includes members who may not have been injured by the defendant’s conduct. The panelists discussed how the presence of potentially uninjured class members raises questions regarding the legal standards plaintiffs must meet to satisfy Rule 23, the plaintiff’s burden of proof, various procedural devices judges have been using recently, and the design and implementation of plaintiffs’ and defendants’ econometric techniques.
Among other things, the panelists considered what makes a plaintiff’s classwide econometric evidence of antitrust impact sufficiently reliable and capable of proving impact to all or virtually all class members, which has become important to satisfying the predominance requirement of Rule 23. They also discussed different plaintiff- and defense-side perspectives on how to accommodate the requirement that common issues predominate over individual issues “at trial,” and how to predict whether individualized defenses, if they exist, are likely to be litigated at trial. They also discussed variations across circuit courts, and an overall lack of clarity, on what it means for judges to conduct a “rigorous analysis” at class certification, without holding “mini-trials.” Finally, the panelists considered recent procedural innovations by courts, including the use of live expert hearings with direct and cross examination.
Highlights From the Speakers:
Joshua P. Davis, Professor and Director of the Center for Law and Ethics, University of San Francisco School of Law
“I always get troubled by use of the word ‘rigorous’ at class certification, not because I disagree with it, but because it feels like a slogan and not a standard. It’s very hard to IRAC ‘rigorous.’”
Caitlin G. Coslett, Shareholder, Berger Montague PC
“In my view the ‘rigorous analysis’ language the Third Circuit has adopted is really meant to tell district courts that you cannot throw up your hands and say I’m not going to grapple with the defense criticisms of plaintiff’s regression—you have to make an attempt to rigorously analyze them and address the defense arguments in the written opinion.”
Jennifer L. Giordano, Partner, Latham & Watkins, LLP
“Just surviving Daubert is not enough. We all know that the class certification standard is more rigorous than that. But where that line is, I think, is subject to debate.”
Jamie McClave Baldwin, President, Infotech Consulting
“It’s very important for the experts to be involved in the day-to-day details. If you’ve been involved and your hands are dirty with the data, or if you’re removed and just overseeing ‘the minions’ working on your behalf, then it will show during live testimony.”