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Striking an Efficient Balance: Making Sense of Antitrust Standing in Class Action Certification Motions

Kelly J. Bozanic


February 19, 2010

Penn State Legal Studies Research Paper No. 17-2010

Class actions are powerful litigation devices, especially in antitrust cases. Plaintiffs who otherwise would not have the economic incentive to pursue judicial redress are vested with status as equal players in the commercial marketplace. The aims of both the antitrust laws and Rule 23(b)(3) of the Federal Rules of Civil Procedure are served through class actions, yet class actions also bear the potential of negatively impacting the consuming public. This is so, because district court judges considering certification motions face seemingly contradictory standards when it comes to certifying an antitrust class. As a result, plaintiff classes are often given an unfair advantage in bargaining position through an improper grant of certification. This article clarifies the jurisprudential policies which animate Rule 23(b)(3) and § 4 of the Clayton Act for the purpose of understanding what is required of a district court judge in class action certification. This article contends that the district court judge is a fiduciary who must fairly preserve the bargaining positions of both parties. In so doing, the judge serves the greater population by ensuring the optimum level of antitrust enforcement, and thereby, the ultimate aim of the antitrust laws is upheld: protecting consumer welfare by ensuring a robustly competitive marketplace.

Number of Pages in PDF File: 37

Keywords: class action, 23(b)(3), antitrust, antitrust standing, antitrust injury, certification motion

JEL Classification: K21, K4, K41, L4

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Date posted: February 28, 2010 ; Last revised: June 22, 2010

Suggested Citation

Bozanic, Kelly J., Striking an Efficient Balance: Making Sense of Antitrust Standing in Class Action Certification Motions (February 19, 2010). Penn State Legal Studies Research Paper No. 17-2010. Available at SSRN: https://ssrn.com/abstract=1556016

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