Antitrust, Class Certification, and the Politics of Procedure

66 Pages Posted: 29 Mar 2010 Last revised: 1 Oct 2010

See all articles by Joshua P. Davis

Joshua P. Davis

University of San Francisco - School of Law

Eric L. Cramer

Berger Montague PC

Date Written: 2010


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.

Keywords: antitrust, class certification, Seventh Amendment, Federal Rule of Civil Procedure 23

Suggested Citation

Davis, Josh Paul and Cramer, Eric L., Antitrust, Class Certification, and the Politics of Procedure (2010). George Mason Law Review, Vol. 17, No. 4, p. 968, 2010, Univ. of San Francisco Law Research Paper No. 2010-06, Available at SSRN:

Josh Paul Davis (Contact Author)

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

Eric L. Cramer

Berger Montague PC ( email )

1818 Market Street
Suite 3600
Philadelphia, PA 19103
United States
215.875.3009 (Phone)

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