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The Fall and Rise of the Antitrust Class Action

34 Pages Posted: 10 Aug 2015 Last revised: 10 Dec 2015

Spencer Weber Waller

Loyola University of Chicago, School of Law - Institute for Consumer Antitrust Studies

Olivia Popal

Loyola University Chicago, School of Law, Students

Date Written: August 10, 2015

Abstract

Antitrust class actions have narrowed significantly in the United States in recent years but still remain robust compared to aggregate litigation in the rest of the world. While the Supreme Court continues to narrow the doorway to class actions, the rest of the world is increasingly interested in creating new mechanisms for aggregate litigation to better support effective private damage litigation in competition cases, and in particular the large number of small claims cases that led to the class action boom in the United States in the first place. The challenge for the rest of the world will be to fashion new remedies consistent with the history, culture, substantive law, and procedural rules of their legal traditions rather than either adopt or reject the system that has evolved in the United States.

This article provides an overview of the increasingly stringent requirements for antitrust class actions in the United States and provides a representative survey of the nascent movement toward collective actions abroad where competition cases have been at the forefront of the debate. Part I discusses the standards for class certification under Rule 23 and recent Supreme Court cases tightening those standards. Part II analyzes a separate line of Supreme Court cases which effectively eliminates class actions altogether when parties have entered into a contract requiring arbitration rather than litigation and further requires individual rather than collective arbitration proceedings.

Part III continues with a survey of recent developments in the opposite direction outside the United States. This section examines ongoing changes in the EU, UK, other EU Member States, Mexico, and Canada to empower consumers and business with small claims in competition cases by creating collection action mechanisms of different types. This section also briefly discusses the decision of the EU to simply prohibit the type of forced arbitration clauses that the U.S. Supreme actively encourages. Part IV analyzes the critical aspect of whether foreign class actions will thrive or whither on the vine – the need for an opt-out mechanism rather than the opt-in mechanism favored in most jurisdictions outside the U.S. Finally, I conclude by pointing out the irony of the rest of the world struggling to figure out how best to empower plaintiffs to bring appropriate class action type proceedings while the U.S. Supreme Court remains principally concerned with how to restrain or eliminate the very same type of action.

Keywords: antitrust; competition law; class action; collection; aggregate litigation; arbitration, civil procedure, opt out; opt in; European Union; damages directive

JEL Classification: L4, L41, K21, K41, K42

Suggested Citation

Waller, Spencer Weber and Popal, Olivia, The Fall and Rise of the Antitrust Class Action (August 10, 2015). World Competition: Law and Economics Review, 2016. Available at SSRN: https://ssrn.com/abstract=2641867 or http://dx.doi.org/10.2139/ssrn.2641867

Spencer Weber Waller (Contact Author)

Loyola University of Chicago, School of Law - Institute for Consumer Antitrust Studies ( email )

25 E. Pearson
Chicago, IL 60611
United States
312-915-7137 (Phone)
312-915-7201 (Fax)

Olivia Popal

Loyola University Chicago, School of Law, Students ( email )

25 E. Pearson
Room 1041
Chicago, IL 60611
United States

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