Third Circuit Clarifies Requirements for Class CertificationOn January 6, 2009 by Schnader
After the United States Department of Justice and the European Commission began investigating possible price-fixing violations of the antitrust laws in the hydrogen peroxide industry, several purchasers filed class action complaints against the producers of hydrogen peroxide, sodium perborate and sodium percarbonate alleging a conspiracy in restraint of trade under the Clayton and Sherman Acts.
After extensive discovery, plaintiffs moved to certify a class of direct purchasers under Rule 23(b)(3), which is permissible when the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The key issue in this case was whether the plaintiffs could establish that the alleged conspiracy caused each of them to incur economic injury (“antitrust impact”), a necessary element of their antitrust claim, through common proof.
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