Previous business/academic article Next business/academic article
Private Enforcement

From Hydrogen Peroxide to Comcast: The New Rigor in Antitrust Class Actions

James Keyte, Paul Eckles, and Karen Hoffman Lent, Research in Law and Economics, Forthcoming 2014.

See James A. Keyte's resume See Paul M. Eckles's resume See Karen Hoffman Lent's resume

Click here to read the full article online

In 2009, the Third Circuit decided Hydrogen Peroxide, which announced a more rigorous standard under Federal Rule of Civil Procedure 23(b)(3) for assessing whether a putative class could establish antitrust injury. Earlier this year, the Supreme Court decided Comcast v. Behrand, a case that carries potentially broad implications for both antitrust cases and Rule 23(b)(3) class actions generally. A review of the case law starting with Hydrogen Peroxide and continuing through Comcast and its progeny reveals the new rigor in antitrust class action decisions and suggests what the future may hold, including the type of arguments that may provide defendants the most likely chance of defeating class certification. After Comcast, rigor under 23(b)(3) can no longer be avoided in assessing all class actions questions, and courts should now apply Daubert fully in the class setting concerning both impact and damages. Courts should also closely evaluate plaintiffs’ proposed methodologies for proving impact to determine if they apply to each class member. Finally, courts will inevitably have to determine how rigorously to scrutinize experts’ damages methodologies and whether Comcast requires or suggests more scrutiny in assessing common evidence for measuring damages.

© 2014 - Institute of Competition Law Download our brochure