Shannon P. Duffy of The Legal Intelligencer has authored an article summarizing the Third Circuit Court of Appeals’ decision in In re Hydrogen Peroxide Antitrust Litigation, No. 07-1689 (3d Cir., Dec. 30, 2008), which the article calls a “ruling that is sure to be required reading for antitrust lawyers.” The decision also addresses more general class certification issues that are sure to be of interest to lawyers to practice in other areas.
In particular, the Court has an interesting analysis of how a trial court must weigh conflicting expert testimony on class certification issues in carrying out the “rigorous analysis” required of a federal court in evaluating whether a class should be certified under FRCP 23. The trial court had considered only whether the plaintiff had offered expert testimony that could be considered admissible under a Daubert analysis in finding that the plaintiff had established that the issue of antitrust injury was susceptible to common, class wide proof. The trial court refused to weigh this evidence against the conflicting expert testimony offered by the Defendant that the antitrust injury could not be determined on a class wide basis. The Third Circuit reversed, holding that the trial court was required to also consider conflicting expert testimony and then make a decision whether the issue was truly susceptible to class wide proof. The court was clear that on remand, the trial court did not have to accept the defendant’s expert’s view, it merely had to demonstrate that the expert’s testimony had been considered in making an actual determination.
The decision reaffirms the idea that in carrying out the “rigorous analysis”, a district court must not shy away from making an actual determination of each of the issues necessary for class certification, even if that determination involves weighing conflicting testimony or involves deciding an issue that also happens to be a disputed issue on the merits of the plaintiff’s claims. A court must not simply give the plaintiff the benefit of the doubt or view the evidence in the light most favorable to the plaintiff, as in ruling a motion to dismiss under FRCP 12(b)(6).