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Kristin McNamara, William Rooney, Jun 25, 2008
Courts are increasingly examining the factual and economic substance of putative class plaintiffs assertions that they will prove with common evidence a common injury to all members of the alleged class. In the antitrust context, a legal standard that requires a genuinely “rigorous analysis” of whether common questions predominate over individual issues has led courts to examine whether plaintiffs have identified common evidence capable of establishing that each putative class member sustained an antitrust injury. Although antitrust injury has been central to standing analyses and merits determinations for years, its appearance in the class certification context has been relatively recent, has received little attention, and has accompanied courts willingness to examine class issues even if they overlap with merits issues. Litigating aspects of antitrust injury at the class certification stage has allowed defendants to test important substantive allegations before plaintiffs increase significantly defendants damages exposure through the Rule 23 certification process.