Economic analysis now plays an important role at the class certification stage of antitrust class actions. This is due to the increased scrutiny by courts of plaintiffs’ class action allegations. Although not all federal courts apply a rigorous analysis to class action allegations, the trend is moving in this direction. As a result, there is a real opportunity now, with the help of economic experts, to defeat certification of antitrust class actions.The critical battle in certification of a class pursuant to Federal Rule of Civil Procedure 23(b)(3) is whether plaintiffs can establish that common issues predominate over individual issues. Economists opine on whether plaintiffs can prove the elements of an antitrust claim-existence of a conspiracy, market definition, market power, anticompetitive effect-with common evidence.
For antitrust class actions whether a class will be certified under Rule 23(b)(3) often turns on whether a defendant (and the economist it has retained) succeed in convincing the court that plaintiffs will be unable to prove antitrust injury to all alleged class members through common evidence.