Hydrogen Peroxide: The Crest of the Wave

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Kenneth Ewing, May 14, 2009

On January 16, 2009, the Court of Appeals for the Third Circuit issued an amended decision in In re Hydrogen Peroxide Antitrust Litigation, resoundingly confirming that it requires rigorous assessment of whether a federal court claim qualifies for treatment as a class action under Rule 23 of the Federal Rules of Civil Procedure. The decision contributes significant heft to the wave of recent appellate court decisions on this case-defining question. It addresses all the issues considered by other appellate courts in recent years and leaves no doubt that in the Third Circuit, as in a majority of others, district courts may not shy away from scrutinizing the plaintiffs’ case to determine whether the requirements of Rule 23 are met. Hydrogen Peroxide also offers some guidance on handling the ubiquitous battle of class action experts in antitrust cases. After summarizing the majority rule as reflected in Hydrogen Peroxide, this article offers some practical observations, particularly in light of a very recent district court decision attempting to implement the majority rule in a case very similar to Hydrogen Peroxide.