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Damage Class Actions After Comcast: A View from the Plaintiff’s Side

Michael Hausfeld and Irving Scher, Antitrust Magazine (Spring), 2016

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Certification of Antitrust class actions seeking treble damages pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure has become more challenging during the past decade. This has been particularly so when some class members may not have been injured or when expert evidence has not closely tracked the plaintiffs’ liability theories. The trend started with several appellate decisions favorable to defendants on the Rule 23(b)(3) requirement that questions common to the class must predominate over individual questions (“predominance”). Then, in 2011 the U.S. Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, ruling that a court considering the “common question” element of Rule 23(a) could take into account overlapping issues involving the merits of the underlying claim. Although not an antitrust case, some commentators opined that Dukes heightened the level of rigorous scrutiny courts were required to give to class certification motions generally, particularly to the Rule 23(b)(3) requirement that common questions predominate.

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