I have posted a draft of my newest article - Striking an Efficient Balance: Making Sense of Antitrust Standing in Class Action Certification Motions - on SSRN.
My thesis is that a district court judge considering a motion for class certification in an antitrust class must preserve the bargaining relationship of both the putative plaintiff class and the defendant(s) through an analysis of both the Article III and antitrust standing doctrines. In the article, I demonstrate the adverse impact an imprudently certified class will have on the consuming public as a whole. I propose that by considering the antitrust standing (and thus antitrust injury) of a putative plaintiff class at the certification stage of the litigation, efficient conduct – and thereby consumer welfare – will be achieved.
The trouble is that ascertaining antitrust standing can be quite complicated, almost always invoking issues typically reserved for the merits of a case. This is problematic, because a district court judge is bound by the Supreme Court's admonishment to avoid "inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974).
I welcome any comments on the piece.
Sunday, February 28, 2010
Balancing on the Edge of the Merits
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1 comment:
Kelly, I have read the thing.
A note on form. I am unhappy with footnotes. I prefer endnotes because when I go to print the thing, I can lop off all those extra pages of citation. I've gone green, which agrees nicely with my aversion toward scholarship; just like those climate dudes at the UN. I learned it from watching them.
There is a missing 'it' at the bottom of page 9, which I think was intended to follow "As the Ninth Circuit aptly put...". I mention this not to be disagreeably critical, but because I know authors like to know of such omissions, which predictably elude people who know what is being said and so substitute words into a sentence.
One more thing before getting to the meat: you have a habit of placing a comma after the phrase "This is so" when it begins a sentence. It's probably the case that doing so is not incorrect, but alas anyway.
Regarding your thesis, I do not disagree. Class certification is a Rubicon, and crossing it changes the litigation from a contest of assessing where the merits lie to a pragmatic consideration, on the defense side, of historical odds and attendant costs, even of a victory.
I haven't the competence to expand on your thesis or to suggest things natural to it that you haven't thought of, but a concern did occur to me as I read the paper.
Namely, you trust the fate of the markets, perhaps out of necessity, to the judge bringing to bear "rigorous consideration" (great name for a band, by the way) to the question of antitrust standing/certification. My concern is that there are likely many judges out there sufficiently unsophisticated in economics that their decisions on antitrust standing/certification will be a result of wherever they land after being blown hither and yon by the contending experts. That is to say, insofar as market inefficiencies are realized by the degree of uncertainly in legal outcomes, uncomprehending "rigorous consideration" could be as likely as random chance to achieve an optimal level of enforcement.
Are you concerned at all about the potential of the complexity of antitrust injury questions to undermine the effectiveness of your thesis?
I wonder if you know whether anyone has ever advocated for an antitrust court, which would have a small number of judges expert in the field. I know that is a dangerous path to go down, because sooner or later every discrete type of litigation can fashion an argument that it should have its own court.
Finally, does history suggest I am wrong? I mean, is there a track record of predictability re: judge's decisions in like cases at the certification/standing stage where there has been something like "rigorous consideration"? I seem to remember from Antitrust class that courts making final decisions (i.e. rendering decisions beyond any question of standing and not usually in the private enforcement context) were all over the map re: what ran afoul of the antitrust laws when the same sort of activity was under review.
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