Curtailing The Impact of Class Actions On Antitrust Policy

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Eisen v. Carlisle & Jacqueline

*Supreme Court decision in 1974 holding that a court may not base a determination whether or not to certify a class based on a preliminary assessment of the merits

*In Eisen’s wake, class certification became progressively easier

• Most courts ruled that, on a motion to certify a class, the plaintiffs’ allegations on the merits must be accepted as true

• Many courts went further, holding that “any doubts” had to be resolved “in favor of certifying the class”

• On the often determinative issue of common impact, courts said they “only must find that plaintiffs have set forth a valid methodology for proving antitrust impact common to the class, not that they will prove it.”

• Second, Third, Ninth Circuits even said that challenges to the presentation of the plaintiffs’ expert – often the only source of evidence supporting class certification – were limited to determining whether the expert’s “proposed methods are so insubstantial as to amount to no method at all.”

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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