Antitrust and Consumer Protection
Competition: Spring 2014, Vol. 23, No. 1
Content
- Chair's Column
- Do First Amendment Principles Limit the Antitrust Agencies' Ability To Prohibit Enforcement of Standards-essential Patents?
- Does the First Amendment Immunize Google's Search Engine Search Results From Government Antitrust Scrutiny?
- Editor's Note
- First Amendment Protection For Search Engine Search Results
- Landmark Civil Price-fixing Verdicts of 2013: Lessons From the Vitamin C and Urethanes Trials With Trial Counsel and Observers William a. Isaacson, Daniel S. Mason, Joseph Goldberg, and Michael Tubach
- Lcd Redux: Follow-on Class Action and Direct Purchaser Litigation From 2012'S Doj Criminal Prosecutions Views from Trial Experts Bruce Simon, Howard Varinsky, and Robert Freitas
- Masthead
- Noerr-pennington: Safeguarding the First Amendment Right To Petition the Government
- Regulation of Companies' Data Security Practices Under the Ftc Act and California Unfair Competition Law
- The Irrelevance of the First Amendment To the Modern Regulation of the Internet
- The Market-participant Exception To State-action Immunity From Antitrust Liability
- The Misapplication of Matsushita's Heightened Summary Judgment Standard
- The Supreme Court In Borough of Duryea V. Guarnieri Signals a Retreat From Pre's Broad Deference To the Right To Petition
- Trial By Sample: a Post-game, Locker Room Chat Exploring the McAdams V. Monier Trial: a Roundtable With Trial Counsel Jeffrey Cereghino and William Stern
- Update On California State Antitrust and Unfair Competition Law and Federal and State Procedural Law
- Judges Speak Out: the Make-or-break Moment of Certifying a Class With Judges Marsha Berzon, Virginia Phillips, John Wiley, and Curtis Karnow
JUDGES SPEAK OUT: THE MAKE-OR-BREAK MOMENT OF CERTIFYING A CLASS With Judges Marsha Berzon, Virginia Phillips, John Wiley, and Curtis Karnow
Moderated by Penelope Preovolos;1 Edited by Penelope A. Preovolos and Dominique-Chantale Alepin
Grant or denial of class certification is often the make-or-break moment for both sides in antitrust, unfair competition and other complex cases. In the past three years, the Supreme Court has issued a series of important class certification decisions, including Wal-Mart v. Dukes,2 Amgen v. Connecticut Retirement Plants & Trust Funds,3 and Comcast v. Behrend.4 Comcast reversed the decision to certify a class in an antitrust case challenging the defendant’s allegedly anticompetitive practices in building its cable network. The Comcast decision sparked a sharp dispute between the majority, which held that the plaintiff must prove both classwide impact and the ability to prove damages on a classwide basis at the class certification stage, and the dissent, which argued that individual issues respecting damages do not preclude class certification. This trio of Supreme Court decisions has generated wide-spread commentary—and controversy—regarding the legal standards that plaintiffs and defendants must satisfy, and how the case law will play out in the real world in federal and state courts.
Thus, on October 24, 2013, Judges Marsha Berzon,5 Virginia Phillips,6 John Wiley7 and Curtis Karnow8 spoke at the 23rd Annual Golden State Antitrust and Unfair Competition Law Institute on the topic of class certification. They discussed their "real world" experience adjudicating class actions after Walmart, Amgen and Comcast, and suggested best practices for plaintiffs and defendants in moving for and opposing class certification.
What follows is an edited version of their remarks.