Antitrust and Unfair Competition Law

Competition: Spring 2014 Vol. 23, No. 1


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,2Amgen 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,6John 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.

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