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U.S. class actions – will the Supreme Court continue to rein them in?

Anne M. Rodgers, Norton Rose Fulbright Memorandum, October 2015

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Corporations worldwide are frequent targets of class or group actions. The respondents to Norton Rose Fulbright’s 2015 Litigation Trends Annual Survey – primarily general counsel – indicated that the increasing number of class or group actions and a more litigious business environment were the most important issues impacting companies.1 Class action lawsuits were listed as the top litigation issue by respondents in the US, Canada, and Australia.

A quarter of all respondents reported at least one class or group action pending against their companies in the preceding 12 months, with survey participants from the US comprising 80 percent of that number. And 71 percent of those who reported a class action had more than one filed against their companies during that period. Of those who have had a class or group action brought against their companies, 30 per cent indicated that one or more were certified.

Although the volume of reported antitrust/competition class or group actions in the survey was significantly less than other categories (labor/employment, consumer, securities, or mass tort), the expense of litigating antitrust class actions and the ultimate threat of automatic treble damages under the US antitrust laws ensures that those cases become the focus of C-Suite attention.

On the US antitrust class action front, courts have been grappling with class certification determinations in the wake of the Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). The Court had been expected to use Comcast as an opportunity to resolve a circuit split on whether courts must decide challenges to experts at the class certification stage, but the majority opinion never got that far. Instead, it resolved the case based on predominance grounds, holding that the expert’s methodology for calculating damages was too far removed from the liability theory of antitrust impact that was accepted for class-action treatment to support a finding that proof of damages could be determined on a class-wide basis.

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