Kilpatrick Townsend

D.C. Circuit denies class certification where putative antitrust class includes uninjured class members

In a prior post [First Circuit addresses an issue that continues to vex (and split) the circuits: should a class be certified that includes uninjured class members? (October 24, 2018)], we reported on a First Circuit antitrust decision (In re Asacol Antitrust Litigation, 907 F.3d 42 (1st Cir. 2018)) that surveyed the state of the law and ruled that if a class definition includes uninjured class members (or at least class members whose injury cannot be presumed), a class cannot be certified because individual issues will predominate.  We now add another federal circuit court of appeals to that list:  In re Rail Freight Fuel Surcharge Antitrust Litigation, MDL No. 1869, --- F.3d ---, 2019 WL 3850581 (D.C. Cir., Aug. 16, 2019).  That case involved an alleged class of more than 16,000 shippers allegedly injured by a price-fixing conspiracy among the largest freight railroads in the United States.  The district court denied class certification because the “regression analysis” performed by the class plaintiffs’ expert witness – which constituted the class members’ class-wide evidence for proving causation, injury, and damages – measured negative or no damages for over 2,000 members of the putative class.  2019 WL 3850581, at *1.  Because (among other reasons), over 2,000 class members was not de minimus, the D.C. Circuit affirmed.  Id. at *4-6.  As with Asacol, the D.C. Circuit’s decision outlines a defense strategy for opposing putative classes that include uninjured members.