Summary
Plaintiffs will increasingly face rigorous analysis by courts at the class certification stage. Since the passage of CAFA, the Second Circuit has led the way in increasingly weighing and adjudicating conflicting evidence in deciding whether to grant class certification. With its decision in Hydrogen Peroxide, the Third Circuit has joined the growing convergence toward applying the rigorous analysis standard (with the notable exception of the District of Columbia).
Analysis
As for litigation strategy, plaintiffs must now devote more resources -- and upfront work developing the merits of the case -- before class certification. Class certification is now a more uncertain proposition for plaintiffs, and plaintiffs' ability to forum shop has been diminished. Increasingly, the quality of expert analysis will tip the result one way or the other. The Second Circuit has directed courts to evaluate the ability of econometric models to accurately and realistically explain the data. Thus, while plaintiffs should use discovery to establish a stronger factual record prior to filing their certification motion, defendants can also use discovery to their benefit.
The adoption of the rigorous analysis standard appears to be growing. The Second Circuit has applied rigorous analysis in securities (In re IPO Securities Litigation) and antitrust class actions. The Ninth Circuit announced its agreement with the rigorous analysis in a wage and hour class action (Dukes v. Wal-mart). The First and Eighth Circuits, unlike some others, do not require findings of fact at the class certification stage in antitrust cases, but have converged toward the rigorous analysis standard.
Finally, the rigorous analysis standard may present a higher hurdle for indirect purchaser antitrust actions than for direct purchaser actions.
