Are courts making class certification too easy for defendants to oppose? San Francisco law professor Joshua P. Davis (this one, not this one) and Berger & Montague shareholder Eric Cramer argue just that in an forthcoming article in the Rutgers Law Journal, “Of Vulnerable Monopolists?: Questionable Innovation in the Standard for Class Certification in Antitrust Cases.”

The article critiques those appellate decisions – most notably In re Hydrogen Peroxide Antitrust Litigation – that have ruled that a court “must make whatever factual and legal inquiries are necessary and must consider all relevant evidence and arguments presented by the parties” in deciding certification. Davis and Cramer make four arguments against the use of limited merits inquiries: (1) certification standards need to be looser, not more stringent; (2) heightening the certification standard may violate the Seventh Amendment; (3) forcing an early inquiry into classwide evidence forces an inquiry into (at least in antitrust cases) issues irrelevant at trial; and (4) making the certification standards tighter constitutes a “back-door change” to Rule 23.

Davis and Becker’s arguments are all interesting, if flawed. But (3) is the argument a defendant is most likely to see in class-certification briefing. Davis and Becker argue that delving into contested facts at class certification:

“could effectively force plaintiffs to prove something relevant to “the merits” at class certification that they would not need to prove on “the merits” at any other stage in the case, including at trial. The inquiry into common impact is at times framed as addressing whether plaintiffs can show with class-wide evidence that all or virtually all class members suffered at least some harm. In reality, however, as long as harm is reasonably widespread across the class, it is highly unlikely that the issue of the proportion of the class that suffered harm — for example, whether 60%, 75%, or 99% of the class members paid overcharges — would even come up at a class trial.”

(Emphasis in original, footnote omitted.) According to Davis and Becker, plaintiff’s counsel won’t bring up non-injured class members because they’re irrelevant, and the defense will have no reason to because the plaintiff has conceded they weren’t harmed. So why address these class members at certification?

The largest flaw with this argument is that it assumes that a class trial is identical to an individual trial. But it’s not. Unlike an individual trial, a class trial isn’t necessarily finished when the jury renders a verdict. A class action exists to provide relief to the members of the class. If the class contains both injured and uninjured members, then the trial must include a claims process to separate the injured from the uninjured. And that process is one that class members (who need it for relief), the defendant (for whom it will decide the total liability) and the court (which cares about the administration of justice) all do care about. So even in antitrust cases, the predominance inquiry is central to how the court conducts the entire trial. If a plaintiff advances Davis and Becker’s argument, a defendant can profitably point out that the claims process is only irrelevant if the plaintiff does not care whether injured class members receive relief.