PHILADELPHIA, Dec. 30 /PRNewswire-USNewswire/ -- Buchanan Ingersoll & Rooney PC attorneys Steven E. Bizar, Howard D. Scher, Thomas P. Manning and Landon Y. Jones today obtained a significant victory for clients Arkema Inc. and Arkema France, as well as all antitrust defendants and class action defendants generally, in a decision that will affect the requirements for establishing a class in future actions. The decision delivered today by the United States Court of Appeals for the Third Circuit vacated a district court opinion that had certified a class consisting of purchasers of hydrogen peroxide, sodium perborate and sodium percarbonate between September 1994 and January 2005. In In re Hydrogen Peroxide Antitrust Litigation, the Third Circuit clarifies the standard for granting class certification generally and rejects the suggestion that a court should err in favor of certifying an antitrust class action. The opinion also rejected the district court's assertion that an antitrust class plaintiff need only demonstrate an "intention" to establish the elements of its claims through classwide proof and make a "threshold showing" that the proposed class meets the requirements of Fed. R. Civ. P. 23. Rather, the Court of Appeals explained, a plaintiff must establish, by a preponderance of the evidence, that the requirements of Rule 23 have been met before the district court may certify a class.
In Hydrogen Peroxide, the parties presented disputed expert evidence on the issue of whether the proposed class met the predominance requirement of Rule 23(b)(3). The heart of the issue in the district court was whether the plaintiffs could establish the fact of injury, which is an element of each proposed class member's antitrust claim, through common proof. The district court, believing it was barred from resolving disputes between plaintiffs' and defendants' experts at the class certification stage, certified the class, based upon its acceptance of the opinion of the plaintiffs' expert that impact could be established through common proof.
The Court of Appeals held that where there is a genuine dispute over whether the fact of impact can be established through common proof, the district court must resolve that issue after considering all of the evidence, including conflicting expert evidence. Even if a plaintiff presents admissible expert evidence meeting the standards of Federal Rule of Evidence 702, Rule 23 still requires "rigorous analysis" of the proposed expert's opinion and weighing conflicting expert opinion may be integral to that rigorous analysis. The Court of Appeals explained that "resolving expert disputes in order to determine whether a class certification requirement has been met is always a task for the court," even if a dispute might implicate the credibility of the experts or overlap with the underlying merits of the case.
Steven E. Bizar, Howard D. Scher, Thomas P. Manning and Landon Y. Jones of Buchanan Ingersoll & Rooney PC in Philadelphia represented defendants Arkema Inc. and Arkema France in both the district court and the Court of Appeals. Bizar argued the case on behalf of all defendants. The case is captioned In re Hydrogen Peroxide Antitrust Litigation, Case No. 07-1689 (3d Cir.).
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