Attacking Class Certification On A Motion To Dismiss? A Recent Decision Says There Is A Way

Antitrust class action counsel are in the business of extracting cash from defendants in the form of settlements that are, in effect, a tax on every transaction in the market covered by the case. The bigger the market, the greater the number of the transactions, the bigger the payday for class counsel.

Over the years, plaintiffs' counsel have developed two powerful tools to maximize their profits: the overarching conspiracy allegation and the broad class definition. The first allows plaintiffs to stitch together disparate events – often separated in time and space and involving different actors – into tales of broad market manipulation. This allows them to threaten entire industries with joint and several liability. A broad class definition, in turn, allows plaintiffs to seek damages on behalf of virtually all consumers.