Third Circuit Requires District Courts to Make Findings that Each Element of Rule 23 is Met Before Granting Class Certification

Originally published January 16, 2009

Keywords: Third Circuit Court of Appeals, Sherman Act, class certification, Hydrogen Peroxide Antitrust Litigation, Federal Rule of Civil Procedure 23, common questions of law

The US Court of Appeals for the Third Circuit recently clarified the standard of proof necessary to permit class certification. In In re: Hydrogen Peroxide Antitrust Litigation, No. 07-1689 (3d Cir. Dec. 31, 2008), the Third Circuit vacated a district court's decision to certify a class in a significant antitrust lawsuit, and held that the lower court had failed to resolve disputed issues concerning whether each requirement of Federal Rule of Civil Procedure 23 had been satisfied. The Hydrogen Peroxide decision joins the recent trend of federal courts of appeal calling for careful scrutiny of requests for class certification. The decision is important because it underscores the principle that Rule 23's requirements "are not mere pleading rules," but