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Appeals Court Levels Class Action Playing Field

Defending an antitrust class action is like playing a game of financial Russian roulette--you might win, but if you don't, the results will be ruinous.

Once a class is certified, corporate defendants face the prospect of joint and several liability and potentially crippling treble damages. The risk is so high that most companies, even innocent ones, are forced to settle.

"The court will dig into both experts' reports and provide an opportunity for cross examination," explains Joseph Tate, a partner at Dechert. Tate represented FMC Technologies Inc. in the Hydrogen Peroxide case. "This provides a realistic opportunity for defendants to defeat class cert," he says.

Tate predicts that adding a hearing phase will result in far fewer class action certifications. In most instances, it's difficult for plaintiffs to show that price fixing had an impact on a class by common proof, he points out. In the past, just alleging that there was a methodology for proving damages to the class was enough to support a class action. Now, plaintiffs will face a higher burden of actually explaining how they propose to do it and showing that their proposed class meets the requirements of Federal Rule of Civil Procedure 23.

Adele Nicholas

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