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Hastings Law Journal

Abstract

Certification of Rule 23(b)(3) antitrust class actions has consumed large amounts of legal energy, with confusing and conflicting results. This Note evaluates current judicial treatment of the predominance of common questions and superiority requirements of Rule 23(b)(3). Using cases involving conspiracies in restraint of trade and unlawful tie-in sales to highlight the impact of procedural decisions in this area on substantive antitrust policies, the author urges a flexible approach to certification that reflects these substantive policies. The Note concludes by briefly discussing legislative dissatisfaction with current class proceedings and by calling for the continued evolution of an active trial bench.

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