Regulating Corporate Behaviour through Collective Claims in the EU and US
Chapter 2: Rule 23 FRCP: “aggregating” individual antitrust claimants in “diffuse injury” cases – the certification criteria of “commonality”, predominance and superiority and the obligation to serve notice
This chapter seeks to analyse the way in which Rule 23 FRCP “aggregates” individual antitrust claims into a collective lawsuit. After giving a brief overview of the nature, rationale and function of class actions generally, it will illustrate the approach adopted by the US Federal Courts to the requirements for class certification in antitrust cases and will focus on the requirements of “commonality” in terms of the relevant questions of fact and of law, of the predominance of “common” over individual issues and of the superiority of the class action over other methods of dispute resolution. Thereafter, it will consider the importance of the obligation to give notice of impending actions to the prospective class members, for the purpose of allowing them, if they so wish, to “opt out” of the class that has been certified, especially in light of the res judicata effect arising from the judgment (or from the settlement) vis-à-vis all class members, whether “absent” or not. It will be argued that this type of class action constitutes a suitable tool with which to effectively “mobilize” individual plaintiffs, who would not otherwise have “their day in court”, due to the limited amount of their claim, by aggregating these small lawsuits into larger collective ones that can, therefore, be pursued in the respect of principles of judicial economy and efficiency.