Regulating Corporate Behaviour through Collective Claims in the EU and US
Chapter 3: “Managing” antitrust class actions under Rule 23(b)(3) FRCP: who “plays the pipe”? And who pays the piper?
Chapter 2 examined the rationale of the requirements of “typicality” and of “superiority” of collective over individual litigation, provided by Rule 23(b)(3) with a view to granting class certification. It was emphasized that, just as for the conditions of “commonality” and of the “predominance” of common over individual questions of fact or of law, these conditions pursue objectives of fair and efficient adjudication and of full access to justice, especially for those claimants who would otherwise have no incentive or the material wherewithal to initiate individual proceedings, due to the low value of their claim. In this specific respect, it was illustrated that compliance with the condition of typicality seeks to ensure the “good management” of class litigation, to the benefit of its legitimacy, especially vis-à-vis the rights of “absent parties”, by imposing on the named plaintiff the obligation to hold no “interest in conflict” with those of the other class members. In addition, by requiring the named plaintiff to demonstrate that there is no “superior” alternative to class litigation, Rule 23(b)(3) ensures that collective proceedings represent the “most efficient” options for the litigants as well as the courts. Thereafter the chapter briefly examined the nature and function of the “notice requirement” established by Rule 23(b)(4) FRCP and emphasized that the same “legitimacy” rationale lies at the basis of the obligation imposed on the named plaintiff to give the “best notice practicable” to all class members, once certification has been granted.
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