What, if any, mechanisms are available to aggregate competition damages claims (e.g. class actions, assignment/claims vehicles, or consolidation)? What, if any, threshold criteria have to be met?

Competition Litigation

Belgium Small Flag Belgium

Under Belgian law, actions for collective redress can be brought by a qualified group representative for infringements of Belgian or EU competition law. Only a few specific associations such as certain recognised consumer or SME rights organisations can qualify as group representative and bring such a claim. All general rules for competition damages claims apply to these class actions, except for two: defendants cannot claim that consumers passed on the overcharge to third parties and the proceedings cannot be stayed in case of an attempt for amicable resolution of the dispute (see below).

Furthermore, damages claims may be assigned to claims vehicles, which may then bring those claims to court. However, while claims which are already pending before a court may be purchased, the defendant may, in those circumstances, end the case by paying the amount which the purchaser has paid for the claim.

Finally, several claimants can appoint a single law firm to join their related claims into one writ, starting one proceeding. Belgian courts can also decide to treat similar claims together in one proceeding, and to this end they may join together related claims that were brought before them by separate claimants.

Brazil Small Flag Brazil

Based on the Article 129, item III of the Brazilian Federal Constitution, the Public Prosecutor’s Office (State´s Attorney´s Office) can file a class action on behalf of consumers or undertakings harmed by anticompetitive conducts. Moreover, class actions can also be brought by the Public Defender’s Office, the Union, States, municipalities, agencies, public companies, foundations, semi-public corporations or duly organized associations, on behalf of their members. Specifically on duly organized associations, they must be at least one year old before filing class actions.

These class actions are motivated by public interest objectives such as the protection of collective rights.

As public civil actions brought by the Public Prosecutor´s Office and the entities mentioned above are not part of the normal framework for private actions, the injured parties themselves will not be directly involved in the litigation. Damages for injury of collective interests will be directed to a public fund for protection of such interests. On the other hand, damages sustained by individuals and acknowledged by the judicial award are subject to separate and independent enforcement proceedings initiated by each individual. Such proceedings aim both at defining the amount due and enforcing the judicial award.

Finally, on State or Federal Courts of Appeals or the Superior Court of Justice, cases with similar discussions in the same point of law, may be united on a single proceeding named “Incident of Multiple Claims”. This proceeding will stay individual claims until a decision is reached on the Incident, which will bind all cases.

China Small Flag China

  1. There is no western type of class action under PRC law. Nevertheless, China has a collective and representative action regime in civil actions. If plaintiffs have a common subject matter or if their subject matters are of the same type, they may jointly file a lawsuit before a court. Where there are numerous plaintiffs in a joint action, representatives (2-5 persons) may be selected by and from the group of plaintiffs. The litigation actions of the representatives shall be binding upon the plaintiffs they represent. However, issues such as change or waiver of claims, confirmation of claims of the counterparties, as well as settlement, are subject to approval by the plaintiffs they represent. Judgments or orders rendered by the courts are effective for all joint applicants. The same judgments or orders are also binding on plaintiffs who have not participated in the joint actions but have instituted legal proceedings within the limitation period. The collective and representative action could be applicable to several types of disputes, e.g., property management disputes, or disputes arising from securities. As of this writing, we have not seen any collective and representative action in the AML civil cases.
  2. The standard for establishing a joint action is that either (i) the subject matter for each party is the same, or (ii) the subject matters for each party are of the same type, the court deems that the disputes of all the parties may be consolidated, and all the parties agree to consolidate their disputes.
  3. In addition, public interest litigation is also available under PRC law. According to Art. 55 of the CPL, for acts which harm public interest such as environmental pollution or infringement of the legitimate rights and interests of multiple consumers, the authorities or relevant organisations stipulated by law (e.g., Consumer Protection Association) may file a lawsuit. Further, the procuratorates are authorized to institute such public interest lawsuit instead, if no aforementioned authorities or organisations bring such lawsuit. Since the mechanism is not well established in China, it is still unclear how the mechanism would be implemented in practice, especially with respect to the competition damages claims.

Cyprus Small Flag Cyprus

Class actions, even though not expressly disallowed, are not followed in the Cyprus Courts system. The Rules of Civil Procedure provide that, where several persons have the same interest in one cause or matter, one or more of those may be authorised by the Court to sue or defend an action on behalf or for the benefit of all interested persons.

Additionally, pursuant to Order 14 of the Rules of Civil Procedure if multiple actions before the same Court involve common questions of law and/or fact bearing satisfactory importance comparably to the rest of the disputed issues in the actions, they may be consolidated.

Egypt Small Flag Egypt

Civil compensation claims could always be initiated by interested parties before the Economic Court against one or more accused parties. The class actions are not recognized in competition damages claims. However, this does not prevent harmed persons from consolidating their claims in one case.

France Small Flag France

French law provides for two mechanisms to aggregate competition damages claims, through a French model of class actions and joint representative actions. These mechanisms only apply to consumers’ damages claims, and not to companies suffering from competition harm. However, none of them has proven so far to be a successful means to compensate consumers for competition law infringements.

Class actions

Class actions were introduced in France by Law No. 2014-344 of 17 March 2014 on consumption (so-called “Hamon Law”).

French class actions are based on an opt-in system. They enable end-consumers to claim damages for the harm resulting from infringements of a series of legal rules, including competition law, by professionals. Only duly authorised consumer associations (there are currently 15) are entitled to launch such class actions on behalf of end-consumers (article L. 623-1 of the consumer code).

Class actions relating to anticompetitive practices cover the same types of conduct as individual competition damages actions (see above the answer to Question 1). They must be related to follow-on claims based on a decision from the FCA or the Commission (article L. 623-24 of the consumer code). Consumers are only entitled to claim damages for material loss, to the exclusion of non-financial loss (article L. 623-2 of the consumer code).

The class action procedure includes the following steps.

First, the court issues a declaratory judgment in which it establishes the professional defendant’s liability for the claimed infringement, defines the group of consumers that is entitled to compensation from this defendant, determines the type of harm that may be compensated and the elements on the basis of which the amount of damages should be determined for each consumer (articles L. 623-4 and L. 623-5 of the consumer code).

Second, any consumer belonging to the group defined in the declaratory judgment can join the proceedings, on an opt-in basis, within two to six months in order to obtain compensation (articles L. 623-8 and L. 623-9 of the consumer code).

Like individual competition damages actions, class actions are subject to a five-year limitation period running from the date when the decision of the FCA or the Commission becomes final (article L. 623-25 of the consumer code) (see above the answer to Question 5).

To date, no class action relating to anticompetitive practices has been introduced before French courts (the class actions that have been initiated so far relate in particular to real estate, insurance and data protection matters).

The reasons why class actions have not yet gained significant traction in French litigation can be explained by the following factors:

  • Consumers are not entitled to introduce class actions in their own name but have to rely upon authorised consumer associations. However, these associations are quite few in number (15), insufficiently known by consumers and have too limited resources (notably human and financial) to undertake a significant number of class actions and manage them efficiently;
  • Due to the opt-in nature of class actions in France, only consumers who are aware of their rights may join the class. These de facto requirements of awareness and information of consumers hinder the development of class actions;
  • Class actions relating to anticompetitive practices can only be introduced after a final decision of the Commission or the FCA establishing the infringement has been rendered (article L. 623-24 of the consumer code). In particular, the length of the action for annulment of an FCA decision, together with the length of the class action itself, may lead to proceedings lasting up to 15 to 20 years, thus having a deterrent effect on the initiation of class actions;
  • French Courts are required to quantify the damage suffered by each of the claimants (article L. 623-2 of the consumer code), which can prove extremely difficult and burdensome in some cases.

Joint representative actions

Aside from the class action, authorised consumer associations can introduce joint representative actions on behalf of at least two consumers suffering harm from the same anticompetitive behaviour (article L. 622-1 of the consumer code). However, this mechanism has been rarely used.

Germany Small Flag Germany

Model action for a declaratory judgment (Musterfeststellungsklage)

Generally, German law does not allow for class actions in the sense that one lead claimant pursues the action on behalf of other claimants from the class, which join the proceedings but remain idle. The basic principle in Germany requires every claimant in proceedings to have an active role in fostering the outcome of the case. The German legislator made, however, a cautious step towards mass litigation in November 2018 when it implemented the so called ‘model action for a declaratory judgment’ (Musterfeststellungsklage). The circle of potential claimants is limited to qualified associations acting on behalf of consumers, though. The Higher Regional Courts (Oberlandesgerichte) have exclusive jurisdiction for the model action. If the court considers the model action admissible, other consumers can file their own complaint with the Federal Office of Justice, who provides an official register for such model actions. Upon registration, the limitation period is suspended. As in regular litigation, the model action can either lead to a settlement or a judgment. The consumers that have registered their own claims can then either refer to the settlement or the award to pursue their individual damage claims. Nevertheless, each consumer must still exercise and enforce its claim individually, if necessary by bringing its own action before a court, which allows for different outcomes despite a positive decision in the model proceedings.

Assignment/claims vehicles

As in other EU countries, third-party funders have used individual legal entities as ‘claims vehicles’ in German cartel damage cases, especially German limited liability companies, which file the lawsuit in their own name after having been assigned the competition damage claims by the cartel victims. This is admissible if the use of the claim vehicle does not conflict with the rules of the German Legal Services Act (Rechtsdienstleistungsgesetz) that is aimed to protect clients seeking legal advice but also the legal profession from unqualified legal services. Violations of these rules may also lead to the nullity of such a setup. In addition, the assignments will be declared null and void because of a violation of public policy pursuant to section 138 BGB if the claim vehicle is not sufficiently funded to allow a prevailing defendant to recover its litigation fees afterwards.

Hong Kong Small Flag Hong Kong

No mechanism is available under the Competition Ordinance to aggregate competition damages claims. As a general matter, class actions are not available in Hong Kong.

Israel Small Flag Israel

The existing mechanism in Israel is a class action. The Class Action Law, 5766-2006 (“The Class Action Law”) allows the filing of a request to certify a class action on the grounds of violation of the Competition Law. In fact, Israel is considered to be liberal when it comes to certifying class actions and there are over 400 requests for class actions yearly; thus, class actions are very common in Israel both generally, and specifically in relation to the Competition Law.

There are two main stages in a class action: first, the court must certify that the claim should be considered a class action, when a violation of the Competition Law constitutes a cause of action under the law. For this purpose, it is necessary to prove the following conditions: the existence of a cause of action for a specific plaintiff; the existence of a prima facie cause of action; a cause for a joint claim by the plaintiffs; the plaintiff is appropriate.

If the request to certify the class action is granted, the main proceeding conducted in any civil suit begins with necessary changes. The process begins with the discovery procedure, and from there the evidence stage, affidavits and summation. It should be noted that in most cases, the parties reach a compromise immediately upon court approval of the class action. Such agreements must be approved by the court.

Japan Small Flag Japan

In Japan, there are mechanisms called group action (Shohisya Dantai Sosyo) and appointed party (Sentei Tojisya).

Group action

Group actions can only be used for limited situations, as provided in the Act on Special Measures Concerning Civil Court Proceedings for the Collective Redress for Property Damage Incurred by Consumers. Compared to the well-known U.S. class action, the characteristics of the Japanese group action are that (i) only specified qualified consumer organizations authorized by the government can serve as claimants (i.e. individuals cannot be claimants); (ii) the subject claims are limited to those arising from contracts between a consumer and a company; (iii) it is an opt-in type proceeding where only those who opt to participate in the group action proceeding may benefit from the judgment; and (iv) that the judge of a group action may only determine whether the company is liable for damages and the amount thereof cannot be fixed (each consumer needs to file a separate proceeding to establish the amount of damages).

Appointed party

The “appointed party” is a mechanism where persons with a common interest may appoint one or more persons from among themselves to stand as the claimant on behalf of all (Article 30 of the Code of Civil Procedure (“CCP”)). This mechanism has actually been used in a competition damages litigation in relation to a violation of the AMA. Appointed parties do not need to be lawyers but they must have a common interest with the other parties.

Assignment of claims

While it is theoretically possible for each claimant to assign its claims to a specific person, in Japan, it is not common for such a person to file a lawsuit for the assigned claims. This is because it is prohibited by Article 10 of the Trust Act to create a trust for the primary purpose of having another person initiate legal action and the aforementioned lawsuit has a risk to violate this provision.

The Netherlands Small Flag The Netherlands

Class actions are possible under Dutch law. A Representative Organisation, an association (vereniging) or foundation (stichting) established under Dutch law, that is permitted to represent the interests of parties which allegedly suffered damages in accordance with the criteria set out in article 3:305a DCC, can represent the interests of these parties and initiate one single claim against the responsible party before the Dutch court. As soon as the new approved legislation enters into force these organisation will also have standing to claim damages.

In addition, there are various examples of litigation vehicles funded by third parties, who either bring claims on behalf of a group of injured parties or who acquired the claims through assignment from those parties. Such vehicles are generally considered to have standing. Consolidation of identical or related cases pending before the same court is possible as well, which means that similar timelines will be applied by the court in each of the individual proceedings.

Philippines Small Flag Philippines

The Rules of Court allow class actions when the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties. In a class action, a number of persons with common or general interest, which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned, may sue or defend for the benefit of all.[22]

While class actions are a viable approach under Philippine law, they are not commonly filed in the Philippines (especially when compared to other jurisdictions such as the United States). Moreover, in a number of cases, the Philippine Supreme Court has dismissed class suits for failure of the plaintiffs to show that they adequately represent the class sought to be represented.

The Rules of Court also allow consolidation of actions involving a common question of law or fact.[23] Consolidation is proper whenever the subject matter involved and the relief demanded in the different suits make it expedient for the court to determine all of the issues involved and adjudicate the rights of the parties by hearing the suits together.[24]

To date, there have been no private actions, much less class actions or consolidated damages actions in the Philippines involving violations of the PCA.

[22] - Id.
[23] - Rules of Court, Rule 31, Section 1.
[24] - Deutsche Bank AG v. CA and Steel Corporation of the Philippines, GR No. 193065, 27 February 2012

Poland Small Flag Poland

Under the Polish law competition damages claims qualify for general class action proceedings. Under those rules a class action may be brought in cases where at least 10 persons pursue the same type of claims based on the same or alike factual background. Class actions can be brought by both natural persons and legal entities. In the proceedings, the group is represented by a sole representative who acts in his or her own name on behalf of the group and must be approved by all group members.

Apart from that, several persons may appear in one case as claimants if the subject matter of the dispute involves claims of one type, arising out of the same question of law or fact and if additionally, the court’s jurisdiction is justified for such claims (formal joinder of parties).

Moreover, contractual assignment of competition damage claims is also possible under the general rules of Polish civil law. In such case a party (also a third party) may aggregate claims of various entities in one proceeding and pursue them as their own in the proceedings.

Portugal Small Flag Portugal

For claims subject to the general provisions of the Portuguese Civil Procedural Code, third parties may join the proceedings as co-parties on an “opt-in” basis. In class action claims (“ação popular”), an "opt-out" system applies under Portuguese law, as the final decision will bind all potential claimants, except for those who formally “opt-out”. Although individual claims do not require any specific criteria besides the general rule, class action claims are a mechanism only available to citizens, foundations and associations in the context of consumer protection, as well as associations of companies that were injured by the specific infringement of competition law.

Argentina Small Flag Argentina

It is possible to bring actions on behalf of multiple claimants (for example, collective actions). Consumer associations or public bodies have standing to file collective actions.

In addition, multiples parties can act as claimant (litisconsorcio activo). However, in this kind of action the ruling does not have the same effect as a ruling issued in a collective action. In a multiple claimant action, the ruling only binds the parties that have directly acted in the proceeding as claimant or defendant.

No threshold criteria have to be met.

Sweden Small Flag Sweden

The Competition Damages Act, Section 2, mandates class actions. Such class actions shall be brought in accordance with the Class Action Act, which already previously mandated class actions for competition damages. No antitrust class proceedings have thus far been brought in Sweden.

There are three forms of class actions:

a. A private class action may be initiated by any person or entity, provided that such person or entity has a claim of its own and is a member of the class.

b. An organisation class action may be brought by certain organisations without them having claims of their own. Such actions may be initiated by consumer and labour organisations, and must, as a general rule, concern disputes between consumers and providers of goods or services.

c. A public class action may be initiated by an authority authorised by the government to act as plaintiff and litigate on behalf of a group of class members. This form of action is intended to allow authorities to pursue claims where the public interest, in a broad sense, suggests that action should be taken.

Bringing a class action requires that the questions of fact must be common or similar to the entire class. Further, the group of claimants must be ‘suitable’ with regard to size and character, and be well defined to enable individuals to establish whether they are covered by the class action.

Claimants in private class actions and organisation class actions must, in general terms, be represented by a member of the Swedish Bar Association.

Note that collective settlements require judicial authorisation: the court must approve any settlement entered into by the plaintiff on behalf of the group members. Such approval will be given unless the terms of the settlement are unreasonable or discriminatory.

In practice, the procedural questions regarding whether class actions will be approved take considerable time to decide, and in one case pertaining to another subject matter had to be finally settled by the Supreme Court several years later. The practical obstacles have, therefore, meant that there have been only a few class actions and none for antitrust damages. For the first 10 years since the Class Action Act was enacted we are aware of only approximately 10 cases in total.

The main benefits of class actions are the cost-sharing aspect, and that in some cases, the initiation of preparatory acts to gather members for a class action has proved to have a strong effect on the defendant’s will to enter into settlement negotiations.

Turkey Small Flag Turkey

Turkish law has no provision that permits class actions. Some laws exceptionally entitle certain bodies to file actions on behalf of their members. For example, the Law on the Protection of Consumers No. 6502 allows consumers’ associations to file lawsuits for infringements regarding the consumer protection law. The Competition Act, however, has no provision that entitles a specific group of people (e.g. consumers’ associations) to file civil lawsuits regarding competition law infringements.

The Civil Procedure Law No. 6100 introduced a new provision that under certain circumstances and conditions allows third-party legal entities, such as associations, to file lawsuits on behalf of themselves to protect the interests of their members and associates. These lawsuits can be commenced only to remedy the illegality that is the subject matter of the lawsuit, or to prevent the imminent violation of rights. Therefore, associations or other legal entities cannot file this type of lawsuit to claim compensation for damages that their members or associates suffered.

In Turkish civil procedure law, it is possible to voluntarily bundle individual claims by way of assignment. In these cases, the different claimants' claims will continue to exist as individual claims if these claims depend on common factual circumstances. If these individual claims are bundled, the claims can be litigated together. The courts can also request the mandatory bundling of individual claims if a specific right arising from substantive law is exercised by more than one claimant.

Australia Small Flag Australia

Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) contains a broad power to commence class actions where:

  • the action is brought on behalf of a minimum of seven people;
  • all the claims are against the same person;
  • all the claims arise out of the same or similar circumstances;
  • the action concerns a substantial common issue of law or fact.

Under the FCA Act, an individual can commence a class action on behalf of others without obtaining consent. However, members of the class are entitled to opt out of the action or bring their own action.

The ACCC can also bring representative action on behalf of persons who have suffered loss or damage (or are likely to suffer loss or damage) because of certain contraventions of the CCA pursuant to an express power in the CCA or under the FCA Act.

Canada Small Flag Canada

Class actions raising competition damages claims are available in all Canadian provincial superior courts, and in the Federal Court. While the criteria varies between courts, in order to certify a case as a class action, a plaintiff must generally satisfy the Court that the following criteria are met:

i. the pleadings or the notice of application disclose a cause of action; and

ii. there is “some basis in fact” for each of the following:

a. there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;

b. the claims or defences of the members of the class raise common issues;

c. a class proceeding would be the preferable procedure for the resolution of the common issues; and

d. there is a representative plaintiff or defendant who:

i. would fairly and adequately represent the interests of the class,

ii. has produced a plan for the proceeding setting out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

iii. does not have, on the common issues for the class, an interest conflicting with the interests of other class members.

Italy Small Flag Italy

Class actions are available to harmed parties in the case of competition damages claims.

As at today, only ‘consumers’ or ‘users’ can file a class actions whereas undertakings (individual undertakings too) acting within the scope of their trade, business or profession cannot benefit of this peculiar instrument. However, starting from 19 April 2020 this will change as a consequence of a very recent reform of class actions brought by Law No. 92 of 12 April 2019 that provides that to be admitted to the class action claimants need to be holders of ‘homogeneous individual rights’, either individually or through organisations or associations, provided that they are registered in a public register to be set up at the Ministry of Justice.

General rules on class actions apply with no specific provisions for the subject-matter at issue.

Moreover, apart from class action, the so-called ‘collective actions’, which entail a plurality of claimants and defendants, are possible too. It shall also be noted that, as a general principle, voluntary joinder of third parties in ordinary civil proceedings is always possible under general rules of ICCP.

Romania Small Flag Romania

Under Romanian law, there are no provisions regarding specific mechanisms for the aggregation of competition damages claims, but there are no regulations impeding such mechanisms either.

As such, under the general civil law rules, plaintiffs are at liberty to (i) bring a common claim, if they have the same cause of action or there is strong connection between their rights (ii) assign their litigious rights, or (iii) file a motion for the joining-in of their claim to another similar claim (which will be granted if the court deems that a close connection between the cases warrants it).

No threshold criteria are imposed for such procedural instruments (see questions 19 and 20).

United Kingdom Small Flag United Kingdom

A new collective action procedure for private actions for breaches of competition law came into force on 1 October 2015. The regime enables claims to be brought on behalf of a class of claimants by a class representative. However, a proposed collective action may only proceed to trial if the CAT makes a “collective proceedings order” (“CPO”) authorising the proposed class representative and certifying that the claims are eligible for inclusion on the basis that they are brought on behalf of an identifiable class, raise common issues and are suitable to be brought in collective proceedings. The CPO will also determine whether the collective proceedings will continue on an opt-in or opt-out basis. The CAT rejected the first two CPO applications. However, in April 2019, the Court of Appeal overturned the CAT’s refusal to grant a CPO to Walter Merricks in respect of a proposed action on behalf of 46 million consumers concerning MasterCard interchange fees (Walter Merricks CBE v Mastercard Incorporated & Ors [2019] EWCA Civ 674). If upheld on appeal to the Supreme Court, the Court of Appeal’s judgment would make the CPO criteria easier to satisfy. The four other pending CPO applications are likely to be put on hold until the outcome of any Supreme Court appeal is known.

Under the general procedural rules, the court can also make a “group litigation order” (GLO) which provides for individual claims that give rise to common or related issues of fact or law to be managed together. Claims managed under the GLO will be entered on a group register. Unless the court orders otherwise, a judgment or order made in one claim on the group register in respect of a GLO issue is binding on all other claims entered on the register at the time of judgment. The individual GLO claimants may choose to appoint a common legal representative, but this is not obligatory.

Under the general “representative action” procedure, the court can also direct that a claim may be begun or continued by one or more persons as representatives of any other person who has the same interest in that claim. Unless the court orders otherwise, any judgment or order given in such a claim is binding on all persons represented in the claim, although it may only be enforced by or against non-represented persons with the court’s permission. This procedure is rarely used. An attempt by two flower importers to deploy it on behalf of all direct or indirect purchasers of air freight services affected by the air cargo cartel was struck out in 2009 on the basis that (i) the represented class did not have the same interest in the claim at the time the claim was begun and (ii) there was inevitable conflict between the claims of the different class members (Emerald Supplies Ltd v British Airways PLC [2009] EWHC 741 (Ch).

There are also general procedural rules by which parties may consolidate individual proceedings or add third parties to existing proceedings.

Colombia Small Flag Colombia

a. Individual Actions: According to article 148 of the General Procedural Code, the aggregation of claims can be made by the judge ex officio or by request of the plaintiffs in the following cases:

  • When the claims could have been made in the same action.
  • When the claims are related, and the parties are reciprocating plaintiffs and defendants.
  • When the defendant is the same in all the claims and the defences proposed are supported on the same facts.

The aggregation can be made as long as the judge has not scheduled the initial trial.

b. Collective Actions: For its nature, the collective actions are designed to protect a group of people. Regarding a class action, any person that considers that has the same uniform condition as the other members of the group can request its aggregation to the claim before the start of the probationary period of the process. After that moment, any individual can be aggregate but cannot claim extraordinary damages seeking a higher compensation, nor can be benefited by the costs to be paid by the defeated defendant of the case.

Regarding popular actions, the sentence will have a sentence in genere and the interested parties shall undertake a small procedure for the determination of the sentence in particular determining the compensation.

United States Small Flag United States

Antitrust cases are typically brought as class actions in the United States.

To certify a class, Rule 23 of the Federal Rules of Civil Procedure requires (1) numerosity (ie the class is so numerous that joinder is impracticable), (2) commonality (ie there are questions or law or fact common to the class), (3) typicality (ie the claims or defenses of the representative parties are typical of the claims or defenses of the class), and (4) adequacy of representation by the class representative (ie the represent will adequately protect the interests of the class). In addition, a plaintiff must show that certification as a class is appropriate for at least one of the following reasons: (1) to avoid prejudicing certain parties; (2) the defendant has acted or refused to act on grounds generally applicable to the class so that equitable relief is appropriate, or (3) common issues of law or fact predominate and class treatment is a superior means of adjudication. These elements must be satisfied through evidentiary proof.

The transfer of related claims for consolidated or coordinated pretrial proceedings is appropriate where there are common issues of fact, and consolidation and centralization would ‘serve the convenience of the parties and promote the just and efficient conduct of litigation.’ 28 USC § 1407. The Judicial Panel on Multidistrict Litigation, created by Congress in 1968, considers several factors when determining whether centralization and transfer is appropriate. Conspiracy allegations in antitrust cases are commonplace and exist as questions of fact that justify centralization and transfer. Further, the Panel considers whether the actions involve overlapping putative classes, and in such cases, centralization is essential to prevent inconsistent ruling on class certification. The Panel also considers whether centralization of the actions will eliminate duplicate discovery.

Updated: August 7, 2019