What is Superiority?

April 1, 2010 Published Work
The Antitrust Source


The Antitrust Source
, April 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Consumer protection and antitrust attorneys seeking to prevent class certifications have three powerful, but underused, defenses upon which they can rely: a completed, a pending, or an anticipated government investigation or lawsuit (collectively, government action). In certain circumstances, these potential defenses could result in denial of a class certification motion, as a court may find that due to the government action, a class action lawsuit is not superior to other available methods for fairly and efficiently adjudicating the controversy."1 While this argument has been periodically addressed in courts across the country over the last four decades, given the current prevalence of private class action lawsuits "following" investigations by federal, state, and local enforcement agencies, surprisingly few cases directly address this issue, let alone offer any substantive analysis.

Some courts and commentators have noted the importance of completed, pending or potential government action to the determination of whether to certify a class. For example, one court has explained that a trial judge cannot simply "ignore the existence of an Attorney General investigation into defendant's conduct]."2 And, a former Deputy Director of the Bureau of Competition at the Federal Trade Commission has made a "modest proposal" that "courts considering the certification of a class under Federal Rules of Civil Procedure Rule 23, or its state law equivalents . . . analyze carefully the full implications of a pending or completed government enforcement action."3

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