Rule 23(b)(3) of the Federal Rules of Civil Procedure has been the basic mechanism for antitrust classes to obtain monetary damages. This is because antitrust violations usually meet the requirement of issues predominantly common to all class members. For more than a decade now, however, courts have struggled to define a plaintiff’s burden to establish injury to class members when seeking class certification. Historical hurdles to rule 23(b)(3) class certification Typically, antitrust defendants tend to focus much of their fire against class certification on arguing that questions of impact do not predominate across the class, as required by Rule 23(b)(3), because more than a de minimis number of putative class members assertedly have not been injured by the antitrust violation at
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The US Court of Appeals for the Ninth Circuit, sitting en banc, declares that a class can be certified without considering whether there are more than a de minimis number of uninjured class members (Olean Wholesale Grocery / Bumble Bee Foods)
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