D.C. Circuit has yet to rule on level of scrutiny at class certification stage

The U.S. Supreme Court’s decision in Amchem Products Inc. v. Windsor, 521 U.S. 591 (1997), raised the standard for parties seeking settlement class certification by requiring proposed settlement classes to establish essentially the same Federal Rule of Civil Procedure 23 criteria as for ordinary class certification, especially the predominance factor of Rule 23(b)(3). In the years following the Amchem decision, the U.S. courts of appeals for the 1st, 2d, 4th, 5th, 7th, 8th and 9th circuits adopted standards requiring enhanced inquiry into the merits of some aspects of the plaintiffs’ case when ruling on class certification in antitrust cases. See, e.g., Miles v. Merrill Lynch & Co. (In re Initial Pub. Offering Sec. Litig.), 471 F.3d 24, 33, 41 (2d Cir. 2006); Gariety v. Grant Thornton LLP, 368 F.3d 356, 366 (4th Cir. 2004); Unger v. Amedisys Inc., 401 F.3d 316, 321-22 (5th Cir. 2005); Szabo v. Bridgeport Machs. Inc., 249 F.3d 672, 675-76 (7th Cir. 2001); Blades v. Monsanto Co., 400 F.3d 562 (8th Cir. 2005); Dukes v. Wal-Mart, 509 F.3d 1168, 1177 n.2 (9th Cir. 2007) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992)); see also In re New Motor Vehicles Canadian Antitrust Litig., 522 F.3d 6 (1st Cir. 2008), rev’d and remanded, 2010 WL 3269750 (D. Maine 2010). All but the 1st and 8th circuits further require that district courts make specific findings of fact for class certification.

The 3d and D.C. circuits were noticeable holdouts for some time. It was not until 2008, in In re Hydrogen Peroxide, 552 F.3d 305 (3d Cir. 2008), that the 3d Circuit raised the standard for class certification. District court decisions within the 3d Circuit in 2009 and 2010 indicate that lower federal courts will be following the standards of other circuits, and proposed classes will face tougher battles at certification hearings. See In re Insurance Brokerage Antitrust Litig., 579 F.3d 241 (3d Cir. 2009); Behrend v. Comcast Corp., 264 F.R.D. 150 (E.D. Pa. 2010); In re Plastics Additives Antitrust Litig., No. 03-CV-2038, 2010 U.S. Dist. Lexis 90135 (E.D. Pa. Aug. 31, 2010).