Is an indirect purchaser antitrust class properly certified under Federal Rule of Civil Procedure 23(b)(3) where it includes at least 55,000 concededly uninjured members, corresponding to 5.7% of the entire class? The Eastern District of New York, in In re Restasis (Cyclosporine Ophthalmic Emulsion) Antitrust Litigation, No. 18-MD-2819 (NG) (LB) (E.D.N.Y. May 5, 2020), recently answered yes, certifying a class of indirect purchasers of Restasis, a brand dry-eye disease medication.

Defendant Allergan, Inc. appealed this decision under Rule 23(f) asking the U.S. Court of Appeals for the Second Circuit to address the recurring class-action issue regarding the impact of uninjured class members on the propriety of class certification, and to consider to what extent there is a de minimis exception that allows class certification where there are uninjured members. These are issues not yet addressed directly by the Second Circuit, and whether it aligns with recent decisions from other circuits or not may have important implications for antitrust class actions.

Requirements for Certification

In addition to satisfying the four requirements under Rule 23(a)—numerosity, commonality, typicality, and adequacy of representation—antitrust class action plaintiffs seeking damages must meet Rule 23(b)(3)'s additional requirements of (1) predominance (i.e., "that the questions of law or fact common to class members predominate over any questions affecting only individual members"), and (2) superiority (i.e., "that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy"). To show predominance, plaintiffs must establish that common questions will predominate at trial over individual questions in proving liability. See Med. Soc'y of the State of N.Y. v. UnitedHealth Grp. Inc., 332 F.R.D. 138, 158 (S.D.N.Y. 2019).