The United States Experience with Competition Class Action Certification: A Comment

AuthorSpencer Weber Waller
Spencer Weber Waller*
The symposium hosted by the University of Western Ontario on 1 April
2005 was a wonderful opportunity to think comparatively about the
issues involved in the certification of class actions and to reflect on the
American experience in this area. It was also an opportunity to consider
what lessons Americans can provide to Canada and other jurisdictions
implementing forms of aggregate litigation in competition cases, and
what lessons Americans can learn from the experience of other jurisdic-
tions starting fresh down this path. Professors Robert Klonoff and William
Page have written two excellent articles which are broadly consistent in
their similar explicit and implicit suggestions about taking the question
of class certification seriously. Both articles present road maps for the
conscientious judge in these types of cases and are to be commended for
their efforts to bring clarity and honesty to these critical decisions, these
moments of truth in the litigation process. My aim in this comment is to
explore further their suggestions, to look beyond the procedural aspects
of class certification, and to reflect on the larger substantive issues of
antitrust law lying just below their surface in both the United States
and Canada, namely, whether and how to permit indirect purchasers to
recover in price-fixing cases.
* Associate Dean for Faculty Research, Professor, and Director of the Institute for
Consumer Antitrust Studies, Loyola University Chicago School of Law. Thanks
to Anthony Sebok and Michael Kaufman for their helpful comments on an
earlier version of this comment and to the organizers of the symposium for a
splendid day at Western Law.

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