The united states experience with competition class action certification: a comment

• Author: Spencer Weber Waller
• Profession: Associate Dean for Faculty Research, Professor, and Director of the Institute for Consumer Antitrust Studies, Loyola University Chicago School of Law
• Pages: 209-217

THE

UNITED

STATES

EXPERIENCE

WITH

COMPETITION

CLASS

ACTION

CERTIFICATION:

A

COMMENT

Spencer

Weber

Waller*

A.

INTRODUCTION

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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