Trask Explains First Circuit Decision on Predominance

Shook Of Counsel Andrew Trask has authored an article for the Washington Legal Foundation's Legal Opinion Letter detailing a First Circuit decision on predominance in class certification determinations. "Class actions are famous for turning low-value individual claims into high-stakes aggregated litigation," Trask explains. "But one under-discussed side effect of that aggregation is its tendency to obscure the fact that in many cases, much of the class simply has not been injured. Not 'injured by only a few pennies,' but not injured at all."
The lower court in the case In re Asacol Antitrust Litigation granted class certification despite noting that 10 percent of the class was uninjured. The First Circuit disagreed with this determination, finding too many issues with the proposed affidavits that would purportedly distinguish between the injured and uninjured. "[P]erhaps most importantly," Trask notes, "the panel stressed that it could find no principled reason to certify a class where the court knew ten percent of the members were uninjured, but not then certify a class where fifty-one percent of the class (or, to be more extreme, ninety percent) were uninjured."
"The Asacol opinion is important for its stressing rigorous analysis over judicial intuition when evaluating the predominance inquiry," Trask concludes. "But it also serves as an important reminder to those litigating large, complex class actions to assert their substantive rights to a full defense, even in the face of a hostile court or adverse precedent."