Trask Follows Up on Predominance for Legal Opinion Letter

Shook Of Counsel Andrew Trask has written a follow-up to his January article for the Washington Legal Foundation's Legal Opinion Letter discussing a First Circuit decision on predominance in class certification determinations. Trask explains the D.C. Circuit's ruling in In re Rail Freight Fuel Surcharge Antitrust Litigation, which held that classes with confirmed numbers of noninjured members cannot be certified because individual questions will predominate over common issues.
Trask details the D.C. Circuit's ruling on the plaintiffs' regression model, which calculated "negative damages" for about one-eighth of the class members. "'Negative damages' as a result meant that a large part of the class either were simply not damaged at all, or somehow made money on the challenged transactions," he explains. "[T]he plaintiffs had shown no way to separate that 12.7 percent from the 87.3 percent of allegedly injured class members . . . [Because] the regression analysis establishing damages was 'essential' to the plaintiffs’ case, this meant they were out of luck."
"This case, combined with the First Circuit’s In re Asacol, shows a burgeoning trend against significant no-injury cases," Trask concludes. "There is a countervailing trend, however. Jurisdictions like the Ninth Circuit still allow no-injury cases by invoking different logic, pushing off the question of whether anyone has been injured as part of a 'merits' determination they refuse to engage in . . . However, the clear logic of In re Asacol and now In re Rail Freight Surcharge provides practitioners with powerful tools to fight no-injury cases at the certification stage."