CA1: class certification reversed for now

In Re New Motor Vehicles Canadian Export Antitrust Litigation, Nos. 07-2257, 07-2258 & 07-2259 a class certification, but says that the District Court can try again on a more complete record.  It is fairly complicated, and antitrust litigation bores me, but it involves claims that the car companies unfairly prevented people from taking advantage of differing exchange rates to arbitrage cars.

By now, you should have read the case.  Especially if you practice “antitrust” law.  There is absolutely no excuse for waiting until after the weekend passes to read a case that came out on Friday.  If, for some reason, you “practice” in this field and didn’t read the case, turn in your bar card immediately.

Anyway, for everyone else, here is what you need to take away from it.  The case is a good overview of the law in the area, but if you were a real lawyer you would have read it by now

• because the US dollar has lost its value, plaintiffs no longer have standing to sue under section 16 of the Clayton Act.

• [For purposes of FRCP 23]...

Under this circuit's approach, in our view, a searching inquiry is in order where there are not only disputed basic facts, but also a novel theory of legally cognizable injury....
plaintiffs needed to present "basic facts" that the fraud-on-the-market presumption could be invoked, even though its actual applicability was to be resolved at trial. PolyMedica, 432 F.3d at 19 [our coverage here]. Our review of the district court's determination of whether or not the fraud-on-the-market presumption could be invoked was based not on the level of detail in the district court's explanation, but on "whether the evidence supports its determination to apply the presumption." Xcelera, 430 F.3d at 512 [our coverage here]. In Xcelera, for example, the district court actively evaluated the testimony of two competing experts and preliminarily credited the plaintiffs' expert, a determination this court upheld -- after surveying the expert testimony ourselves -- on clear error review. Id. at 512-16.

Anyway, I don’t think it would come as any surprise that the First Circuit would limit the role of a jury where some law firm can claim that “big money” is at stake.  Whatever.  Strangely, the First has no problem affirming any and all criminal convictions over “sufficiency” challenges, allowing the jury to find all sorts of inferences.  Torrella dissents on this point.