On October 15, 2018, the U.S. Court of Appeals for the First Circuit overturned certification of a near-nationwide class action involving antitrust claims against a drug manufacturer. The decision was a major victory for WLF, which filed a brief arguing that class certification was improper because many members of the class were not injured by the defendant’s alleged wrongdoing—yet the plaintiffs did not demonstrate a method of separating the injured from the uninjured by means of common proof. The appeals court agreed, holding that the plaintiffs failed to demonstrate the requisite “predominance” of common issues of fact—because whether class members were injured by the alleged misconduct would need to be determined on an individualized basis. The court held that when, as here, more than a negligible number of class members were not injured by the alleged misconduct, an antitrust defendant is entitled to challenge every individual plaintiff on the issue of liability.
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