On December 8, 2022, the Ninth Circuit declined to review class-certification orders that contravened settled law. This decision was a disappointment for WLF, which together with the NAM and PhRMA, filed an amicus brief urging the court to hear the appeal. WLF’s brief argued that the district court’s clearly erroneous class certification orders improperly inflated the size and scope of the litigation. A named plaintiff alleging injury in a single state under that state’s laws lacks standing to sue on behalf of class members from thirty other states suing under those states’ laws. Yet the district court certified classes asserting claims in 31 states. What’s more, settled law makes clear that courts are not to certify classes based on the sales of products by the defendant’s arms-length competitors. Here, many class members who never bought products from the defendants should have been excluded from the class. Had those purchasers been excluded, the claims would not have met Rule 23’s numerosity requirement. The brief was drafted by Philip Goldberg and Andrew Trask of Shook, Hardy & Bacon LLP.


Amicus brief