Certification Criteria and Class Actions: Illustrating the role of 'Gate-Keeper" in competition law cases
Abstract
Certification serves as an important screening mechanism for opt-out class actions. In those cases in which the proposed class action is held by a judge not to be capable of certification, then that initial ‘gate-keeper’ process allows courts to dispose early of cases that could otherwise prove consumptive of judicial resources; it enables defendants to ‘see off’ what would otherwise tend to be expensive, time-consuming and problematical litigation; and it forces the representative claimant for a class to closely consider whether the collective grievance allegedly suffered by the class members is truly suited to the class actions process.
In its recent collective redress reform initiative, English law-makers considered certification to be an essential pillar of that jurisdiction’s class actions regime. Similarly, in the United States, Australia and Canada, a number of pre-requisites must be shown for the valid commencement of any collective action (or, more accurately in Australia’s case, given the absence of a formal certification stage, a number of factors can lead to a successful application there to have the action discontinued in class action form).
By reference to competition law cases launched as class actions in the common law jurisdictions of Australia and Canada, this article analyses how the screening mechanism of certification has been effective to curtail the number and scope of cases going forth as class actions in that sector. The experiences of these jurisdictions refutes the likelihood that, should an opt-out class actions regime be introduced into England and Wales (or anywhere else), there would be a floodgates of class actions going forth. The reality would seem to be just the opposite, if a carefully-drafted certification regime were to be implemented. To place this discussion in context, the article refers to the relevant certification factors that were proposed by English law-makers, and contrasts these to the (sometimes differently-worded) certification factors that have been implemented by the legislatures of Australia and Canada.
From this analytical study, it is instructive to see how and why competition law cases have, at times, struggled to meet class actions certification criteria. By reference to the particular ‘snapshot’ of alleged competition law infringements on a ‘mass scale’, the discussion is intended to flag the importance of certification per se, and the subtleties which pervade the drafting of particular certification criteria. These types of issues are of importance and topicality for any actual or proposed opt-out class actions regime.