Duane Morris Class Action Review - 2023 - Report - Page 52
retaliate against litigants was credible, and that past pharmaceutical industry antitrust
litigation had limited probative value in demonstrating whether the parties would opt out
of joinder in the instant suit.
Zetia shows that parties unprepared to address the practicability of joinder risk an
adverse class certification ruling, even after winning the motion initially.
E.
Rulings On Amending Class Certification Orders
Courts are granted broad discretion to determine class certification and whether or not
to revisit that certification before final judgment. Typically, reconsideration of an original
class ruling occurs as a result of changed or clarified circumstances. However, in 2020,
the Third Circuit ruled that “[p]laintiffs can succeed on a renewed motion
for class certification if they more clearly define their proposed class even if there has
been no change in the law and no new evidence produced.” Hargrove, et al. v. Sleepy's
LLC, 974 F.3d 467, 477 (3d Cir. 2020).
Hargrove acknowledged that district courts outside the Third Circuit are split on the
issue, but held that the language of Rule 23 does not implicate a stringent “motion for
reconsideration” standard for renewing a motion for class certification. Id. at 476.
The plaintiffs in Markson, et al. v. CRST International, Inc., 2022 U.S. Dist. LEXIS
92089 (C.D. Cal. Apr. 6, 2022), attempted to capitalize on the Third Circuit ruling in
Hargrove, citing the case in the plaintiff’s motion to modify the court’s order denying
certification of the antitrust class. Markson involved allegations that the defendant
transportation and logistics services businesses had conspired not to compete for one
another’s workers in order to suppress worker’s wages. The court was not persuaded,
and declined to follow the Third Circuit. Instead the court followed case law precedents
requiring the more stringent standard of changed circumstances or new evidence as a
basis for revisiting class certification.
Markson illustrates the importance of jurisdictional differences in class action
proceedings, and parties involved in antitrust class actions must be mindful of how
plaintiff classes are defined and whether tactical motions surrounding class certification
are likely to succeed.
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Duane Morris Class Action Review – 2023
