In December 2008, Buchanan Ingersoll & Rooney attorneys Howard D. Scher and Thomas P. Manning obtained a significant victory for clients Arkema Inc. and Arkema France, as well as all antitrust defendants and class action defendants generally. More than one year later, the case of In re Hydrogen Peroxide Antitrust Litigation is being considered one of the "blockbuster" decisions over the past 10 years in a January 13, 2010, Law360 article titled, "Antitrust Cases Of The Decade."
As explained in the article, "Antitrust practitioners point to a 2008 decision by the U.S. Court of Appeals for the Third Circuit as a key case that redefined the standard of proof plaintiffs had to meet in order to clear the class certification hurdle. … The Hydrogen Peroxide Antitrust Litigation, brought by direct and indirect purchasers of hydrogen peroxide in the wake of criminal investigations by regulators into an alleged hydrogen peroxide cartel, spawned class certification battles and gave the Third Circuit the opportunity to put its own, definitive stamp on the question of class certification. … Under the standard described by the court, plaintiffs must prove each requirement for class certification. District courts in the Third Circuit should also resolve all disputes over class certification requirements and examine expert testimony presented by both sides."
One antitrust expert weighed in on the decision saying, "There you have a circuit that was somewhat more friendly to plaintiffs on class certification issues taking a deliberate and marked turn towards the defense side, if you will. The decision requires courts in that circuit at the class certification stage not only not to presume classwide impact, but actually to dig into the merits to some extent, to resolve disputed issues, and to determine how likely it is that the plaintiffs can put on common evidence at trial to show classwide impact. … That to me suggested a tipping point in terms of the level of scrutiny at the stage of class certification. And I think that may be a harbinger of other circuits following their lead."
The article went on to note, "In its decision, the Third Circuit did join a growing number of appeals courts that have addressed the requirements for class certification, deciding to ramp up the type of scrutiny required. … The Third Circuit ruling has the potential to dramatically alter litigation strategies used by plaintiffs and defendants in class certification fights, and inspire further appeals courts to join the fray."
"What are the cases that are really going to affect subsequent cases? I think Hydrogen Peroxide is in that category," said a professor at Cornell Law School. "If that strict scrutiny of class action certification takes hold, it's really going to make a difference."