"Hydrogen Peroxide: The Crest of the Wave"

In the article, "Hydrogen Peroxide: The Crest of the Wave," published in the May 2009 issue of The Online Magazine for Global Competition Policy, Ken Ewing discusses the decision made on January 16, 2009 in the Court of Appeals for the Third Circuit. The Third Circuit amended decision in In re Hydrogen Peroxide Antitrust Litigation, resoundingly confirming that it requires rigorous assessment of whether a federal court claim qualifies for treatment as a class action under Rule 23 of the Federal Rules of Civil Procedure. That rule permits members of a class to sue (or be sued) as class representatives if, in addition to certain preconditions required for all class actions by Rule 23(a), the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. After summarizing the majority rule as reflected in Hydrogen Peroxide, this article offers some practical observations, particularly in light of a very recent district court decision attempting to implement the majority rule in a case very similar to Hydrogen Peroxide.