In re Asacol: First Circuit Sharply Limits Certification of Classes Containing Uninjured Members

October 29, 2018

A recent decision by the U.S. Court of Appeals for the First Circuit, In re Asacol Antitrust Litig., No. 18-1065, 2018 U.S. App. LEXIS 28920, 2018 WL 4958856 (Oct. 15, 2018), is the latest word in the debate about certifying class actions where some class members are clearly uninjured. In Asacol, the First Circuit changed its position, holding that Rule 23’s “predominance” requirement generally bars certification of a class that includes uninjured members. Especially if other circuits follow suit, many types of class actions—including consumer class-actions—will be harder to certify.

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