Antitrust Class Certification: The Use of Statistical and Representative Evidence to Establish Predominance of Common Proof
Volume 93, No. 3, Spring 2021
By Roberta D. Liebenberg and Ellen Meriwether [PDF]

This Essay discusses the Supreme Court’s decision in Tyson Foods, Inc. v. Bouaphakeo, a class action under the Fair Labor Standards Act (FLSA), in which the Court upheld the plaintiffs’ use of statistical evidence to satisfy the predominance requirement of Federal Rule of Civil Procedure 23(b)(3) and to prove damages to the class at trial.

This Essay demonstrates that the Supreme Court’s reasoning in Tyson Foods applies with equal force outside of the FLSA context and is particularly well suited to antitrust cases. It focuses on why properly specified regression analyses, which calculate industry-wide overcharges and detect the probability that the overcharges were widespread, are relevant and probative in antitrust actions. Regression analyses can also be used to measure aggregate damages sustained by the class. These analyses and other statistical evidence can help courts and juries reach more well-informed decisions, and the allowance of such evidence promotes the strong public policy in favor of enforcement of the antitrust laws.