Amicus Brief: In re: Niaspan Antitrust Litigation (en banc)
COSAL filed a brief in support of rehearing In Re: Niaspan Antitrust Litigation en banc after the Panel affirmed the denial of class certification. Two inaccurate assumptions backed their decision: the Third Circuit’s freestanding administrative feasibility requirement was consistent with Rule 23 and the Panel’s approach regarding ascertainability was consistent with that of other circuits. The Third Circuit said that in order to prove the class was ascertainable, plaintiffs had to fulfill an administrative feasibility requirement. However, this requirement is not a part of the Rule 23 text. COSAL said that the Panel did not correctly review other circuits’ decisions about ascertainability. Most other courts do not abide by this same, high ascertaibility standard that requires demonstrating administrative feasibility in order to certify a class. Having such a high bar in order to be acceptable would make it harder for low-value class actions to exist. As such, COSAL concluded that the Third Circuit should get rid of their freestanding administrative feasibility requirement. Mathew Perez and Gary Smith are the authors of brief.
