USA Law and Practice Contributed by: Robert Houck, William Lavery, Joseph Ostoyich and Leigh Oliver, Clifford Chance US
unlawful” under the antitrust laws (ie, higher prices to consumers) ( Gatt Communications v PMC Associates , 711 F 3d 68 [2d Cir 2013]). Plaintiffs must also establish that they are “efficient enforcers of the antitrust laws”, an inquiry that assess - es (among other things) the “directness” of the link between the asserted conduct and injury, and the existence of other “more direct” victims ( Associated General Contractors of California v California State Council of Carpenters , 459 US 519 [1983]). These elements are not part of the government’s burden in proving an antitrust violation. 4.4 Class Certification Class-certification review involves a “rigorous analy - sis” that “will frequently entail overlap with the merits of the plaintiff’s underlying claim” ( Comcast v Behrend , 569 US 27, 34 [2013]). To begin with, a plaintiff must affirmatively demonstrate that: • the class is so “numerous” that simple “joinder” of each class member’s individual complaints into a single litigation would be “impracticable”; • the class members present questions of law or fact in “common” with one another (ie, that they have suffered the same injury); • the lead plaintiff’s claims are “typical” of those of the class; and • the lead plaintiff will “fairly and adequately protect the interests of the class” (Fed R Civ P 23[a]). In addition to those “prerequisites”, a plaintiff must also establish that the putative class meets one of several enumerated bases for certification. Most anti - trust class actions seek to proceed on the showing that both common questions of law or fact “predomi - nate” over questions affecting individual members and a class action is “superior” to alternative methods of “fairly and efficiently adjudicating the controversy” (Fed R Civ P 23[b][3]). 5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law In addition to the venue requirements of the Clayton Act (see 2.2 Courts ), plaintiffs must establish that both
the defendant(s) and the conduct complained of are subject to the jurisdiction of the US courts. These requirements include both personal and subject mat - ter jurisdiction. Personal Jurisdiction Personal jurisdiction assesses the court’s power to hear cases against particular defendants. As a matter of constitutional due process, the federal courts can only impose liability on defendants that have sufficient “minimum contacts” with the forum state. Depend - ing on the strength of a defendant’s forum contacts, personal jurisdiction can be general (all-purpose) or specific (conduct-linked). For corporations, in all but the most “exceptional” cases, general jurisdiction will exist only if the defendant is headquartered or incor - porated in the forum ( Daimler v Bauman , 571 US 117 [2014]). Specific jurisdiction, which is narrower, is appropriate only for claims that “arise out of or relate to” a foreign defendant’s own purposeful contacts with the forum itself (and not just contacts with parties that reside in the forum) ( Walden v Fiore , 571 US 277 [2014]). Plain - tiffs must also have suffered an injury in the forum, although injury alone is not enough ( Bristol-Myers Squibb v Superior Court of California, San Francisco County , 582 US 255 [2017]). The Supreme Court has recently reiterated that specific jurisdiction requires a “strong relationship among the defendant, the forum and the litigation” ( Ford Motor Company v Montana Eighth Judicial District Court , 141 S Ct 1017 [2021]). Subject Matter Jurisdiction By contrast, subject matter jurisdiction is the power of the court to hear a given type of claim. In the anti - trust context, as courts and litigants grapple with the practical realities of increasingly global supply chains and cross-border finance, this question is frequently considered in terms of the territorial limitations applied to the Sherman Act’s bar on conspiracies that restrain trade. The US Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) limits the territorial reach of US antitrust law to domestic or import commerce, and places foreign or export conduct beyond the reach of US courts unless that conduct has a “direct, substan - tial and reasonably foreseeable effect” on US com -
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