USA Law and Practice Contributed by: Robert Houck, William Lavery, Leigh Oliver and Joseph Ostoyich, Clifford Chance LLP
• 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 - merce and that effect “gives rise to” a US antitrust claim (15 USC Section 6a). Whether the causal nexus between foreign conduct and domestic effect is sufficiently direct will depend on the facts and circumstances, including the struc - ture of the market and the relationships of the par - ties. Appeals courts presently disagree on whether the FTAIA’s directness prong requires that the US effect follow as the “immediate consequence” of the foreign antitrust conduct or whether the domestic effect must only bear a “reasonably proximate causal nexus” to that conduct (compare United States v Hui Hsiung , 778 F 3d 738 [9th Cir 2015] [“immediate conse - quence”] with Lotes v Hon Hai Precision Industries , 753 F 3d 395 [2d Cir 2014] [“reasonably proximate causal nexus”]). Nevertheless, however the test is expressed, the appeals courts generally appear to agree that the wholly foreign price fixing and sale of components included in goods sold to US consumers can have a direct effect on US commerce.
249 A NTITRUST LI T IGATI O N 2026
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