A couple of weeks ago, I criticized the Third Circuit’s decision in Sullivan v. DB Investments, Inc., which affirmed certification of a nationwide class of indirect purchasers and approved a class settlement that treated identically indirect purchasers who were entitled to pursue damages under state law and those who were not entitled to do so.
Dan Bushell at Florida Appellate Review offers a thoughtful commentary on the decision. Bushell contends that the “main take-away” of the decision is that “there is a real and significant difference between the standard that must be met to certify a settlement class from the standard for certifying a litigation class.”
I agree with Bushell that the best reading of the opinion is that its analysis of certification should be limited to settlement-only classes. Unfortunately, the Third Circuit could not say so explicitly because to do so would be inconsistent with Amchem, in which the Supreme Court stated that, apart from considerations of manageability, the requirements of Rule 23 “demand undiluted, even heightened, attention in the settlement context.”