Robin P. Sumner, a partner with Pepper Hamilton and a member of the Commercial Litigation Practice Group, was quoted in the September 28, 2016 Bloomberg BNA article, "New Class Size Criteria Get Mixed Reviews."
“I think there was a concern in the court about the potential for abuse of the class action mechanism where you have litigation driven by interests that on their face do not necessarily seem to be those of the class,” Robin P. Sumner, partner at Pepper Hamilton LLP in Philadelphia, told Bloomberg BNA. Sumner specializes in antitrust, securities and complex litigation.
Sumner said the court was troubled by the fact that three unnamed class members accounted for more than 97 percent of the drug purchases. “This case was proceeding really without any sort of say-so by them,” she said.
The Third Circuit’s new numerosity guidelines will only come into play in certain types of cases, Sumner and Steinman agreed.
It’s hard to imagine a numerosity challenge in a consumer class action with thousands of potential plaintiffs, Sumner said. But in other direct purchaser antitrust actions or Racketeer Influenced and Corrupt Organizations Act cases, for instance, it could provide defendants with some new ammunition.
Sumner and Steinman also agreed that the district court might decide on remand that the numerosity requirement is still satisfied in this case.
The district court could try to adapt its conclusions to the Third Circuit’s framework, Sumner said. But she thinks it will be an uphill battle.