In an antitrust price-fixing case, the court held that: 1) the district court must be sure, based on available evidence, that all Rule 23 requirements have actually been met at the present time, 2) the court must resolve all factual disputes bearing on certification, even if they overlap with the merits, and 3) this rigorous analysis extends to evaluation of expert testimony offered by either party. The result is a tightening of certification standards, similar to that seen in other circuits. In re Hydrogen Peroxide Antitrust Litig., --- F.3d ----, 2008 WL 5411562 (3d Cir. Dec. 30, 2008) (No. 07-1689).

The case concerns an alleged priced fixing conspiracy in the market for hydrogen peroxide. Defendants appealed certification.

This decision bears some resemblance to recent decisions in other circuits tightening the application of FCRP 23, e.g., In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 33 n.3 (2d Cir. 2006); Dukes v. Wal-Mart Stores, Inc., 509 F.3d 1168 (9th Cir. 2007), en banc petition pending. Here, the Third Circuit panel purported to clear up any possible confusion between circuit precedents and the Supreme Court's demand of "rigorous analysis" of Rule 23 motions, Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982).

The panel said that "the decision to certify a class calls for findings by the court, not merely a `threshold showing' by a party, that each requirement of Rule 23 is met." These findings must be made by a preponderance of the evidence, and assurances by a party that it will meet the requirements is not enough. Moreover, the district court must resolve all relevant fact issues even if they overlap with the merits of the case. The court noted, however,  that a factual finding made for purposes of Rule 23 does not bind the fact-finder with respect to later decisions on the merits.

Finally, the court held that this rigorous factual analysis must extend to any expert testimony offered by any party in relation to certification. Relevant expert testimony much be evaluated and made the subject of findings, even if this requires credibility determinations.

The panel did not say that the class in this case should not have been certified; rather, it held that the district court had applied the wrong standard, based on misinterpretation of circuit precedent. The panel therefore vacated the class certification order and remanded for a new ruling by the district court.