1 Benjamin S. DuVal, Jr., The Class Action as an Antitrust Enforcement Device: The Chicago Experience (pts. I and II), 1976 A.B.F. Res. J. 1021, 1273.CrossRefGoogle Scholar

2 The greater burdensomeness of class actions was found to be only partially attributable to the time expended in implementing class action procedures. More important factors were the tendency in class suits for the number of parties and attorneys to be larger, the discovery more extensive, and defendants' potential liability greater.Google Scholar

3 These figures exclude cases transferred out of the district and cases in which no damages were sought. Cases were treated as clustered if they were assigned to a single judge as related cases, irrespective of whether they had been formally consolidated. An “entity” is a cluster of cases or a group of cases within a cluster that behaved in much the same manner as a single multi-party case. For a more complete explanation of these concepts and of how they were applied, see DuVal (I), supra note 1, at 1036–38.Google Scholar

4 Various techniques were used to assess the probable impact of the pending cases on comparative burden, but none of these techniques was wholly satisfactory. See id. at 1044–46.Google Scholar

5 The results of this additional study will be reported at a later time.Google Scholar

6 For an explanation of these indices of burden see DuVal (I), supra note 1, at 1039–41.Google Scholar

7 Schaefer v. First National Bank of Lincolnwood, 509 F.2d 1287, 1299–1300 (7th Cir. 1975), cert. denied, 425 U.S. 943 (1976).Google Scholar

8 Count 1 of the complaint alleged that defendants, in violation of the Civil Rights Act of 1866 and the thirteenth and fourteenth amendments, had exploited a system of de facto housing segregation that existed in Chicago by obtaining purchase money mortgages based on false and excessive appraisals of used residential property and had fostered the de facto segregation on which the contracts depended by engaging in “blockbusting.” The complaint also contained allegations of violations of the state antitrust laws, of the federal securities laws, of unconscionability, fraud, usury, and breach of implied warranties. The allegations of securities law violations, unconscionability, fraud, usury, and breach of implied warranties were dismissed early in the case so that by the time the case went to trial only the civil rights offenses remained. 300 F. Supp. 210 (N.D. Ill. 1969), aff'd on other grounds, 420 F.2d 1191 (7th Cir. 1970).Google Scholar

9 Time was expended in researching, briefing, and arguing defendants' unsuccessful motion to dismiss the antitrust claims. It can be assumed as well that some additional discovery was under-taken as a result of the antitrust claim.Google Scholar

10 These were the only two class actions in which data collected in the file search indicated that the antitrust claims had been dismissed prior to the final disposition of the case. The inter-views with class action attorneys did suggest that the antitrust claims were of secondary importance in two other class actions. The exclusion of those two cases would not substantially affect the mean number of docket entries, however. In general, no effort has been made to exclude cases in which the antitrust claims were secondary in view of the difficulty of making such a determination in the absence of interview data. As far as the data collected in the file search reveal, in only one nonclass case with substantially more docket entries than the average nonclass case were the antitrust claims dismissed prior to the final disposition of the case. The exclusion of that case would have virtually no impact on the mean number of docket entries.Google Scholar

11 Applying the measure described in DuVal (I), supra note 1, at 1096–97. The figures on which these percentages were computed exclude Schaefer and Contract Buyers. If Schaefer and Contract Buyers are included the percentages become for unclustered cases 85 percent, 55 percent, and 47 percent and for unclustered cases and entities combined (excluding Childrens Books and Auto Fleet) 91–116 percent, 61–79 percent, and 54 percent. With the addition of Auto Fleet and Children Books the increase in docket entries is 111–52 percent.Google Scholar

12 In deriving these percentages each entity that contained a class action was deemed a class entity. The docket entries and discovery entries in the case with the largest number of entries in the entity and the total number of entries for all cases in the entity were used as minima and maxima. Note: Childrens Books and Auto Fleet cases are excluded. Both in this table and in tables 3 and 4 the cells contain too few cases for application of significance tests to be appropriate. ^aPercentages are of terminated cases.Google Scholar

13 The difference (using Fisher's exact test) between 8 of 151 nonclass cases and 0 of 27 class actions is not statistically significant. Note: Cases in the Children Books and Auto Fleet clusters have been excluded from the totals for clustered cases. Entities in these clusters, however, have been included in reporting decisions in entities. ^aPercentages are of terminated cases and entities. ^bIn one entity one case was disposed of by summary judgment and another was involuntarily dismissed. Note: Cases in the Children Books and Auto Fleet clusters have been excluded from the totals for clustered cases. Entities in these clusters, however, have been included in reporting decisions in entities. ^aPercentages are of terminated cases and entities. ^bIn one entity one case was disposed of by involuntary dismissal and the remainder by voluntary dismissal. In one entity one case was disposed of by voluntary dismissal and the other by trial to the court. ^cIn one entity one case was disposed of by summary judgment, one by involuntary dismissal, and the remainder by voluntary dismissal.Google Scholar

14 In one of these cases (Contract Buyers) the antitrust claims had been dismissed before trial.Google Scholar

15 On December 22, 1978, summary judgment was entered in favor of two defendants and the case dismissed as to them and partial summary judgment entered in favor of a third defendant. The failure of the court to dismiss the action in its entirety appears due solely to the failure of the remaining defendants to move for summary judgment.Google Scholar

16 The length of this case (which was filed in 1970) resulted from the appeal of an interlocutory order to the Supreme Court and from subsequent proceedings before the Commodities Futures Commission.Google Scholar

17 The four former franchisees were offered three options: (a) $250 in cash; (b) continuing the suit with new attorneys; and (c) accepting a dismissal without prejudice conditioned on defendant's stipulation that the pendency of “this action would not [sic] toll the statute of limitations (so that if a class were later determined, these plaintiffs could become part of the class without having the statute of limitations as a bar).” Report of Querrey, Harrow Gualanick & Kennedy, Ltd., on Settlement for Its Clients 5–6 (Jan. 24, 1975), in Herzog v. Convenient Food Mart, 70 Civ. 499 (N.D. III.). All four chose to accept the $250 payment.Google Scholar

18 See Halverson v. Convenient Food Mart, Inc., 458 F.2d 927 (7th Cir. 1972); Report of Querrey et al., supra note 17.Google Scholar

19 Plaintiffs' attorneys had received no fees for services from their clients but had received $3,000 from the franchisees' association for costs during the first three years of the litigation.Google Scholar

20 Great Atlantic & Pacific Tea Co. v. FTC, ____ U.S. ____, 59 L. Ed. 2d 153 (Feb. 22, 1979).Google Scholar

21 On June 8, 1976, the court ordered that counsel be prepared to participate in settlement negotiations. On September 24, 1976, at a pretrial conference the case was continued to September 29 for a report on status. On September 27 the court on its own motion set a firm trial date of October 14, 1976. On September 29 the case was dismissed.Google Scholar

22 The court noted that plaintiff faced “substantial difficulties … in establishing a violation” and expressed “serious doubt” whether plaintiff could prove significant damages.Google Scholar

23 On April 28, 1978, the court gained summary judgment in favor of defendants as to certain claims, but ruled as to others that an evidentiary hearing was needed.Google Scholar

24 Schaefer v. First National Bank of Lincolnwood, although pending at the time of the prior file search (and still pending on June 30, 1978) has been excluded from the analysis of results. As an antitrust case Schaefer had been disposed of long before the previous file search by the dismissal of the antitrust allegations.Google Scholar

25 In two such cases the denial of class certification was based on the unwillingness of the plaintiff to bear the cost of providing individual notice. There is, of course, always the possibility in such a case that the stated unwillingness of the plaintiff to bear the cost of providing notice was produced by a settlement. In one of the cases this seems most improbable, however. Although the case was settled, the settlement was entered more than six months after the dismissal of the class allegations and afforded plaintiff's attorneys substantially less than their customary hourly rate. In the other case the circumstances do raise the possibility that the settlement (if there was one) may have been contemplated at the time the class allegations were stricken. After a substantial period of discovery limited to the class issues, the court on August 19, 1977, ordered plaintiff to move for class certification by September 15, 1977 (reset to September 21). On September 21 plaintiff's attorney stated that “our clients … have decided not to bear the costs of the preparation and distribution of the class notices in this case,” and the court ordered the class allegations stricken. Plaintiff's attorney raised the possibility of recasting the suit as a class action for injunctive relief so as to avoid the individual notice requirement, but the court expressed doubt as to the appropriateness of such a proceeding. Seven weeks later a voluntary dismissal was entered by stipulation of the parties.Google Scholar

26 In two of the cases defendants prevailed at trial (in one of these, Contract Buyers, the anti-trust claims had been dismissed before trial). The third case was still pending on June 30, 1978, but on December 22, 1978, summary judgment was entered in favor of two defendants and it now appears reasonably certain that defendants will ultimately prevail.Google Scholar

27 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). See also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978) (plaintiffs should ordinarily bear the expense of identifying class members if these expenses are substantial).Google Scholar

28 In addition, in one case pending at the time of the prior file search the court denied class certification invoking the individual coercion doctrine (see DuVal (II), supra note 1, at 1336–38), while in another instance the court denied class certification because the complaint charged illegal price discrimination, generally not suitable for class treatment. See DuVal (I), supra note 1, at 1090 n.91.Google Scholar

29 Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977).Google Scholar