MasterCard today asked the U.S. Supreme Court to review last fall’s split decision by the U.S. Second Circuit Court of Appeals for the Second Circuit, upholding a grant of class certification in an antitrust suit against MasterCard and Visa. At a time when the growing number of massive class action suits is attracting considerable attention, we hope that the court will determine that this case should be reviewed. It provides an excellent opportunity to clarify the standards under which classes are certified which would serve to prevent needless and unfair class action cases in the future.
In the filing, we note that that class actions have been the single most important development in civil litigation in the past 35 years. They touch virtually every area of law from antitrust and securities to employment, civil rights and environmental damage actions. Frequently, they involve issues of enormous potential economic or social import, often calling into question the structure or operation of entire businesses or industries. There are thousands of class action suits pending, and more than 3000 additional class actions are filed in federal district court every year.
In the antitrust lawsuit against MasterCard and Visa, we believe the Second Circuit Court, in upholding the District Court’s class certification, did not consider two fundamental issues that are critical to class certification -- whether the case can be manageably tried as a class action and whether common issues predominate among the four million merchants now in the class. In the dissenting opinion, Judge Jacobs, the senior judge on the Second Circuit panel, argued that the Court was obligated to look at these issues. By not doing so, and upholding class certification, its decision served to benefit plaintiff’s counsel, as opposed to the plaintiffs.
If it accepts the petition, any decision by the Supreme Court would in no way relate to the merits of the case, which we believe is without merit.