Yesterday, Chief Justice Bauman released public reasons certifying the Visa/MasterCard price-fixing class actions. Our full update on his decision is available here. But the critical takeaways from his decision are as follows:

  1. Plaintiffs can't link non-statutory claims (like tort and restitutionary claims) to breaches of the Competition Act. When the Competition Act makes conduct, such as price-fixing, unlawful, plaintiffs may only pursue remedies for that unlawful conduct under the statutory cause of action in the Competition Act. They cannot also argue that those unlawful acts found causes of action for parasitic tort claims like unlawful means conspiracy, unjust enrichment and waiver of tort.
  2. Minimal scrutiny of expert evidence does not mean no scrutiny. Rather, certification judges may consider evidence from defendants' experts and evaluate whether they have exposed any fatal flaws in the plaintiff's expert evidence that have gone unanswered. But so long as plaintiff's expert answers those criticisms, plaintiffs will likely meet the "some basis in fact" test for commonality of loss-based issues.
  3. This decision continues the trend in which the courts appear determined to lower the bar to certification, avoid any assessment of the merits at the certification stage, and push class actions toward a determination on the merits. As a result, tenuous claims may face more motions for summary judgment on the heels of certification.

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