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For years, defendants in antitrust suits have argued that a class may not be certified if it includes members who have suffered no demonstrable injury. Recent developments suggest that argument may be gaining traction.

In In re Rail Freight Fuel Surcharge Antitrust Litigation, the U.S. Court of Appeals for the D.C. Circuit in 2019 addressed allegations that four railroad companies, who collectively control almost 90% of the rail freight traffic in the U.S., conspired to fix fuel prices in violation of antitrust laws. As in any complex antitrust class action, the plaintiffs proposed to show damages via statistical modeling. Their model reflected that approximately 2,000 customers, or about 12% of the class, were actually undercharged by the pricing scheme. In other words, they were not injured.

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