The U.S. Second Circuit Court of Appeals, in an antitrust case, rejected the defendants’ argument that plaintiffs who had been assigned claims lacked standing as they had suffered no ‘injury’ and were inadequate representatives because they were not technically ‘members’ of the class. Addressing the policy considerations, the court observes that “irrespective of the extent to which the named representatives’ interests are or are not in fact antagonistic to the interests of other members of the class in this particular case – a matter on which it is premature for us to express a view – we do not think that they are necessarily antagonistic solely because they are assignees of Western Pacific’s and EqualNet’s interests in the class action that they are pursuing. The unhappy consequences of permitting ‘trafficking’ (to use the defendants’ characterization) in causes of action, thereby permitting one person who has suffered no injury to pursue actions in the stead of another solely to maximize his or her personal monetary return, are not fanciful.” But they are not categorically forbidden. “The defendants’ arguments and the district court’s conclusions as to the transferability of the ability to represent a class fail to account for the countervailing value of allowing an assignee to stand in the shoes of the assignor before a court. This case might be termed a ‘textbook example’ of that value in the bankruptcy context.” Further, the court reversed the district court’s finding that individual issues predominated over common issues. “If the plaintiffs’ single formula can be employed to make a valid comparison between the but-for fee and the actual fee paid, then it seems to us that the injury-in-fact question is common to the class. Otherwise, it poses individual ones. The district court did not determine which expert is correct. We leave this question for it to resolve on remand.” See Cordes & Co. v. A.G. Edwards, No.06-2143, 2007 WL 2594477 (2d Cir. Sept. 11, 2007).
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