dissenting.
I respectfully dissent from the majority opinion’s holding that a district court order, which certifies a class and adopts a bifurcated trial of a private civil antitrust action for treble damages under 15 U.S.C. § 15, does not qualify under 28 U.S.C. § 1292(b). My dissent is based on the district court’s failure to make findings or show consideration of these factors,1 among others:
(a) that the liability aspect of the trial required a decision not only of violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, but also determination under 15 U.S.C. § 15 of the fact of damage2 (an element which would give rise to problems in proving the latter item on a class basis where the class consists of “potentially 300,000 claimants” located in *869all 50 states, Puerto Rico, Guam, and the Virgin Islands);
(b) that there would be a substantial difference in the quantum and character of liability proof under § 4 of the Clayton Act, 15 U.S.C. § 15, if the plaintiffs included all the above 300,000 individuals alleged to comprise the class, rather than only the named plaintiffs;
(c) that determination of liability itself under § 1 of the Sherman Act might also vary as to each class member, depending upon whether the particular dealer-defendant participated in the conspiracy, so that inquiry is required into whether the common questions predominate over the individual questions making a class action superior under F.R.Civ.P. 23(b)(3);
(d) that, on this record, there would appear to be no theoretical or practical formula or method to aid in the computation of damages sustained by different individuals, potentially requiring each class member to produce voluminous documentary evidence of his transactions in order to secure judgment;
(e) that, in view of the above, there is a question as to whether the named plaintiffs are typical as required by F.R.Civ.P. 23(a)(3);3
(f) that, if more than one class is necessary, the named plaintiffs might not adequately represent many members of the group of 300,000 persons treated as members of various classes and subclasses by the district court, see F.R.Civ.P. 23(d)(4); and
(g) that class suits have an in terrorem effect in forcing settlement (cf. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 740-42, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975)).
This court has consistently recognized that if the district court “has not properly identified the issues and not properly evaluated which are common, the [district court order] is not entitled to such deference.” Katz v. Carte Blanche Corporation, 496 F.2d 747, 756-57 (3d Cir. 1974), and cases there cited,4 where Judge Gibbons also quoted Professor Moore as follows (at 757):
“ ‘In determining whether an action brought as a class action is to be so maintained the trial court should carefully apply the criteria, set forth in Rule 23 1 ., to the facts in the case; and if it fails to do so its determination is subject to reversal by the appellate court when the issue is properly before the latter court.’ ”
I agree with part I of Judge Gibbons’ opinion.5 As to part II, I do not believe that class action treatment is permissible on this record, where a “§ 4 damage action charging price fixing” is involved (see page 877 of Judge Gibbons’ opinion), although I agree with Judge Gibbons that the Seventh Amendment is no bar to a bifurcation of the trial on this case. In view of Bruszew-ski v. United States, 181 F.2d 419 (3d Cir. 1950), a bifurcated trial of the § 1 Sherman Act claim apparently can be more appropriately tried in a test action brought by the named plaintiffs. See Katz v. Carte Blanche Corporation, 496 F.2d 747, 759-61 (3d Cir. 1974) (en banc).
I would vacate the district court order and remand for district court (1) consideration of the factors mentioned above in light of the antitrust issues set forth in Judge Gibbons’ opinion, and (2) appropriate findings and conclusions after such consideration.
. The district court could not comply with the F.R.Civ.P. 23(b)(3) requirement that it exercise an “informed judgment” as to the "superiority” of class treatment without considering these factors. See Katz v. Carte Blanche Corporation, 496 F.2d 747, 756 (3d Cir. 1974). I believe that findings of the type made by the district court in Windham v. American Brands, Inc., 68 F.R.D. 641 (D.S.C.1975), appeal pending en banc, 539 F.2d 1016 (4th Cir. 1976) were required in order to certify the class in this case. See pages 875-877 of the dissenting opinion of Judge Gibbons and authorities there cited, including § 4 of the Clayton Act, 15 U.S.C. § 15.
. See 15 U.S.C. § 15; Pitchford v. Pepi, Inc., 531 F.2d 92, 98-99, 104-05 (3d Cir. 1976); Deaktor v. Fox Grocery Co., 475 F.2d 1112, 1116-17 (3d Cir. 1973); and cases in note 29 of Judge Gibbons’ opinion. As noted by Judge Gibbons at pages 877-878 of his opinion, the Fifth and Ninth Circuits have ruled that class certifications may be improper in cases brought under § 4 of the Clayton Act, 15 U.S.C. § 15. See Shumate & Co., Inc. v. National Association of Securities Dealers, Inc., 509 F.2d 147, 155 (5th Cir. 1975), and In re Hotel Telephone Charges, 500 F.2d 86, 89-90 (9th Cir. 1974).
. The district court apparently accepted the unlikely theory of a single “co-conspirator”— the National Dealer Council — and did not identify the “common” issues sufficiently to make a proper typicality determination. It is quite possible there will be two classes — one being those who dealt with dealers who participated in the conspiracy and the other being those who dealt with dealers who did not participate in the conspiracy.
. See note 1 above; compare, for example, Baerga v. Richardson, 500 F.2d 309, 312-13 (3d Cir. 1974).
. The special factors contemplated by Ungar v. Dunkin' Donuts of America, Inc., 531 F.2d 1211, 1213 (3d Cir. 1976), include the district court’s failure to apply the criteria in F.R.Civ.P. 23 to the antitrust law issues pointed out in Judge Gibbons’ opinion and its failure to make findings of the type in Windham, supra.