In re Blood Reagents Antitrust Litigation
283 F.R.D. 222
E.D. Pa.2012Background
- Immucor and Ortho were the two leading producers of blood reagents; class period is 2000–2009.
- The putative class purchases traditional blood reagents (TBR) directly from Immucor or Ortho; ABR products are excluded from the class.
- FDA and AABB regulations create high barriers to entry; two new TBR entrants appeared only in 2008.
- In the 1990s, Immucor acquired multiple competitors, creating a US TBR duopoly with Ortho.
- OCV (Operation Create Value) pricing began around 1999–2000 with 25% annual increases in 2000 and 2001, followed by aggressive pricing strategies.
- BBLP (Blood Bank Leadership Program) enabled price increases of 200–300% between 2000 and 2002, with further increases in 2005 and 2008 under different pricing schemes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Predominance under Rule 23(b)(3) for impact and damages | Plaintiffs show common proof (Bogosian, market structure, pricing data, documents, and damages models) to prove impact. | Ortho contends common proof is insufficient; significant individualized issues remain. | Predominance satisfied with predominance shown through common proof. |
| Application of Bogosian shortcut to impact | Bogosian applies to demonstrate class-wide impact in a duopoly price-increase setting. | Bogosian applies variably; needs additional evidence. | Bogosian supports impact, but court accepts broader common-proof theories to satisfy predominance. |
| Reliability and admissibility of damages models (common proof of damages) | Dr. Beyer’s benchmark and yardstick methods provide class-wide damages measurement. | Models have deficiencies and potential need for individualized proof. | Damages models viable for class-wide measurement; could evolve to admissible evidence; predominance satisfied. |
| Fraudulent concealment and tolling impact on class certification | Fraudulent concealment issues can be adjudicated with common proof; tolling defenses can be resolved at a later stage. | Fraudulent concealment issues are overly individualized and may defeat predominance. | Fraudulent concealment does not defeat predominance; tolling issues remain for merits stage. |
Key Cases Cited
- Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir.1977) (presumption of antitrust impact where nationwide conspiracy raises prices)
- Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir.2011) (damages methodology must be capable of common proof at certification)
- Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir.2008) (rigorous analysis required for class certification; manageability of common proof)
- In re Linerboard Antitrust Litig., 305 F.3d 145 (3d Cir.2002) (antitrust class actions require common proof for predominance)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (modern approach to class certification and predominance)