In re Florida Cement & Concrete Antitrust Litigation
278 F.R.D. 674
S.D. Fla.2012Background
- Indirect Purchaser Plaintiffs seek class certification under Rule 23 for Florida ready-mix concrete purchasers who indirectly bought from Defendants via cost-plus contracts during 2008–present.
- Defendants Cemex, Florida Rock, Prestige, and Tarmac oppose certification; Plaintiffs’ class definition excludes certain purchasers and non-conspirator entities.
- Court assesses Rule 23(a) prerequisites (numerosity, commonality, typicality, adequacy) and Rule 23(b) options (2 and 3).
- Court considers whether Kerrigan and GVB are typical and adequate representatives of the proposed class; findings hinge on geographic/contractual factors and timing of purchases.
- Court denies class certification due to deficiencies in typicality and adequacy, and also finds issues with common impact and damages methodologies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 23(a) suitability | Kerrigan and GVB represent class injuries from price-fixing. | Kerrigan and GVB lack typicality/adequacy due to non-conspirator purchase and timing; commonality not proven. | Plaintiffs fail typicality and adequacy; 23(a) certification denied. |
| Typicality of proposed class representatives | Kerrigan and GVB suffer the same conspiracy injuries as class members. | Kerrigan purchased from a non-name entity and in non-conspiratorial region; GVB’s pre-October 2008 purchase is not within injury window. | Kerrigan and GVB not typical; typicality not satisfied. |
| Rule 23(b)(2) vs (b)(3) suitability | Class should be certified under 23(b)(2) or (b)(3) for common effects and remedies. | Damages are not incidental to injunctive relief; predominance and damages issues require individualized inquiries. | Certification not appropriate under either 23(b)(2) or 23(b)(3). |
| Common impact on direct purchasers | Common evidence (industry structure, pricing, contracts) shows class-wide impact via pass-through. | Evidence relies on incomplete analyses; regression data improperly included; no reliable common impact method. | No admissible common proof of impact; class-wide impact not shown. |
| Damages methodology for class-wide damages | Two-step regression/benchmark/NEIO approach yields a class-wide damages figure with pass-through assumed at 100%. | No empirical pass-through support; 100% assumption is unfounded; no apportionment method. | No plausible class-wide damages method; certification denied on this basis. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (class certification subject to rigorous Rule 23 analysis)
- Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004) (light burden for common questions; predominance separate)
- Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) (rigorous pre-certification analysis may be required)
- Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181 (11th Cir. 2003) (rigorous analysis of Rule 23 prerequisites at certification stage)
- Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011) (structure of damages model relevant to class certification)