305 F.R.D. 164
N.D. Cal.2015Background
- Plaintiffs (Kamakahi & Levy) brought a putative class action challenging ASRM and SART ethics/guidelines that state sums of $5,000+ require justification and $10,000+ are inappropriate for egg (oocyte) donor compensation, alleging horizontal price‑fixing in violation of Section 1 of the Sherman Act.
- SART member clinics agreed as a condition of membership to follow ASRM guidelines; some donor agencies likewise signed agreements to follow them. Plaintiffs seek treble damages and an injunction removing the compensation limits.
- Plaintiffs moved to certify a nationwide class of women who sold egg‑donor services to SART member clinics or agencies that agreed to follow the Guidelines (April 12, 2007–present); they also sought a (b)(2) subclass for injunctive relief for future donors.
- Each side filed Daubert motions: Plaintiffs moved to exclude bioethicist Dr. Insoo Hyun (Defendants’ expert); Defendants moved to exclude economist Dr. Hal Singer (Plaintiffs’ damages/impact expert).
- The court denied Plaintiffs’ motion to exclude Hyun (holding his bioethics opinions are admissible for a limited purpose), granted Defendants’ motion to exclude Singer (finding his regressions unreliable to prove classwide impact/damages), and granted class certification in part — certifying an issue class to decide liability (whether the Guidelines violate the Sherman Act) but declining to certify for adjudication of damages or to certify the injunctive‑relief subclass for lack of standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Hyun (bioethics) | Hyun should be excluded as irrelevant/merits advocacy and not methodologically reliable | Hyun is qualified as a bioethicist and his opinions about physicians’ ethical decisionmaking are relevant to whether individualized ethical judgments will undermine classwide proof | Denied — Hyun admissible for limited purpose (identifying ethical factors physicians might apply that bear on individualized pricing decisions) |
| Admissibility of Dr. Singer (economics/regression) | Singer’s regressions show a viable classwide method to prove impact and calculate aggregate damages | Singer’s models are unreliable and not generalizable beyond three non‑representative agencies; thus irrelevant to class certification | Granted — Singer excluded to the extent he purports to show classwide impact/damages; his analysis unreliable and non‑generalizable |
| Class certification for liability (whether Guidelines violate Sherman Act) | Common questions (existence of an agreement / price‑fixing) predominate; damages can be bifurcated | Predominance defeated because plaintiffs cannot prove impact/damages on a classwide basis; substitution and standing/antitrust‑injury issues | Granted in part — court certified an issue class under Rule 23(c)(4) to decide liability; damages and impact reserved/bifurcated for later individual or subgroup proceedings |
| Injunctive‑relief subclass (future donors) | Plaintiffs seek (b)(2) subclass of donors who intend to donate again to obtain injunctive relief | Named plaintiffs lack present intent/imminent injury to establish Article III standing for injunctive relief | Denied — no standing; named plaintiffs do not demonstrate imminent intent to donate and thus cannot represent a future‑donor injunctive subclass |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (gatekeeping standard for expert admissibility)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (Rule 23 rigorous commonality/representative requirements)
- Comcast Corp. v. Behrend, 569 U.S. 27 (2013) (class certification requires a damages model tied to the theory of liability)
- Leyva v. Medline Indus. Inc., 716 F.3d 510 (9th Cir. 2013) (individualized damages alone cannot defeat predominance)
- Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014) (affirming bifurcation: certify liability class while reserving individualized damages)
- Texaco Inc. v. Dagher, 547 U.S. 1 (2006) (rule of reason presumptively applies; some agreements are per se illegal, including horizontal price fixing)
- Knevelbaard Dairies v. Kraft Foods, 232 F.3d 979 (9th Cir. 2000) (horizontal price fixing is a per se Sherman Act violation; maximum prices also fall within price‑fixing prohibition)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (injury‑in‑fact for equitable relief must be actual or imminent)
- Taylor v. Sturgell, 553 U.S. 880 (2008) (limits on preclusion for non‑parties)
- Brunswick Corp. v. Pueblo Bowl‑O‑Mat, Inc., 429 U.S. 477 (1977) (definition of antitrust injury for standing)