Kottaras v. Whole Foods Market, Inc.
281 F.R.D. 16
D.D.C.2012Background
- WF Markets acquired Wild Oats on Aug. 28, 2007, creating a PNOS-focused retailer landscape in LA County.
- FTC sought to enjoin the merger for antitrust concerns in multiple markets, but preliminarily denied due to broader market definition.
- On remand, the FTC and WF entered a consent order divesting 32 WF locations (none in LA), and the FTC case was voluntarily dismissed.
- In Jan. 2010, Kottaras filed suit alleging antitrust violations (Counts I–IV) focused on LA County price effects from the WF-Wild Oats merger.
- Kottaras moved to certify a class of LA County shoppers of premium, natural, and organic products, seeking Rule 23(b)(2) and/or (b)(3) relief.
- The court conducted a December 7, 2011 hearing on expert opinions (Capps for plaintiff, Ordover for WF) and now denies class certification on both 23(b)(3) and 23(b)(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Predominance under Rule 23(b)(3) | Capps shows common proof of impact and damages | Impact requires individualized inquiry; common proof insufficient | Not satisfied; predominance fails |
| Adequacy of proposed damages methodology | Regression model can quantify classwide damages | Methodology too vague to prove common impact | Rejected; methodology inadequate for class-wide proof of injury |
| Net injures after offsetting price declines | Gains offset harms; net injury still shown by class | Benefits must offset harms, but common proof cannot establish widespread injury | Unable to prove widespread injury under common evidence |
| Rule 23(b)(2) viability | Injunctive relief appropriate for ongoing anticompetition | Monetary damages dominate; b(2) inappropriate | Not appropriate; damages are central |
| Judicial scrutiny of expert methodology at certification | Experts’ plan proves class-wide impact | Methodology underdeveloped and vague | Court requires more developed methodology; not satisfied |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (rigorous Rule 23 analysis; merits may bear on certification)
- In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3d Cir. 2008) (rigorous analysis and expert disputes at certification)
- In re Nifedipine Antitrust Litigation, 246 F.R.D. 365 (D.D.C. 2007) (colorable method for proving classwide impact; no merit merits duel)
- Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672 (7th Cir. 2009) (net injury concept; gains offset losses in class proof)
- Los Angeles Memorial Coliseum Comm’n v. National Football League, 791 F.2d 1356 (9th Cir. 1986) (offset benefits against harms in measuring damages)
- Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) (precludes improper merits inquiry; context matters)
- United States v. Philadelphia Nat’l Bank, 374 U.S. 321 (1963) (procompetitive benefits do not justify anticompetitive harms)
- Scott v. First Am. Title Ins. Co., 276 F.R.D. 471 (E.D. Ky. 2011) (individualized proof defeats class if necessary)