IN RE: LINERBOARD ANTITRUST LITIGATION (MDL No. 1261); WINOFF INDUSTRIES, INC. v. STONE CONTAINER CORPORATION, et al.; GENERAL REFRACTORIES COMPANY, on behalf of itself and all others similarly situated v. STONE CONTAINER CORPORATION, et al.
No. 01-4535
United States Court of Appeals for the Third Circuit
September 5, 2002
305 F.3d 145
McKEE, FUENTES and ALDISERT, Circuit Judges.
Christopher Landau
Kannon K. Shanmugam
Grant M. Dixton
Kirkland & Ellis
655 Fifteenth St., N.W.
Washington, D.C. 20005
Attorneys for Appellants International Paper Company, Union Camp Corporation, Weyerhaeuser Company, Gaylord Container Corporation, Tenneco, Inc., Tenneco Packaging and Packing Corporation of America
Barbara W. Mather (argued)
Pepper, Hamilton LLP
18th and Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103-2799
Attorneys for Appellants Jefferson-Smurfit Corp., Stone Container Corp. and Smurfit-Stone Container Corp.
Steven C. Seeger
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Daniel B. Huyett
Matthew W. Rappleye
Stevens & Lee
111 North Sixth Street
Reading PA, 19603
Attorneys for Appellants International Paper Company and Union Camp Corporation
Douglas J. Kurtenbach
James H. Schink
Timothy A. Duffy
Barak S. Echols
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Ralph G. Wellington
Sherry Swirsky
Schnader, Harrison, Segal & Lewis LLP
1600 Market Street
Suite 3600
Philadelphia, PA 19103
Edward M. Posner
Paul H. Saint-Antoine
Isabel C. Duffy
Drinker Biddle & Reath LLP
One Logan Square
18th and Cherry Streets
Philadelphia, PA 19103-6996
Attorneys for Appellant Georgia Pacific Corporation
R. Mark McCareins
Dane A. Drobny
Michael J. Mayer
Andrew D. Shapiro
Winston & Strawn
35 West Wacker Drive
Suite 4200
Chicago, IL 60601
Attorneys for Appellants Jefferson-Smurfit Corp., Stone Container Corp. and Smurfit-Stone Container Corp.
Richard C. Rizzo
Jennifer R. Clarke
Will W. Sachse
Donald C. Le Gower
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
Attorneys for Appellant Temple-Inland, Inc.
ATTORNEYS FOR APPELLANTS
Sandals & Langer, LLP
One South Broad Street
Suite 1850
Philadelphia, PA 19107
Lead Counsel for All Appellees
Eugene A. Spector (argued)
Jeffrey J. Corrigan
William G. Caldes
Spector Roseman & Kodroff, P.C.
1818 Market St.
Suite 2500
Philadelphia, PA 19103
Michael J. Freed
Steven A. Kanner
William London
Much Shelist Freed Denenberg Ament & Rubenstein, P.C.
200 North LaSalle Street
Suite 2100
Chicago, IL 60601-1095
Attorneys for Appellees General Refractories Company and Co-Lead Counsel for Corrugated Sheet Plaintiffs
Robert J. LaRocca
Kohn, Swift & Graf, P.C.
One South Broad Street,
Suite 2100
Philadelphia, PA 19107
Attorney for Appellees Oak Valley Farms, Inc., Garrett Paper, Inc. and Local Baking Products, Inc.
Martin Twersky
Berger & Montague, P.C.
1622 Locus Street
Philadelphia, PA 19103
Attorneys for Appellee Garrett Paper, Inc.
Roberta D. Liebenberg
Donald L. Perelman
Fine Kaplan & Black
1845 Walnut Street, 23rd Floor
Philadelphia, PA 19103
Attorneys for Appellee Local Baking Products, Inc.
W. Joseph Bruckner
Janelle K. Beitz
Lockridge Grindal Nauen PLLP
100 Washington Ave. South
Suite 2200
Minneapolis, MN 55401
Attorneys for Appellees Oak Valley Farms, Inc., Garrett Paper, Inc. and Local Baking Products, Inc.
Mark Reinhardt
Mark Wendorf
Reinhardt & Anderson
First National Bank Building
Suite E-1000
332 Minnesota St.
St. Paul, MN 55101
Attorneys for Appellee Albert I. Halper Corrugated Box Company
ATTORNEYS FOR APPELLEES
ALDISERT, Circuit Judge:
This appeal by manufacturers of linerboard1 requires us to decide if the district court erred in granting two motions for class certification by groups of plaintiffs who brought antitrust law suits alleging that the linerboard manufacturers engaged in a continuing combination and conspiracy in unreasonable restraint of trade and commerce in violation of Section 1 of the Sherman Act,
find[ ] that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.2
Appellants are represented through briefs and oral argument by two groups of manufacturers, the “International Paper Appellants”3 and the “Georgia Pacific Appellants.”4
The district court established two classes:
All persons in the United States who purchased corrugated containers directly from any Defendant at any time during the period October 1, 1993 through November 30, 1995, but excluding Defendants, their respective parents, subsidiaries and affiliates and federal, state and local governmental entities and political subdivisions.
* * * * *
All individuals and entities who purchased corrugated sheets in the United States directly from any of the defendants during the class period from October 1, 1993 through November 30, 1995, excluding the defendants, their co-conspirators, and their respective parents, subsidiaries and affiliates, as well as any government entities.
In re Linerboard Antitrust Litig., 203 F.R.D. 197, 203 (E.D. Pa. 2001) (emphasis added). These classes are presented before us as the “Box Appellees” and the “Sheet Appellees.”
The district court concluded that the putative classes met the requirements of
there is an overlap between the predominance requirement of
Rule 23(b)(3) and the prerequisite ofRule 23(a)(2) that common questions exist. “The courts have repeatedly focused on the liability issues, in contrast to damage questions, and, if they found issues were common to the class, have held thatRule 23(b)(3) was satisfied.” 4 NEWBERG ON CLASS ACTIONS, § 18-26.
The court then decided that the putative classes had met the requirements of
I.
The International Paper Appellants argue that the district court erred in holding that Appellees have sufficiently demonstrated that they will be able to prove common impact at trial. In support of this major premise, they contend that the court erred in applying a legal presumption of impact and failing to apply rigorous scrutiny to plaintiffs’ proffered impact evidence. They contend also that the court erred in ignoring the individual issues raised by plaintiffs’ claim of fraudulent concealment.
For their pаrt, the Georgia Pacific Appellants argue that the district court erred because here the existence of injury, and hence potential liability, requires an inherently individualized inquiry. Similarly, they argue that the court erred in certifying classes because the existence of fraudulent concealment also requires an inherently individualized inquiry.
We review a district court‘s grant of class certification under an abuse of discretion standard. Newton v. Merrill Lynch, Pierce, Fenner & Smith, 259 F.3d 154, 165-166 (3d Cir. 2001).
In Katz v. Carte Blanche Corp., 496 F.2d 747, 756-757 (3d Cir. 1974) (in banc), we articulated the standard of review applicable to class action decisions. We must decide whether the
23(a) prerequisites have been met, whether the district court correctly identified the issues involved and which are common, and whether it properly identified the comparative fairness andefficiency criteria. If the court‘s analysis on these points is correct, then, “it is fair to say that we will ordinarily defer to its exercise of discretion” embodied in the findings on predominance and superiority. Id.
Bogosian v. Gulf Oil Corp., 561 F.2d 434, 448 (3d Cir. 1977).
The district court had jurisdiction pursuant to
II.
In presenting their theory of antitrust liability, Appellees averred that even though demand for linerboard was strong and rising between 1989 and 1992, the manufacturers’ prices for linerboard had fallen; that the manufacturers attempted to increase prices during 1991, 1992 and the first half of 1993, but the price increase announcement did not “stick” and, therefore, the manufacturers had to rescind them. It was at this point in September 1993, plaintiffs allege, that Roger Stone, president of Stone Container Corporation, the largest corrugated paper manufacturer, reported that “the past five years have been the only five-year period (going back as far as the 1920‘s) when the containerboard industry has had consistently declining prices. It‘s never happened before, never happened in the depression, but it‘s happened these last five years.” App. at 710.
According to plaintiffs, declining prices were attributed to excess inventory or inventory overhang. They also maintained that Stone Contаiner masterminded a two-fold plan among the manufacturers to lower the industry inventory to a five-week supply for a 2.5 million ton threshold, in order to implement price increases. The Packaging Corporation of America stated in the fall of 1993:
Weakness in containerboard pricing during the first half of 1993 was more supply-related than demand-
related. Earlier this year, industry inventories of containerboard hovered above 2.9 [million] tons and nearly [six] weeks of supply, above the 2.5-2.6 [million] tons and 5.0-5.2 week range usually required to sustain a price increase.
App. at 1553.
The plan was two-fold. First, the manufacturers would close their mills for “market downtime,” thereby reducing industry inventory at mills and box plants. Second, Stone would purchase inventory from other manufactures while idling its own mills. In implementing this conspiracy, during late June and early July 1993, Roger Stone conducted a telephone survey of his competitors. He coordinated the industry-wide downtime and agreed to have his company purchase a significant volume of linerboard from its competitors rather than meet the requirements from its own production. Stone took downtime of approximately 180,000 tons of containerboard by shutting six of its mills during the following weeks and months.
The manufacturers closed their mills between July and December. By October 1993, they had concerted their actions and had lowered total inventories to the desired level of less than a five-week supply. A total of 435,000 tons had been withdrawn from the market. Inventory reached “a twenty-year low in terms of weeks of supply . . . .” App. at 733. In October 1993, Appellants successfully increased their prices for containerboard and boxes for the first time in more than two years. Each raised its container prices by an identical amount. Subsequently, the major manufacturers continued their pattern of taking substantial downtime and implementing price increases. In late November, less than two months after the successful October 1 price increase, Stone announced another $30 per ton increase to be effective on January 1, 1994, even though analysts were not expecting another attempt to raise containerboard prices until February or March of that year. Other manufacturers joined, and the price increase became effective in March 1994.
In April 1994, Appellants justified another containerboard price increase citing low inventory. Between
Thus, plaintiffs’ theory of antitrust liability is based on poly-syllogisms: (1) Prices in the marketplace are controlled by the economic laws of supply and demand, to wit, if a product is in short supply, the price will increase. During the period in question, linerboard was in short supply. Therefore, during this period, the price of linerboard increased. (2) Closing down production will create a shortage in supply and a corresponding price increase. The linerboard manufacturers closed down production. Therefore, the linerboard manufacturers created a shortage in supply and a price increase.
III.
We address first, the contention that the court erred in applying a presumption of impact, in order to demonstrate that questions of law and fact common to the members of the class predominate over any questions affecting only individual members. The district court did apply such a presumption, relying on the oft-quoted statement in Bogosian, familiarly described as the “Bogosian short-cut“:6
If, in this case, a nationwide conspiracy is proven, the result of which was to increase prices to a class of plaintiffs beyond the prices which would obtain in a competitive regime, an individual plaintiff could prove fact of damage simply by proving that the free market prices would be lower than the prices paid and that he made some purchases at the higher price. If the price
structure in the industry is such that nationwide the conspiratoriаlly affected prices at the wholesale level fluctuated within a range which, though different in different regions, was higher in all regions than the range which would have existed in all regions under competitive conditions, it would be clear that all members of the class suffered some damage, notwithstanding that there would be variations among all dealers as to the extent of their damage. “[The] burden of proving the fact of damage under § 4 of the Clayton Act is satisfied by . . . proof of some damage flowing from the unlawful conspiracy . . . .” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114 n.9 (1969). Under these circumstances, proof on a common basis would be appropriate. Even if the variation in price dynamics among regions or marketing areas were such that in certain areas the free market price would be no lower than the conspiratorially affected price, it might be possible to designate subclasses to conform with these variations. See In re Antibiotic Antitrust Actions, 333 F. Supp. 278, 281 (S.D.N.Y. 1971).
Bogosian, 561 F.2d at 455 (emphasis omitted).7
Appellants challenge the following determination of the district court:
Plaintiffs have shown that they plan to prove common impact by introducing generalized evidenсe which will not vary among individual class members. For example, plaintiffs contend that even though prices may have varied among regions, the alleged conspiracy caused these prices to rise throughout the country. Although the prices for corrugated sheets and boxes may have increased due to demand, because defendants allegedly conspired to reduce production of linerboard, the price was higher than it would have been under competitive conditions. Such allegations, supported by the evidence presented, are of the kind contemplated by the Third Circuit in Bogosian and Newton. See also, Lumco Indus., Inc. v. Jeld-Wen, Inc., 171 F.R.D. 168, 173 (E.D. Pa. 1997).
The Court recognizes that defendants dispute plaintiffs’ allegations. However, at the class certification stage, “the Court need not concern itself with whether Plaintiffs can prove their allegations regarding common impact; the Court need only assure itself that Plaintiffs’ attempt to prove their allegations will predominantly involve common issues of fact and law.” Lumco Indus., 171 F.R.D. at 174. “Plaintiffs need only make a threshold showing that the element of impact will predominantly involve generalized issues of proof, rather than questions which are particular to each member of the plaintiff class.” Id. (citing In re Disposable Contact Lens Antitrust Litig., 170 F.R.D. 524 (M.D. Fla. 1996)). Therefore, the Court concludes that plaintiffs’ allegations regarding impact, like their allegations regarding conspiracy, will focus the inquiry on defendants’ actions, not on individual questions relating to particular plaintiff class members.
Linerboard, 203 F.R.D. at 220.
A strong argument can be made that the Bogosian concept of presumed impact was properly applied here. The economic laws of supply and demand run in tandem with the tenets of logic. A reduction in supply will cause prices to rise. A deliberate cut in supply, as alleged here, is a deliberate interference with market forces. Coincident with this interference with the normal market forces, linerboard
The post hoc accusation is trumped, however, by the laws of economics. If the facts do, in fact, support plaintiffs’ theory that “an individual plaintiff could prove fact of damage simply by proving that the free market prices would be lower than the prices paid and that he made some purchases at the higher price[,]” Bogosian, 561 F.2d at 455, this would be a demonstration of the laws of supply and demand at work.
IV.
But there is more to this case than exclusive reliance on the presumed impact theory. The district court used a belt and suspenders rationale to support its conclusion that the putative class had met its burden of showing impact. In addition to relying on the Bogosian short cut, it credited the testimony of plaintiffs’ experts, opinions that were supported by charts, studies and articles from leading trade publications. These experts suggested that advanced econometric models could be effectively prepared to establish class-wide impact.
A.
In reaching its decision, the district court made note of plaintiffs’ expert Dr. John Beyer, who presented two possible means of assessing impact on a class-wide basis--multiple regression analysis, and the benchmark or yardstick approach, which he described as methods of showing “an antitrust impact by generalized proof.” Affidavit of Dr. John C. Beyer, App. at 673-675. See also, In re Plastic Cutlery Antitrust Litig., No. CIV. A. 96-CV-728, 1998 WL 135703, at *7 (E.D. Pa. Mar. 20, 1998); In re Flat Glass Antitrust Litig., 191 F.R.D. 472, 485-486 (W.D. Pa. 1999) (identifying multiple regression analysis as a method of proving impact).
Significantly, Dr. Beyer stated that he found that linerboard and corrugated box prices were closely correlated. He concluded that linerboard transaction prices, as well as corrugated containerboard prices, behaved similarly over time across different regions of the country and across different types of linerboard. These findings, sometimes referred to as “structure in pricing,” demonstrated to Dr. Beyer that “[d]espite any variations in particular boxes or customers, prices for all corrugated containers would have responded over time to linerboard price increases in a similar manner . . . .” Id. Based on this qualitative analysis, he concluded that the “alleged conspiracy would have had a common, class-wide impact, and that all purchasers of corrugated containers would have paid a higher price as a result of the conspiracy.” Id. at 673. We deem his conclusion to be significant because it was supported by charts and studies.
In discussing these feasible approaches, which could be used to provide quantitative methods for corroborating his opinion on impact and for estimating damages, he suggested as a potential benchmark, the potential prices charged for linerboard during a competitive period when there would be no effects of the conspiracy. He explained that the necessary data was available to do the analysis and described the types of data he would use. He discussed
B.
The plaintiffs also presented an affidavit of Dr. Robin C. Cantor who stated that “[b]ased on my analysis of the pricing data and company records, I conclude that the alleged unlawful conduct to raise linerboard prices would have impacted all members of the proposed class through higher corrugated sheet prices.” App. at 612. We deem this conclusion to also be extremely significant.
Such a conclusion was supported by relevant data. For example, she indicated that the containerboard industry is relatively concentrated and that during the relevant period, 77 percent of linerboard and 71 percent of the “corrugated medium” was produced by the top ten firms and that overall, 73 percent of containerboard production was concentrated in the top ten firms. Id. at 614. She also indicated that benchmark prices are published weekly in a number of sources including “The Yellow Sheet,” “Pulp and Paper Week” and “Pulp & Paper‘s North American Fact Book,” and that “[a]ccording to a Weyerhaeuser document, ‘linerboard is the industry‘s indicator price.’ ” Id. at 619. Dr. Cantor recognized that “[c]orrugated boxes are the most popular shipping containers in the world. Over 90 percent of all products in the Unitеd States are shipped in corrugated cardboard boxes.” Id. at 623 (quoting the American Forest and Paper Association website). Emphasizing this dominance over the shipping industry, Dr. Cantor remarked that:
[t]he market began to turn in the third quarter of 1993 when containerboard producers announced an estimated 400,000 tons of downtime to reduce linerboard and medium inventories just as box shipments began to pick up. [(quoting Linerboard: Prices Soar to Record Levels as Shortage Condition Prevail, PULP & PAPER WEEK, Vol. 69, No. 1 at 13).]
The industry is gradually responding to the soft linerboard market by announcing significant downtime to be taken in the third quarter. Announcements to date of downtime by Stone, Temple-Inland, Union Camp, IP and [Packaging Corporation of America] amount to roughly 300,000-350,000 tons of production or 5.4% of the industry‘s capacity during the three month period.” [(quoting Linerboard Markets--Industry Report, Donaldson, Lufkin & Jenrette Securities, August 10, 1993).]
App. at 626.
She also indicated that there are several accepted statistical or mathematical approaches that could be used to determine the percentage or absolute overcharge due because of the effect of a conspiracy to manipulate prices. App. at 628. She suggested that “benchmarking,” which uses “competitive prices for other comparable products to estimate the pattern of prices but-for the alleged misconduct[,]” could be effectively employed in this situation. Id. Another proffered model would “compare[ ] prices during non-conspiratorial periods with product prices during the alleged conspiracy,” and yet a third approach would use revenue, production and profit data to derive prices that are consistent with “yardstick” competitive performance levels.
Most significantly, she concluded:
In sum, containerboard and corrugated sheet products exhibit sufficient characteristics and their sale and production exhibit sufficient economic conditions to control for product variations in a price analysis. In combination, these characteristics and conditions indicate that a price-fixing conspiracy would have a common impact on all members of the proposed class and that feasible methods can be used to estimate damages reliably on a class-wide basis.
App. at 629.
C.
Based on the foregoing, we conclude that the district court did not err in determining that plaintiffs showed that
In commenting on plaintiffs’ submissions, the district court referred to the teachings of Newton for the proposition that this court does not require plaintiffs to have selected a particular econometric model for demonstrating impact (or proving damages) at the class certification stage. In In re Corrugated Container Antitrust Litig., 80 F.R.D. 244 (S.D. Tex. 1978), the identical situation was presented to that court where plaintiff had identified two generally accepted methodologies, which he planned on using to determine impact and damages. Relying heavily on Bogosian, the court accepted that contention and certified the class. Id. at 251-252. Without explicitly so stating, the district court, like the Corrugated Container court, did not require the experts to pick one particular method over another at the class certification stage, recognizing that the certification stage is early in the overall litigation process. Linerboard, 203 F.R.D. at 219.
Accordingly, we reject the contention that plaintiffs did not demonstrate that sufficient proof was available, for use at trial, to prove antitrust impact common to all the members of the class.
V.
A significant portion of Appellants’ briefing, and a major emphasis at oral argument, was that the factual allegations alleged here track precisely the factual scenario in Newton, and therefore, the district court erred in not following the holding of Newton and denying class certification. At oral argument, counsel for Appellants referred to Newton as “provid[ing] the guide for resolution in this case” and referred to a single sentence contained therein that constituted, in his formulation, a “teaching [that] holds with respect to both of our submissions today.”8 That passage
We have several problems with this argument. In and of itself, the quotation can be interpreted as the obverse of
Equally important, the quotation at issue must be considered in the precise context in which it was used in Newton. It formed the final sentence of a paragraph in which we discussed permissible presumptions proof of reliance and injury in securities cases. Having cited a number of cases upholding presumptions of reliance in Rule 10b-5 claims, we stated thаt where a presumption of
A.
We consider it useful to identify the precise flashpoint of controversy at stake in Newton. Roscoe Pound taught us that the judicial process distinguishes discrete functions in the appellate decisional process: (1) finding or choosing (or creating) the law where the dispute is over the choice of the controlling legal precept; (2) if there is no dispute as to its selection, a disagreement over its interpretation; and (3) where there is agreement on the precept and its interpretation, the sole question is the application of the law to the facts, which Pound described as “[а]pplication of the abstract grounds of decision to the facts of the particular case.”9 The precise holding in Newton was that the facts common to the members of the class did not predominate. No new legal precept was created; no new nuance of interpretation was forthcoming. It was merely the application of ruling case law in this court to the facts of that case.
The process of justifying a court‘s decision always requires application of a legal precept to a particular factual situation. The application may be purely mechanical, as it is in most cases. If the facts are similar to those in an earlier case announcing a rule of law, the doctrine of precedent becomes operative. Where there is no quarrel over the choice and interpretation of the legal precept, here
B.
For Appellants’ argument to prevail, therefore, they must demonstrate that the facts in Newton are substantially similar to the facts in the case at bar, what logicians call inductive reasoning by analogy, or reasoning from one particular case to another. To draw an analogy between two entities is to indicate one or more respects in which they are similar and thus argue that the legal consequence attached to one set of particular facts may apply to a different set of particular facts because of the similarities in the two sets. Because a successful analogy is drawn by demonstrating the resemblances or similarities in the facts, the degree of similarity is always the crucial element. You may not conclude that only a partial resemblance between two entities is equal to a substantial or exact correspondence.
Logicians teach that one must always appraise an analogical argument very carefully. Several criteria may be used: (1) the acceptability of the analogy will vary proportionally with the number of circumstances that have been analyzed; (2) the acceptability will depend upon the number of positive resemblances (similarities) and negative
For Appellants to draw a proper analogy, they had the burden in the district court, as they do here, of showing that the similarities in the facts of the two cases outweigh the differences. They cannot do so, for two significant reasons. First, in Newton it was clear that not all members of the putative class sustained injuries; here, all members sustained injuries because of the artificially increased prices. Secondly, in Newton there were hundreds of millions of stock transactions involved, thus making the putative class extremely unmanageable; here, an astronomical number of transactions is not present. The classes are manageable.
We reversed the district court‘s determination of class certification in Newton because it involved a putative securities class action in which purchasers of stocks charged that their broker-dealers breached their duty to execute trades on the most favorable terms reasonably available. Newton, 259 F.3d at 161-163. The gravamen of the complaint was that their brokers could have received a better price for securities had they used a computer system other than the central National Best Bid and Offer system (“NBBO“). The evidence disclosed that on some occasions, the NBBO price was better than on other computer systems, at times, the prices were the same, and at other times, the NBBO price was worse than on other systems. Id. at 177-180. Under those circumstances, we concluded that not every class member was injured by the failure of the brokers to find the best possible price. Id. at 187-188.
Critical to our determination of whether class certification was proper, we noted that in determining how to execute a
These factors would appear to vary from class member to class member and, for each class member, from trade to trade. Whether a сlass member suffered economic loss from a given securities transaction would require proof of the circumstances surrounding each trade, the available alternative prices, and the state of mind of each investor at the time the trade was requested. This Herculean task, involving hundreds of millions of transactions, counsels against finding predominance.
* * * * *
The alleged injuries in Newton arise out of the execution of hundreds of millions of trades, not a single act of fraudulent conduct. The distinct facts among the hundreds of thousands of plaintiffs involving hundreds of millions of trades will determine whether securities violations occurred. Because plaintiffs’ claims will require an economic injury determination for each trade, we hold the putative class fails to satisfy the predominance requirement.
Contrasting the Newton facts with those in the case at bar, here there was no evidence that the individuals and entities who purchased corrugated containers or corrugated sheets from Appellants during the relevant two-year period had participated in hundreds of millions of commercial transactions. More important, the Newton court was staring a situation in the face where they would necessarily examine every stock purchase or sale because not every member of the putative class was injured. By direct contrast, with certain limited exceptions relating to purchasers whose contracts were tied to a factor independent of the price of linerboard, all purchasers of corrugated sheets and boxes were injured. They were all
For the foregoing reasons, we conclude that we cannot accept the analogue so vigorously urged by Appellants because the negative resemblances (dissimilarities) between Newton and the case at bar seriously outweigh the positive resemblances (similarities).
VI.
The Court‘s decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), bans Clayton Act lawsuits by persons who are not direct purchasers from the defendant antitrust violator. Appellants argue that the district court should have denied class certification, under the teachings of Illinois Brick, beсause members of the proposed classes purchased corrugated sheets or boxes, of which linerboard was a mere ingredient, and did not purchase linerboard per se. Appellees respond, as they did in the district court, that the facts here come within the purview of our decision and rationale in In re Sugar Indus. Antitrust Litig., 579 F.2d 13 (3d Cir. 1978), in which we held that the purchasers of candy made by the sugar manufacturers were not barred from bringing suit under the § 1 of the Sherman Act,
We posed the question succinctly: Does Illinois Brick bar suit by a plaintiff who purchases directly from the alleged offender, but buys a product which incorporates the price-fixed product as one of its ingredients? We held that there was no bar.
Our reasoning began with an explication of the rationale behind Illinois Brick:
The Court grounded its conclusion on several bases, including the possibility of exposing the defendant to multiple liability and the evidentiary complexities that would arise in apportioning the overcharge among those in the chain who had suffered injury. The Court also expressed concern that if the direct purchaser could not make a full recovery of the overcharge, the wrongdoer would be able to keep some of the fruits of
its illegality. Based on this reasoning, the Court held that the plaintiff, which purchased a completed building, was not permitted to sue the manufacturer of concrete block which had been incorporated into the structure.
We then explained why this rule would not apply to the purchasers of candy made with the price-fixed sugar:
As the defendants here point out, the product which plaintiff purchased competes not with sugar, but with other candy, and more than one ingredient determines the price. To this extent, there will be some additional complications underlying the damage claims. However, this must not be allowed to obscure the fact that the plaintiff did purchase directly from the alleged violator. True, the price-fixed commodity had been combined with other ingredients to form a different product. But just as the sugar sweetened the candy, the price-fixing enhanced the profits of the candy manufacturers. The situation is the same as if the general contractor which sold the building to the plaintiff in Illinois Brick were the manufacturer of the concrete block which went into the structure. In that situation, the concern which the Supreme Court expressed about the proration of overcharge among a number of entities in the chain would not have been present.
Nor is that problem of allocation among various distributors present in the case sub judice. Plaintiff is a direct purchaser and, therefore, entitled to recover the full extent of the overcharge.
In the case at bar, the district court met this issue head-on, and we agree completely with its analysis. It emphasized that the putative class plaintiffs purchased corrugated sheets or boxes directly from Appellants, and, like the candy in In re Sugar, which contained allegedly price-fixed sugar, the corrugated sheets and boxes contain linerboard that was subject to an agreement on output, which is equivalent to a price-fixing agreement. Accordingly,
VII.
This is not a securities case. It is an antitrust case involving allegations that several United States manufacturers of linerboard engaged in a continuing combination and conspiracy in unreasonable restraint of trade and commerce in violation of § 1 of the Sherman Act,
Appellants contend that Appellees’ claims are time-barred because most of the class period--from October 1993 to November 1995--ended more than four years before the filing of the sheet and box complaints in May 1999. Appellees agree on the time period, but respond that the four-year statute of limitations should be tolled under the doctrine of fraudulent concealmеnt because they had no knowledge of the alleged conspiracy or of any facts that might have led to the discovery thereof in the exercise of reasonable diligence. They contend that it was not until approximately February 25, 1998, when the Federal Trade Commission issued a press release, a complaint and a proposed consent decree against Appellant Stone Container Corporation, describing certain facets of anti-competitive conduct, that they became aware of Appellants’ misadventures.
A.
Although § 15b mandates a four-year statute of limitations for civil antitrust actions, it is well established that the doctrine of fraudulent concealment tolls the
[I]n order to establish the applicability of the doctrine, an antitrust plaintiff must show three things: (1) fraudulent concealment; (2) failure on the part of the plaintiff to discover his cause of action notwithstanding such concealment; and (3) that such failure to discover oсcurred [notwithstanding] the exercise of due care on the part of the plaintiff.
70 A.L.R. FED. 498 (1984).
Where an action implicating fraudulent concealment is sought to be brought in a class posture, we must decide whether the required elements of proof are too individualized to permit such treatment.
“It generally has been recognized that the question of concealment by [an] antitrust defendant is a common question, subject to being uniformly resolved on behalf of all members of the class.” In re Flat Glass, 191 F.R.D. at 487 (citing In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 519 (S.D.N.Y. 1996); In re Fine Paper Antitrust Litig., 82 F.R.D. 143, 154-155 (E.D. Pa. 1979)). “However, the question of discovery of the cause of action by a plaintiff presents an individual question.” Id. “Similarly, the issue of due diligence seemingly raises an individual question.” Id. “Thus, the broad issue of fraudulent concealment presents both common and individual issues; therefore, the determination whether an antitrust action involving fraudulent concealment may proceed as a class action turns upon which aspect of the issue may be considered to predominate.” Id. (citing Hedges Enters., Inc. v. Cont‘l Group, Inc., 81 F.R.D. 461, 476 (E.D. Pa. 1979)).
The cumulative experience of the judiciary has not been uniform in this regard. Some courts have regarded the issue of concealment to predominate, and have held that class certification is permissible, even though some individual questions are present. Other courts have considered individual questions to be too pervasive to permit it to be handled as a class matter. In this judicial
B.
Appellants argue that common issues of proof do not predominate with respect to the fraudulent concealment issue and that therefore a class action is not the appropriate vehicle for deciding Appellees’ claims. International Paper Appellant‘s Brief at 38-43. They suggest that fraudulent concealment involves a “two-pronged” inquiry--a concealment by the defendant and plaintiff‘s actual knowledge of it or failure to use due care to discover it--and cannot be established unless both prongs are satisfied. In asserting their position, they rely on the language of the Court of Appeals for the Fourth Circuit: “when the defendant‘s affirmative defenses (such as . . . the statute of limitations) may depend on facts peculiar to each plaintiff‘s case, class certification is erroneous.” Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 342 (4th Cir. 1998) (alteration in original) (internal quotation marks omitted); see also, Chevalier v. Baird Sav. Ass‘n, 72 F.R.D. 140 (E.D. Pa. 1976); In re Anthracite Coal Antitrust Litig., 78 F.R.D. 709 (M.D. Pa. 1978); Krehl v. Baskin-Robbins Ice Cream Co., 78 F.R.D. 108 (C.D. Cal. 1978).
They argue that a number of Appellees are barred from asserting a fraudulent concealment defense to the statute of limitations because they either had prior knowledge of the conspiracy, or did not act with the requisite due diligence, emphasizing that this sort of inquiry is highly personal and is susceptible only to individualized proof and, therefore, inappropriate for class treatment.13
Although a necessity for individualized statute-of-limitations determinations invariably weighs against class certification under
Rule 23(b)(3) , we reject any per sе rule that treats the presence of such issues as an automatic disqualifier. In other words, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification underRule 23(b)(3) . See 5 JAMES WM. MOORE ET AL., MOORE‘S FEDERAL PRACTICE P 23.46[3] (3d ed. 1999). Predominance underRule 23(b)(3) cannot be reduced to a mechanical, single-issue test.
Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir. 2000). We accept this reasoning as more persuasive than that espoused by the Court of Appeals for the Fourth Circuit in Broussard.
Notwithstanding the individual determinations that will undoubtedly arise at trial, common issues of concealment predominate here because “the inquiry necessarily focuses on defendants’ conduct, that is, what defendants did rather than what plaintiffs did.” In re Flat Glass, 191 F.R.D. at 488. Key questions will not revolve around whether Appellees knew that the prices paid were higher than they
C.
Moreover, any individualized facts of fraudulent concealment may be adjudicated in the same fashion and at the same time as individual damages issues. As a leading treatise on class actions explains: “Challenges based on the statute of limitations, fraudulent concealment, releases, causation, or reliance have usually been rejected and will not bar predominance satisfactiоn because those issues go to the right of a class member to recover, in contrast to underlying common issues of the defendant‘s liability.” NEWBERG & CONTI, NEWBERG ON CLASS ACTIONS § 4.26 (3d ed.)
Many courts faced with similar circumstances have certified class status with the expectation that individual questions concerning fraudulent concealment can be resolved at a later damages phase. See In re Flat Glass, 191 F.R.D. at 488 (citing In re Fine Paper, 82 F.R.D. at 154-155) (“[B]ifurcation of this litigation into liability and damage segments remains an option if the predominating elements of the question of fraudulent concealment do not prove susceptible to generalized proof.“). See also, In re Indus. Diamonds Antitrust Litig., 167 F.R.D. 374, 385 (S.D.N.Y. 1996) (Individualized issues raised in fraudulent concealment should be considered when court addresses each putative class member‘s damage claim.); Town of New Castle v. Yonkers Contracting Co., 131 F.R.D. 38, 43 (S.D.N.Y. 1990) (holding that individualized claims and defenses on statute of limitations issue can be adjudicated in separate determinations of damages).
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We have considered all contentions presented by the parties and conclude that no further discussion is necеssary.
The judgment of the district court will be affirmed.
RUGGERO J. ALDISERT
UNITED STATES CIRCUIT JUDGE
Notes
Bogosian, 561 F.2d at 457 (Aldisert, J., dissenting).This is not a pro se case. Plaintiffs’ counsel are competent, experienced and, in fact, nationally renowned attorneys in the antitrust field . . . In my view [after six years], this case has long since passed the stage where anyone concerned--parties, lawyers, or judges--should have to speculate as to the theory of the litigation . . . Moreover, until the theory of the case is settled, it will not be known which facts are “relevant” facts. Facts are only relevant insofar as they support a valid legal theory.
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And I would like to guide the Court . . . to the language in Newton. And if you will indulge me, I‘m going to quote one sentеnce. . . . If proof, if proof of the essential elements of the cause of action requires individual treatment, then class certification is unsuitable.
Now, that teaching holds with respect to both of our submissions today. [Co-counsel] has been speaking about causation or impact or injury. It also goes to proof of the essential elements of fraudulent concealment, the second part of our submission today.
Transcript of Oral Argument in In re Linerboard Antitrust Litig., No. 01-4353 (before the Court of Appeals for the Third Circuit, recorded in Philadelphia, Pennsylvania, July 19, 2002, at 16-17).