In this long-running antitrust litigation, plaintiffs
[a]ll persons and entities in the non-West-em United States2 who purchased fresh agaricus mushrooms directly from an [Eastern Mushroom Marketing Cooperative (EMMC) ] member or one of its co-conspirators or its owned or controlled affiliates, agents, or subsidiaries at any time between February 4, 2001 and August 8,*167 2005 (the “Class Period”). The Class excludes the EMMC, its members and their parents, subsidiaries and affiliates.
Dkt. No. 517 at 4.
Defendants, who include the Eastern Mushroom Marketing Cooperative and other entities who were members of the EMMC or were affiliates of members of the EMMC,
Also before me is a related motion by certain defendants to dismiss, or in the alternative for summary judgment, with respect to the claims brought by plaintiffs Diversified Foods and Seasonings, Inc. (Civ. A. No. 06-0657) and Associated Grocers, Inc. (Civ. A. No. 06-1854).
I. The Product
“Fresh Agarieus mushrooms include white mushrooms, crimini mushrooms, and porta-bella mushrooms.” Dkt, No. 537, Ex. 2 (Johnson Rpt.) at ¶ 29; see also Dkt. No. 517, Ex. 2 (Elhauge Rpt.) at ¶21 (describing “both types of agarieus mushroom” as “white (young) and brown (aged, also sometimes called ‘Portobello’ or ‘crimini’)”). Certain defendants argue that there is a distinction between agarieus mushrooms sold “to fresh market customers such as retailers and food service customers” and agarieus mushrooms sold “to food processors who purchase agari-cus mushrooms in bulk quantities for canning or for use as ingredients in other food products such as soup.” Dkt. No. 537 at 15. They explain that processor market customers “paid drastically lower prices and ... were not subject to the EMMC’s minimum pricing policy.” Id. Defendants also argue that “mushrooms sold to fresh market customers ... are highly differentiated by numerous factors such as type, packaging, size, grade, slicing, washing, and farming method.” Id. Plaintiffs’ proposed class definition does not divide fresh agarieus mushrooms into different categories or recognize distinctions between the fresh market and food processor market.
II. The Players
On class certification, “[t]he relevant market can be envisioned as a three-layer cake, with [agarieus mushroom growers] at the top, [distribution entities] in the middle, and [purchasers of fresh agarieus mushrooms] at the base.” Wallach v. Eaton Corp.,
Defendants make up the top and middle layers of the market and include the EMMC and its members.
As background for this decision, it is important to mention certain non-defendants who have a connection to the facts relevant to this litigation. Also in the middle layer of the cake are a number of non-defendant distributors who distributed mushrooms grown by members of the EMMC. See, e.g., Dkt. No. 768 at 81:4-6 (“I think there are eight distributors who are not named as defendants.”); cf. id. at 24:16-19 (counsel for plaintiffs arguing that “we learned about these others over time through discovery, and we learned in discovery that we really shouldn’t have to name them as defendants because they were very tightly controlled by the growers... .”).And finally, at the top layer of the “cake,” but not named as a defendant is M & V Enterprises, the mushroom grower who sold mushrooms to distributor defendant M. Cutone. See id. at 80:13-6 (“And then the one grower who is not named as a defendant is the grower that was supposed to be the member of the EMMC for Cutone, who was—who appeared by mistake.”).
III. The Claimed Conspiracies
A. Price Fixing Claims
Plaintiffs contend that from on or around February 4, 2001 and through at least August 8, 2006, the EMMC and its members circulated written price lists and pricing policies for “sales of mushrooms made by distributors to the retail, wholesale, and food-service markets.”
Through its policies, the EMMC endeavored to set floor pricing for mushrooms at the point of distribution (i.e., the prices charged by the middle layer of the market), and not the price for mushrooms emerging from growing operations (i.e., the top layer of the market). See Dkt. No. 517 at Ex. 14 (***** Dep.) at 145:9-147:4. (“Q.... You’re a grower and a packager and the EMMC set floor pricing for the packaging aspect. Correct? A. Correct.... Q. And was any floor pricing set by EMMC that came out of growing operations? A. No. Sir.”); see also Dkt. No. 517 at Ex. 12 (***** Dep.) at 75:18-24 (“Q.... one of the policies that the EMMC adopted was to try to set prices for—the downstream price that shippers got when they sold their product to wholesalers and retailers, correct? A. Yes, sir.”); Dkt. No. 517 at Ex. 17 (***** Dep.) at 171:6-172:3 (explaining that the EMMC’s minimum pricing policy did not apply to the sales from the grower entity (Brownstone) to the distributor entity (To-Jo), but rather applied to the sales made by the distributor (To-Jo)). Plaintiffs contend that “[t]he pricing policies required distributors that were controlled by EMMC members to sell at the EMMC minimum prices.” Dkt. No. 517 at 6 (emphasis added). They assert that “[t]he EMMC created elaborate mechanisms to monitor prices charged by members and their affiliated distributors and to punish members who failed to comply with minimum prices.” Id. at 8 (emphasis added).
Defendants challenge the success of the EMMC’s price fixing policies, arguing that there is evidence during the relevant time period regarding EMMC members’ lack of adherence to the EMMC price lists. Dkt. No. 537 at 6. They explain that “the minimum pricing policy allowed the member companies to depart from the minimum prices when necessary to meet a lower price offered by a competitor” and argue that “there is no dispute that the EMMC members faced substantial price competition from mushroom producers who refused to join the EMMC as well as ... numerous member companies that resigned beginning shortly after the minimum pricing policy was adopted and throughout the relevant time period.” Id. at 6-7.
B. Supply Control: Deed Restrictions
Plaintiffs also contend that to support the EMMC’s minimum pricing policies, defendants implemented a supply control scheme—purchasing and leasing mushroom farms in order to place on the properties deed restrictions prohibiting the conduct of business related to the production of mushrooms. Dkt. No. 185 at ¶ 94; see also id. at ¶¶ 69, 73-81; Dkt. No. 517, Ex. 36 (April 17, 2001 EMMC management committee min
[t]hrough membership dues and a “Supply Control Assessment,” EMMC collected approximately $6 million from its members during 2001-2002. EMMC, acting as an agent of its members, then spent appi’oxi-mately $3 million to purchase four mushroom farms and to acquire lease options on two additional mushroom farms in the eastern United States for the purpose of shutting them down and reducing the mushroom production capacity available for nonmember non-conspirators to grow mushrooms in competition with the Defendants.
Id. at ¶ 72.
Defendants argue that there is evidence that it was “highly unlikely that the properties would ever be re-employed as mushroom production facilities” and “that all of the closed mushroom production and distribution facilities were purchased for other uses.” Dkt. No. 537 at 14. They contend there is evidence that the “supply control program was of no consequence to supply conditions in the relevant geographic market(s) between 2001 and the present time.” Id.
IV. Expert Testimony
A. Plaintiffs’ Expert
In moving for class certification, plaintiffs rely on the expert testimony of Professor Einer Elhauge. In his report, Professor El-hauge uses economic analysis, including regression analysis and an analysis of pre-conduct and post-conduct pricing to reach a conclusion that (1) the EMMC’s minimum pricing policy likely impacted all or nearly all class members, Dkt. No. 517, Ex. 2 (Elhauge Rpt.) at ¶¶ 7-13; (2) there were class-wide aggregate damages from the EMMC’s policies in an estimated total amount of ***** million, id. at ¶ 14; (3) the EMMC’s supply control agreement had common anticompeti-tive impact on the putative class, id. at ¶ 15; and (4) damages resulting from just the supply control agreement total an estimated ***** mjii¡on_
Relying on his regression analysis as “direct evidence of the EMMC’s ability to raise prices in the non-Westem United States” and considering “that fresh mushrooms are highly perishable and that transport over the Rocky Mountains is impractical,” Professor Elhauge opines that the non-Westem United States is a relevant geographic market for the mushrooms that are the subject of this litigation. See Dkt. No. 693 at 44, citing Dkt. No. 517, Ex. 2 (Elhauge Rpt.) at ¶¶ 55-57.
B. Certain Defendants’ Expert
In opposing class certification, certain defendants cite the testimony of their expert, Dr. John Johnson.
Dr. Johnson questions Professor Elhauge’s failure “to test for smaller, local markets compared to an all ‘non-Western states’ geographic market.” Id. at ¶ 101. He concludes that “[tjhere are many factors that require consideration in any determination of a relevant geographic market for mushrooms, none of which Professor Elhauge analyzed or discussed.” Id. These factors include: imports from Canada “and the fact that states near the Canadian border could substitute away from domestic mushrooms,” the presence “of non-EMMC growers in the Midwest and East that might be sufficient to defeat a price increase from the EMMC in some locations” and “customer-specific transportation costs and viable shipping ranges.” Id. (emphasis in original).
M.D. Basciani relies on the testimony of its expert, Dr. Rigoberto Lopez, in seeking to defeat class certification. It is Dr. Lopez’s opinion that Professor “Elhauge has failed to show that all members of the putative direct buyers class have sustained antitrust injuries as a result of the EMMC pricing policies and deed restrictions.” Dkt. No. 538, Ex. A. (Lopez Rpt.) at ¶ 10. He concludes that “a common framework applied to all buyers” cannot account for “the concept that buyers place certain restrictions on the purchase of mushrooms that increase the price.” Id. at ¶ 68. Dr. Lopez opines that “buyer-specific terms of trade ... need to be included in any empirical analysis to adjust the invoice price to the actual cost of the good purchased” and that “there are quality and service requirements that are demanded by the buyer that all factor into the pricing by the seller.” Id.
Dr. Lopez opines that when using a price correlation to define the relevant geographic market, “the market is the entire United States, not just east of the Rockies,” “a properly defined market share would also need to include imports” and that Professor El-hauge’s regression analysis cannot provide evidence of his defined geographic market. Id. at ¶¶ 32,34, 35.
Dr. Lopez also concludes that the “estimated damages from EMMC deed restrictions are zero” because the EMMC’s “deed restrictions were ineffective in controlling supply. .. .’’Id. at ¶ 85.
CLASS CERTIFICATION STANDARD
Rule 23 of the Federal Rules of Civil Procedure sets the standard for class certification. A party seeking class certification must affirmatively demonstrate compliance with the Rule. Wal-Mart Stores, Inc. v. Dukes,
In relevant part, Rule 23 provides:
(a) ... One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b) ... A class action may be maintained if Rule 23(a) is satisfied and if:
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(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
*173 (D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23.
“Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate” and “effectively limit[s] the class claims to those fairly encompassed by the named plaintiffs claims.” Wal-Mart,
In making a determination on class certification, the Court necessarily will consider issues that, to some extent, overlap issues to be decided at the final merits determination. See Hydrogen Peroxide,
at the certification stage, the district court cannot be bashful. It must resolve all factual or legal disputes relevant to class certification, even if they overlap with the merits—including disputes touching on elements of the cause of action.... Without this searching inquiry, a district court cannot determine if class certification is appropriate.
Reyes v. Netdeposit, LLC,
DISCUSSION
In considering whether plaintiffs have met their burden under Rule 23, I am mindful that “[t]here are no hard and fast rules ... regarding the suitability of a particular type of antitrust case for class action treatment. Rather, the unique facts of each case will generally be the determining factor governing certification.” Robinson v. Tex. Auto. Dealers Ass’n,
I. Numerosity
I find that plaintiffs have met their burden with respect to the first element of analysis under Rule 23(a): whether the class contains a number of members that is too large to practically join them all in a single case. Fed. R. Civ. P. 23(a)(1). “This calls for an inherently fact-based analysis that requires a district court judge to ‘take into account the context of the particular case,’ thereby providing district courts considerable discretion in making numerosity determinations.” In re: Modafinil Antitrust Litig.,
To demonstrate numerosity, plaintiffs have “relied on Defendants’ own sales data ...” to demonstrate the number of customers who they claim purchased fresh agaricus mushrooms directly from an EMMC member or one of its eo-eonspirators or its owned or controlled affiliates, agents, or subsidiaries during the relevant time period. Dkt. No. 549 at 11. “[Generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40” the numer-osity requirement has been satisfied. Stewart v. Abraham,
II. Commonality
Likewise, I find that plaintiffs have met their burden to show that there are “questions of law or fact common to the class[.]” Fed. R. Civ. P. 23(a)(2). “The focus of the commonality inquiry is not on the strength of each plaintiffs claim, but instead is on whether the defendant^’] conduct was common as to all of the class members.” Rodriguez v. Nat’l City Bank,
M.D. Baseiani argues that the element of commonality is not met because “[pjlaintiffs offer no evidence ... that class members have suffered the same injury,” citing “[t]he myriad dissimilarities within the proposed class....” Dkt. No. 538 at 30. Plaintiffs respond that “factual differences among the claims of the putative class members do not defeat certification.” Dkt. No. 549 at 12, quoting In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions,
III. Ascertainability
With respect to ascertainability, the “inquiry is two-fold, requiring a plaintiff to show that: (1) the class is defined with reference to objective criteria; and (2) there is a ‘reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.’” Byrd v. Aaron’s Inc.,
First ... ascertainability and a clear class definition allow potential class members to identify themselves for purposes of opting out of a class. Second, it ensures that a defendant’s rights are protected by the class action mechanism. Third, it ensures that the parties can identify class members in a manner consistent with the efficiencies of a class action.
Carrera v. Bayer Corp.,
A. The Illinois Brick Direct Purchaser Rule
Relevant here, defendants contend my consideration of whether plaintiffs have met the ascertainability requirement is impacted by application of the direct purchaser rule set forth in Illinois Brick Co. v. Illinois,
In the Third Circuit, indirect or secondary purchasers may sue under the antitrust laws if they can establish one of three possible exceptions to the Illinois Brick direct purchaser rule: (1) a “cost-plus” exception, (2) a “co-conspirator” exception, and (3) an “owned or controlled” exception. See In re: Domestic Drywall Antitrust Litig., No. 13-2437,
In opposing class certification, certain defendants contend that without a series of mini-trials it is not possible to ascertain whether members of the putative class can recover either because they are direct purchasers under Illinois Brick or because they made purchases that fell within one of its exceptions. See Dkt. No, 536 at 21-22. Plaintiffs respond that there is no Illinois Brick issue in this litigation—and therefore no as-certainability problem—because “any class member purchasing from an affiliated distributor would be the first to purchase mushrooms at prices fixed by Defendants” and thus they are not precluded from proceeding as a class under Illinois Brick because “no class member’s claims involve proof of passed on
Notwithstanding plaintiffs’ argument that this case does not involve a pass-on, “[t]his
permitting the use of pass-on theories under [Clayton Act] § 4 essentially would transform treble-damages actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge— from direct purchasers to middlemen to ultimate consumers. However appealing this attempt to allocate the overcharge might seem in theory, it would add whole new dimensions of complexity to treble-damages suits and seriously undermine their effectiveness.
Ill. Brick,
(1) a risk of duplicative liability for defendants and potentially inconsistent adjudications could arise if courts permitted both direct and indirect purchasers to sue defendants for the same overcharge; (2) the evidentiary complexities and uncertainties involved in ascertaining the portion of the overcharge that the direct purchasers had passed on to the various levels of indirect purchasers would place too great a burden on the courts; and (3) permitting direct and indirect purchasers to sue only for the amount of the overcharge they themsеlves absorbed and did not pass on would cause inefficient enforcement of the antitrust laws by diluting the ultimate recovery and thus decreasing the direct purchasers’ incentive to sue,
Hess I,
The cost-plus exception applies where a pre-existing, fixed-quantity, cost-plus contract insulates a direct purchaser “from any decrease in its sales as a result of attempting to pass on the overcharge, because its customer is committed to buying a fixed quantity regardless of price.” Ill. Brick,
Under the co-conspirator exception, “[a]n indirect purchaser may sue if it can establish that the actual direct purchaser, the middleman, has entered into a price-fixing conspiracy with the manufacturer, [or in this case, the grower,] thus rendering the direct purchaser a ‘co-conspirator.’ ” Animal Sci. Prod., Inc. v. China Minmetals Corp.,
Finally, the owned or controlled exception permits suits brought by indirect purchasers when “the direct purchaser to whom they pay the passed-on overcharge is owned or controlled by a conspirator. This rule ... cabins [antitrust] standing
However, on the record now before the Court, plaintiffs have not persuaded me that the policy concerns underlying Illinois Brick are negated simply by virtue of the EMMC’s alleged scheme to fix the distribution price of mushrooms (and not the price for mushroom sales to distributors). Although I am sensitive to the concern that an antitrust violator should not be able tо evade liability “by the simple expedient of inserting a subsidiary between the violator and the first uncontrolled purchaser,” In re Sugar Indus. Antitrust Litig.,
It is not clear whether the EMMC’s grower members each had their own integrated or otherwise owned or controlled distribution operations or that all of the relevant distributors have been named as defendants. As counsel for certain defendants explained at oral argument,
the distributors did not sign [the EMMC membership] agreement. That was signed by the growers with the one exception [of] Mr. Cutone ... But ... other than that, no distributor signed the membership agreement. And every distributor has a different relationship, they[ a]re corporate, family, or what other than the other. It[ i]s not a uniform issue that every distributor and grower has the exact same relationship.
Dkt. No. 768 at 162:16-25. Certain defendants thus argue class certification would be inappropriate because “each [relationship between a distributor and a grower] is a separate issue which is going to affect liability in this case for a particular set of plaintiffs who purchased from that particular distributor.” Id. at 163:3-6. Also, to the extent that members of the putative class must rely on an exception to Illinois Brick in order to recover, certain defendants contend that the proposed class definition is problematic because “[plaintiffs have never identified any alleged co-conspirators” and “[e]ven if they had attempted to identify the alleged co-conspirators, they are required in this Circuit to be named as defendants in order to invoke the co-conspirator exception to the Illinois Brick doctrine.” Dkt. No. 537 at 21, citing Hess I,
A substantial number of putative class members bought mushrooms from entities that may have been affiliated with EMMC members but are not named as defendants in this case. This would include ... ***** (a downstream affiliate of [M.D.] Bascian[i] & Son[s], Inc.)[,] Buona Foods (a downstream affiliate of Bella Mushrooms); Manfredini Enterprises (a downstream affiliate of LRP mushrooms); and the South-mill distributors in Houston, Dallas, New Orleans and Atlanta.
Defendants’ arguments do not, however, require me to deny elass certification. In the context of plaintiffs’ motion, I find that the questions raised by Illinois Erick—namely, whether the direct purchaser rule or any of its exceptions apply to permit claims against particular defendants under the Clayton Act—are not questions which defeat ascertainability. Instead, they are questions which can be answered by reference to the definition of the putative elass. By definition, the putative class includes only direct purchasers of mushrooms who purchased “directly from an EMMC member or one of its co-conspirators or its owned or controlled affiliates, agents or subsidiaries....” Dkt. No. 517 at 5. Plaintiffs argue it follоws that “the class does not include any indirect purchasers who did not deal with a defendant or one of its controlled co-conspirator distributors.” Dkt. No. 549 at 7.
Indeed, evidence which is common to the elass can be used to answer the question of whether class members made their mushroom purchases directly from those claimed to have violated the antitrust laws with their conduct or, if purchases were made indirectly—whether the purchases qualify for one of the exceptions to Illinois Brick. Ascertaina-bility “does not mean that a plaintiff must be able to identify all class members at elass certification—instead, a plaintiff need only show that ‘class members can be identified.’ ” Byrd v. Aaron’s Inc.,
But it is important to note that for plaintiffs to ultimately prevail on the merits, it will remain their burden to show the direct purchaser rule does not bar their claims against any of the defendants. The Court cannot simply take plaintiffs’ “word for the fact that they bought mushrooms from one of the EMMC members or their ‘affiliates, agents or subsidiaries’ during the time that one of the alleged defendant companies was a member of the EMMC....” Dkt. No. 537. To recover, plaintiffs must prove that the defendants from whom they made purchases were integrated grower/distributors or, if they were not, plaintiffs must answer the question of whether or not distributors who sold mushrooms subject to the conduct of the alleged conspiracy to fix prices and control supply were named as defendants—thus allowing indirect purchaser liability under the co-conspirator exception.
IV. Adequacy and Typicality
Next I consider whether the remaining elements of Rule 23(a) are satisfied: adequacy and typicality. “[T]he analyses of the [typicality and adequacy] elements tend to merge, as they both focus on the extent to which the class representatives have potential conflicts with the class members.” In re Processed Egg Prods. Antitrust Litig.,
Typicality requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The typicality inquiry ensures “that the class representatives are sufficiently similar to the rest of the class—in terns of their legal claims, factual circumstances, and stake in the litigation—so that cеrtifying those individuals to represent the class will be fair to the rest of the proposed class.” In re Schering Plough Corp. ERISA Litig.,
In order to determine whether the typicality and adequacy requirements have been met, I am obliged to consider defendants’ motion seeking either to dismiss or summary judgment in their favor
A. Diversified
In their motion to dismiss or for summary judgment, certain defendants argue that Diversified
Diversified Foods and Seasonings is buying mushrooms that were grown by Kaolin. Kaolin was the grower and Kaolin is the member of the EMMC that signed the EMMC membership agreement. It then transferred those mushrooms to a distributor, South Mill Mushroom Distributor of New Orleans, which sold the mushrooms to Diversified.
Dkt. No. 768 at 25:2-8; see also Dkt. No. 185, ¶ 32 (alleging that defendant Kaolin Mushroom Farms, Inc., a grower, “sold mushrooms ... under the South Mill Label”); Dkt. No. 250, Ex. A. at 2 (explaining that grower Kaolin supplied mushrooms to South Mill Mushroom Sales, who supplied mushrooms to Dallas South Mill Mushroom Distribution, L.P., Houston South Mill Distribution, L.P., South Mill New Orleans, LLC, and Atlanta South Mill Distribution LLC).
Defendants argue that “i[t] cannot be disputed that Diversified is an indirect purchaser that lacks [antitrust] standing to bring this action under the Illinois Brick [d]octrine.” Dkt. No. 441 at 25. They explain that “pursuant to the Court’s Opinion of March 26, 2009, South Mill of New Orleans was not controlled by Defendant South Mill Mushroom Sales, Inc., nor did it have a unity of interest with the Defendant Southmill.” Id. at 25. Certain defendants also argue that because Illinois Brick bars Diversified’s claims, Diversified is not an adequate or typical class representative for purposes of class certification. See Dkt. No. 537 at 23-24.
In their response to the motion to dismiss or for summary judgment, plaintiffs argue that “[b]ecause Diversified was the first purchaser to purchase at a price fixed by the EMMC, its claims do not involve any proof of passed-on damages of the kind barred by Illinois Brick.” Dkt. No. 457 at 12. In plaintiffs’ reply in support of their motion for class certification they argue that “[t]he affiliated distributors would not have any claims against the EMMC members with which they dealt because the EMMC members fixed distribution prices, not the
Plaintiffs have argued that “[t]he South Mill Mushroom Distributor was part of the conspiracy, it was controlled by Kaolin. It participated in that conspiracy.” Dkt. No. 768 at 25:18-20. But because South Mill of New Orleans is not named as a defendant, plaintiffs cannot rely on the co-conspirator exception to permit claims arising from the purchases which Diversified made from it. The question then becomes whether the controls or owns exception applies to permit Diversified’s claims.
At oral argument on class certification plaintiffs also argued that “[t]he defendants previously said, in reality, the grower who is a member of the EMMC and its commonly owned and operated, packaging and distribution entities function as a single economic unit with the EMMC member. In other words, the grower controls the distributor and they operate as one.” Id. at 28:13-19. But, without more, any such prior representation by defendants is not proof of Kaolin’s control. As evidence of control, plaintiffs also point to the EMMC membership agreement in which members such as Kaolin agreed as follows: “Producer expressly represents and warrants that it is now engaged in the production of mushrooms, that it is in a position to control the mushrooms subject to this Agreement and that it will be able to perform according to this Agreement.” Dkt. No. 517, Ex. 4 at 7, ¶ 14 (emphasis added); see Dkt. No. 768 at 26:1-22 (citing the EMMC agreement as evidence “that members of the EMMC like Kaolin control the distributors”). Plaintiffs also rely on the testimony of *****, who was a partial owner of the New Orleans distribution entity. See id. at 149:23-8; Dkt. No. 252, Ex. 41 (***** Dep.) at 8:17-9:13. When asked whether he was “ever informed that [the distribution entity] had to sell based on prices set by the EMMC,” he responded that he “was informed that [he] had to sell based on the prices that were told—were given to [him].” Dkt. No. 252, Ex. 41 (***** Dep.) at 48:1-4. Specifically, he testified that *****, who was at that time a 50% owner of the South Mill distribution entities, communicated the prices at which the distribution entity should sell. Id. at 48:8-13. From this testimony, plaintiff argues that “the prices that the South Mill Distributor had to sell were the prices set by the EMMC and ... as a part of Kaolin’s involvement in the EMMC, the prices at which South Mill had to sell to Diversified were set.” Dkt. No. 768 at 150:9-14.
Defendants respond that “South Mill of New Orleans was not controlled by Defendant South Mill Mushrooms [sic] Sales, Inc., nor did it have a unity of interest with the Defendant Southmill.” Dkt. No. 441 at 25. In support of their contention, defendants point to my March 26, 2009 decision applying Copperweld Corp. v. Independence Tube Corp.,
In my prior decision, I noted that
[w]hile some overlap existed in ownership between the affiliated distributors and the member growers, they were not under common control in the same sense as is a corporation and its wholly-owned subsidiary, a corporation and its divisions or as are two corporations owned in identical proportions by the same set of investors.
In re Mushroom,
Indeed, although in earlier briefing on the Capper-Volstead question plaintiffs argued that “the Thomas distribution entities applied EMMC prices to the sale of mushrooms at all times,” they also posited that “[t]he interests of the Thomas Distribution Entities were sometimes at odds with ***** and Kaolin, and the Kaolin and the Thomas Distribution Entities did not operate as a single economic unit.” Dkt. No. 273 at 13. Plaintiffs explained that “***** and ***** each own 50% of both” Kaolin and South Mill Mushroom Sales, Inc. Id. at 12. “However,” they explained,
four distribution entities related to Kaolin were not 100% owned by the Pias. Instead, ***** ancj *****, through 100% ownership in two companies called Pennsylvania Mushroom Distribution, Inc. and Mushroom Substrate Technologies, Inc., held a 50% ownership interest in the four mushroom distribution companies in Dallas, Houston, New Orleans, and Atlanta.... The remaining 50% ownership interest in the distribution centers was held by Stuart Thomas, through his ownership of Thomas*184 Mushroom Distribution, Inc[.], and Dallas South Mill Inc.
Id. at 13. Plaintiffs noted that “***** and Kaolin even entered into litigation regarding these issues illustrating the diversity of their interests.” Id.; see Dkt. No. 273, Ex. 12 (September 23, 2005 Compl., Dallas S. Mill, Inc. et al. v. Kaolin Mushroom Farms, Inc. et al., N.D. Tx, 05-cv-01890, Dkt. No. 1-1,
[t]he lack of unity of interest [between growers and distributors] is particularly evident with [the] affiliation [between Kaolin and the South Mill distribution centers] as a lawsuit ensued between Kaolin/South Mill and a distribution center. It is hard to imagine how interests could have been congruent and control exercised to constitute ‘one consciousness’ when litigation occurred between the entities.
In re Mushroom,
Now, however, plaintiffs would have me find that Illinois Erick does not bar Diversified’s claims because “there is no threat of duplicative recovery, nor any need to engage in complex theories of apportionment.” Dkt. No. 549 at 9 (emphasis added). I decline to so find. The previous lawsuit between Kaolin and the South Mill Distribution centers with respect to mushroom pricing, Dkt. No. 273, Ex. 12, shows that the concerns voiced in Illinois Brick—multiple lawsuits, double recovery and tracing—would clearly be implicated if Diversified were allowed to proceed with its claims. On the record before me, a reasonable jury could not find that the owns or controls exception to Illinois Brick should apply to permit Diversified’s claims to proceed. Plaintiffs have not established that a genuine dispute remains with respect to the question of whether Diversified has antitrust standing under Illinois Brick. Accordingly, I will grant summary judgment in favor of defendants and against Diversified with respect to Diversified’s claims.
My finding that Diversified may not proceed as a class representative is not disposi-tive of the question of whether plaintiffs have met their burden to establish adequacy and typicality for purposes of class certification. I must consider defendants’ remaining arguments.
B. Associated
Certain defendants also argue that, as a group purchasing organization, Associated Grocers
In support of their argument, certain defendants cite In re OSB Antitrust Litigation, No. 06-826,
Plaintiffs respond that certain defendants have not shown the requisite “functional unity” between Associated and any of its shareholders. Dkt. No. 457 at 9. They argue that no shareholder has been identified “that is Virtually the same entity’ as Associated,” and that
Associated is owned by more than 170 independent grocers who, in turn, own more than 200 grocery stores in Louisiana and Mississippi.... Most of the independent grocers/shareholders own 1% or less of Associated’s common stock.... Only two shareholders own more than 5% of the stock, and no shareholder owns more than 7%.... Associated has its own officers and more than 650 employees; none is also employed by one or more of the shareholders.
Id. They contend that none of Associated’s shareholders “have a significant interest in or functional control over Associated.” Dkt. No. 768 at 34:2-4. To the extent that twelve shareholders who buy from Associated are represented on Associated’s board of directors, plaintiffs argue that “this is not the kind of control that creates an exception to Illinois Brick.” Dkt. No. 457 at 10.
Considering a similar question of whether MARTA, an entity which acted as a nonexclusive purchasing agent for its members “was the direct purchaser,” rather than its members, the Court in In re TFT-LCD (Flat Panel) Antitrust Litig., No. 11-4119,
Here, the chairman of Associated’s board of directors testified that at their meetings Associated’s board considered “the complete management of Associated Grocers”: “personnel issues, ... growth plan issues, ... competitive issues from a wholesaler standpoint, supply issues as it relates to each of the categories in which we purchase.... Pretty much everything—everything that you can imagine when you’re running a company. ...” Dkt. No. 441 at 29, quoting Dkt. No. 441, Ex. H (Roberts Dep.) at 42:13-43:9. This testimony does not support a finding that Associated was subject to functional control by its members, Indeed, certain defendants themselves note that the chairman of Associated’s board of directors “confirmed that the board controls Associate^] Grocers’ business practices.” Dkt. No. 441 at 28(em-phasis added). On the record before the Court, I decline to dismiss or to grant summary judgment in favor of certain defendants with respect to Associated’s claims.
Certain defendants also argue that the inclusion of buying groups such as Associated in the putative class creates an ascertainability issue, as mini-trials will be necessary to determine whether the direct purchaser under Illinois Brick is the buying group or its members. See Dkt. No. 537 at 22. To alleviate any concerns regarding the ascertainability of any class members who are buying
C. Rosenstein and the Robert Companies
Although they have not moved to dismiss their claims, certain defendants also attack the typicality of the claims of Rosenstein and the Robert companies. Dkt. No. 537 at 25. “Rosenstein is a produce wholesaler that purchases mushrooms among other fruits and vegetables for resale to its customers who are located in roughly a 200 mile radius of Scranton, Pennsylvania.” Dkt. No. 549 at 19, citing Ex, 63 (Rosenstein Dep.) at 22:9-21; 31:16-32:7. The Robert companies, plaintiffs M.L. Robert, II, LLC; M. Robert Enterprises, Inc. and Market Fair, Inc.,
Certain defendants argue that Rosenstein and the Robert companies are not typical because they “are small, localized mom-and-pop businesses that do business in tiny corners of a much broader proposed relevant geographic market—the entire non-Western United States.” Dkt. No. 537 at 25; see Dkt. No. 538, Ex. J (Robert 30(b)(6) Dep.) at 95: 18-23 (explaining that the Robert companies “are not a big box, low cost, high volume kind of store. We are more specialty neighborhood stores.... ”). They argue that Rosenstein and the Robert companies are not “typical of the large supermarket chains, pizza chains and food service companies that purchased substantially more than 80% of the agaricus mushrooms sold during the relevant time period.” Id. Certain defendants also contend that Rosenstein and the Robert companies are not typical because they “were largely uninterested in price and made their purchasing decisions on the basis of quality and timely delivery.” Dkt. No. 537 at 25-26. M.D. Basciani echoes certain defendants’ argument in its own argument that “the record reveals putative class representatives who represent a broad spectrum of purchasers with unique and individual business models, specifications, and terns of trade.” Dkt. No. 538 at 30-31.
In support of their argument, certain defendants point to In re Milk Products Antitrust Litigation,
Plaintiffs respond that typicality requires only that:
(1) the claims of the class representative must be generally the same as those of the class in terms of both (a) the legal theory advanced, and (b) the factual circumstances underlying that theory; (2) the class representative must not be subject to a defense that is both inapplicable to many members of the class and likely to become a major focus of the litigation; and (3) the interests and incentives of the representatives must be sufficiently aligned with those of the class.
Id. at 14, quoting Marcus v. BMW of N. Am., LLC,
“The case at bar does not present the same obstacles to class certification that were faced in In re Milk Products.” In re Linerboard Antitrust Litig.,
Thus I find that plaintiffs have met their burden to establish typicality and adequacy under Rule 23(a).
Y. Predominance
In order to certify a class under Rule 23(b)(3), “questions of law or fact common to class members [must] predominate over any questions affecting only individual class members.” Fed. R. Civ. P. 23(b)(3). “[T]he analysis is not a merits determination.” Harnish v. Widener Univ. Sch. of Law,
While commonality and predominance present similar considerations, the Court of Appeals has held that the predominance standard is “far more demanding.” In re Hydrogen Peroxide Antitrust Litig.,
I “must formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate....” Hydrogen Peroxide,
Relevant here, plaintiffs must show that common issues predominate with respect to their ability to prove: (1) a violation of the antitrust laws; (2) antitrust impact from the violation; and (3) measurable damages. See Hydrogen Peroxide,
A. Antitrust Violation
Plaintiffs have shown that сommon issues predominate with respect to the first element—whether there has been a violation of the antitrust laws. They contend they have direct evidence of the antitrust violation “including Defendants’ explicit agreement to fix prices, written price lists, and an express agreement to restrict output.” Dkt. No. 517 at 28. They argue that “[a]ll of the evidence concerning Defendants’ violation of the antitrust laws will focus on Defendants’ conduct” and will include “membership agreements, price lists, pricing policies, minutes of EMMC meetings, e-mails, EMMC newsletters, assessments for the Supply Control Program, EMMC memoranda touting the success of the conspiracy, and testimony from Defendants,” none of which will “raise individual issues.” Id, at 29-30. In opposing class certification, neither certain defendants nor M.D. Basciani dispute plaintiffs’ contention that they will use evidence which is common to the class to demonstrate the antitrust violations which they claim. See Dkt. No. 537, Dkt. No. 538.
“Evidence that [defendants] entered into a conspiracy that would affect all class members would perforce be evidence common to all class members for proving the conspiracy.... However, proof of conspiracy is not proof of common injury.” Blades v. Monsanto Co.,
B. Antitrust Impact
With respect to the second element, plaintiffs must show that it is possible to prove with predominating common evidence that the class members suffered an injury— or impact—from the antitrust violations which they claim.
As the Court of Appeals for the Third Circuit explained in Hydrogen Peroxide:
In antitrust cases, impact often is critically important for the purpose of evaluating Rule 23(b)(3)’s predominance requirement because it is an element of the claim that may call for individual, as opposed to common, proof. Plaintiffs’ burden at the class certification stage is not to prove the element of antitrust impact, although in order to prevail on the merits each class member must do so. Instead, the task for plaintiffs at class certification is to demonstrate that the element of antitrust impact is capable of proof at trial through evidence that is common to the class rather than individual to its members. Deciding this issue calls for the district court’s rigorous assessment of the available evidence and the method or methods by which plaintiffs propose to use the evidence to prove impact at trial.
Plaintiffs claim they were injured because they paid higher prices for fresh agaricus mushrooms than they would have but for the alleged price fixing and supply control conspiracies. In their motion for class certification plaintiffs assert that they “will prove antitrust impact using five types of common proof: (1) the Bogosian shortcut; (2) the nature of Defendants’ conspiracy; (3) the structure of the market; (4) Defendants’ own contemporary observations about the effects of their agreement; and (5) Professor El-hauge’s empirical analyses of prices during the class period.” Dkt. No. 517 at 32; see also Dkt, No. 758 at 7 (arguing that in addition to the Bogosian shortcut, their “evidence of common impact includes Defendants’ horizontal
1. Rule of Reason
Before considering plaintiffs’ proposed proof of impact, I note that it must be considered through the lens of the rule of reason,
Plaintiffs argue that the rule of reason decision “has no effect on class certification” and that “[t]he distinction between the Rule of Reason and the per se rule affects proof of liability. It does not affect proof of impact, ... which [is] at the center of Defendants’ attack on Plaintiffs’ evidence of predominance.” Dkt. No. 758 at 2. But certain defendants argue that “one of Plaintiffs’ proposed common methods of proving class-wide impact,” “the Bogosian presumption,” “is inapplicable to their Rule of Reason claim.” Dkt. No. 754 at 2. They also argue that as a result of the Court’s decision regarding the rule of reason, it is “now apparent that Plaintiffs must prove additional elements of their price fixing claim, notably the relevant product and geographic markets and harm to competition within those markets.” Dkt. No. 754 at 1, see also Dkt. No. 537 at 27, citing Gordon v. Lewistown Hosp.,
I will consider what effect, if any, the rule of reason has on plaintiffs’ proposed proof of impact as I determine whether it may be established at trial through available evidence common to the class.
2. Bogosian Shortcut
First, plaintiffs assert that a finding of predominance is warranted because “this case involves precisely the kind of facts that the Third Circuit has identified as suitable for the Bogosian presumption.” Dkt. No. 758 at 6. In Bogosian v. Gulf Oil Corp.,
If ... a nationwide conspiracy is proven, the result of which was to increase prices*191 to a class of plaintiffs beyond the prices which would obtain in a competitive regime, an individual plaintiff could prove the 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 conspiratorially 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.
Id. at 455 (emphasis added).
Certain defendants contend that the Court should not apply the Bogosian shortcut because it “has been applied only in cases involving alleged per se violations with a clear causal nexus to the harm alleged by the plaintiffs,” and it “does not apply to Rule of Reason claims.” Dkt. No. 754 at 2. Although the cases cited by certain defendants
In arguing that the Bogosian presumption should still guide the Court’s predominance determination after its decision regarding the applicability of the rule of reason to their price-fixing claims, plaintiffs focus on the alleged supply control conspiracy, arguing that “the basic economic laws of supply and demand support application of the shortcut because a reduction in supply will generally cause prices to rise and the shortcut in those circumstances is merely ‘a demonstration of the laws of supply and demand at work.’ ” Dkt. No. 758 at 6, quoting In re Linerboard Antitrust Litig.,
After having decided that plaintiffs’ claims in this litigation do not present a clear case of per se liability, I decline to find that the Bogosian shortcut is on its own sufficient to support a finding that common proof of antitrust impact predominates. Instead, I find that plaintiffs’ “belt and suspenders” approach is required to demonstrate that common questions predominate with respect to the question of antitrust impact—both with respect to their supply control claims and with respect to their price-fixing claims. Cf. In re Linerboard,
3. Nature of the Conspiracy
Beyond the Bogosian shortcut, plaintiffs argue that the nature of the claimed conspiracy, “an express conspiracy .., that was intended to impact all class members,” supports a finding that impact may be proven using evidence which is common to the class. Dkt. No. 768 at 8:16-18. They explain that
[e]very defendant member of the EMMC signed a membership agreement, attended the meetings at which prices were fixed, agreed to sell at fixed prices, paid dues to support the EMMC’s price fixing activities, agreed to buy up and deed restrict mushroom farms to prevent them from being put into production, and made contributions to pay for the farm purchases.
Dkt. No, 772 at 6, In support of their position, plaintiffs cite the EMMC’s “comprehensive price lists” which identified “particular circumstances in which the EMMC members were allowed to depart from the prices on the price list” and its “elaborate system of monitoring and enforcement” which allowed the EMMC “to audit members ... to make sure they were complying with both the price list and the policies,” Dkt. No, 768 at 47:24-48:25; see also Dkt, No. 517, Ex. 2 (Elhauge Rpt.) at ¶¶ 20-32. It has been held that evidence of a standardized pricing structure “presumably establishes an artificially inflated baseline from which any individualized negotiations would proceed [and] provides generalized proof of class wide impact,” In re Urethane Antitrust Litig.,
Certain defendants describe the evidence cited by plaintiffs as, “at best .,. background or supporting evidence ...and argue that it “is not itself sufficient to prove that any purchaser was in fact injured.”
As support for their argument that the nature of the conspiracy cannot support a finding of impact, certain defendants cite In re Plastics Additives, No. 03-2038,
That is not necessarily the case here. Certain defendants contend that Dr. Johnson demonstrated that “the actual sale prices of frеsh mushrooms during the so-called class period bear no relationship to the EMMC’s minimum price lists.” Dkt. No, 537 at 38. However, plaintiffs contend that Professor Elhauge’s analyses “show sharp price spikes when both price lists were introduced.”
Defendants ultimately argue that “Plaintiffs’ use of the ‘nature’ of the challenged conduct as a means of proving common impact ... fails because Plaintiffs are unable to prove that the alleged conspiracy succeeded.” Dkt. No. 537 at 38-39 (emphasis added). “But the [predominance] analysis is not a merits determination.” Harnish v. Widener Univ. Sch. of Law,
4. Structure of the Market
Plaintiffs also argue that “the structure of the market ... made it likely that the conspiracy would impact all or almost all of [the putative] class members.” Dkt. No. 768 at 8:18-20. More specifically, they contend that a showing of impact which is common to the putative class can be anticipated because fresh agaricus mushrooms are a commodity product in a concentrated geographic market with high barriers to entry where the EMMC and its members held dominant market shares. See Dkt, No. 517 at 37. “Many courts have accepted market-structure analy-ses in finding predominance with respect to antitrust impact.... However, before accepting such an analysis, the Court must be persuaded that the market-structure factors identified by the plaintiffs’ expert do, in fact, exist.” In re Blood Reagents Antitrust Litig., No. 09-2081,
i. Commodity
Plaintiffs argue that a finding that common issues predominate is supported because the market for fresh agaricus mushrooms “is a market for interchangeable commodity products. ...”
Unsurprisingly, certain defendants respond that “[f]resh agaricus mushrooms, far from being pure commodity products, can actually vary widely in terms of quality, size, packaging, specifications and value-added services such as slicing and washing.” Dkt. No. 537 at 39, citing Dkt. No. 537, Ex. 2 (Johnson Rpt.) at ¶34. Their expert concludes that “the existence of detailed minimum prices imply a substantial degree of differentiation in mushroom products” and opines that “if these Agaricus mushrooms were commodities, there would be no reason for the cooperative to determine individual prices by product type, grade, package and region.” Dkt. No. 537, Ex. 2 (Johnson Rpt.) at ¶ 46. Dr. Johnson opines that “[b]ecause different products had different mínimums over time ... one cannot determine whether any particular customer paid a supra-competitive price simply by the existence of the mínimums. Instead, an inquiry into the price paid by each customer for each mushroom product that appeared on the price list is required,” arguably supporting a finding that common issues do not predominate. Id. at ¶48. Echoing the other defendants, M.D. Basciani argues that the case involves “fresh agaricus mushroom products at the wholesale level, which are not commodities” because they “are differentiated horizontally (types, grades, quality, packaging, and shop-keeping units) and vertically (quality, service, and terms of trade).”
Professor Elhauge responds that “agaricus mushrooms are commodities within each size and type, and so specifying a minimum price for all sizes and types was enough to implicitly establish the minimum price for every combination of size and type.” Dkt. No. 517, Ex. 53 (Elhauge Reply) at ¶ 42 (emphasis in original). He opines that “[t]o the extent that mushroom products are differentiated across different combinations of size, type and other characteristics ... an economist can systematically control for that using a separate fixed-effects variable for each customer to systematically control for the extent to which some customers tend to pay higher or lower prices than others for the same mushrоom items.” Id. at ¶ 69.
For purposes of the instant motion, I credit Professor Elhauge’s conclusion that the
ii. Geographic Market
Certain defendants argue that because plaintiffs’ price fixing claim will be decided under the rule of reason, it is plaintiffs’ burden on class certification “to show the contours of the relevant geographic market and harm to competition within that market.”
Plaintiffs argue that nothing about my decision to apply the Rule of Reason to plaintiffs’ price fixing claim affects their arguments about the geographic market. Dkt. No. 758 at 9-10. They maintain that the relevant market “should not be decided as a matter of class certification.” Id. at 9. Instead, they argue that “market definition is an element of Plaintiffs’ liability case in a Rule of Reason Case” and contend that “[i]f that definition fails, it fails as to all Plaintiffs.” Id. at 5 (emphasis added).
Very predictably, plaintiffs’ expert and defendants’ experts disagree with respect to the scope of the relevant geographic market.
Certain defendants argue that Professor Elhauge’s opinion cannot support a finding of predominance because it “amounts to mere speculation” and is based on “a shallow foundation in the record facts and no empirical analysis whatsoever....” Dkt. No. 754 at 6. They contend that “the record evidence,” including the conclusions of their expert, Dr. Johnson, “indicates that purchasers of fresh Agaricus mushrooms shop within regional markets.”
In response, plaintiffs assert that “[i]f the jury agrees with Professor Elhauge that the market is in the non-Western United States[,] ... an excess of ***** percent of that market is controlled by the EMMC and its members ...,” which “suggests that all or almost all the class members purchasing in that market were affected by the price fixing-agreement,” Dkt. No. 768 at 54:16-25. Plaintiffs contend that Professor Elhauge
explained that the claim about regional submarkets was economically irrelevant to the existence of impact because: (1) his regression analysis specifically controlled for differences in geographic location; (2)*197 the EMMC’s price lists applied in every region; and (3) to the extent that the geographic market was too broad[,] it would only serve to understate Defendants’ market power.
Diet. No. 758 at 12, citing Dkt. No. 517, Ex. 63 (Elhauge Reply) at ¶ 106; and Dkt. No. 549 at 37. They also assert that “even if some analysis of the various regions were appropriate, the evidence still shows that the EMMC’s conduct was likely to have had an effect on increasing prices in each region,” as the EMMC price lists “specifically set different prices for different regions.... ” Dkt. No. 758 at 10-11. Further, plaintiffs argue that with respect to the supply control allegations, which are not subject to the rule of reason, the alleged conspiracy “limited supply in the entire market and further supports the conclusion that all or almost all class members were impacted by Defendants’ conduct.” Id. at 11.
For purposes of class certification, the question that matters is whether common evidence can be used to define the relevant market, not the secondary question of what issues might arise if the relevant market is not found to be the non-Westem United States (i.e., if there are regional submarkets). “Rule 23(b)(3) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds,
I decline to adopt certain defendants’ position that plaintiffs cannot establish predominance because there are varied regional markets for fresh agaricus mushrooms rather than the market put forward by Professor Elhauge.
iii. Vertical Agreements
Certain defendants argue that, “[u]nder the rule of reason, Plaintiffs are obligated to prove separate vertical agreements either between the mushroom distributors and their affiliated growers or between the distributors and the EMMC, and then to prove that each of those agreements harmed competition within each relevant product and geographic market.”
For the reasons set forth above, I do not agree with plaintiffs’ contention that there are no Illinois Brick issues in this case. Instead, I find that under Illinois Brick, membership in the class is limited to those who made their purchases through distribution chains which are fully integrated or which meet either the co-conspirator exception or the owns or controls exception. I must, therefore, consider certain defendants’ argument that the need to consider the nature and effect of the grower-distributor relationships destroys predominance.
Certain defendants argue that “Plaintiffs must clearly explain how they plan to show at trial how [the] non-defendant distributors joined the alleged conspiracy.” Dkt. No. 754 at 34. They argue that
even for the distributors Plaintiffs did name as defendants, Plaintiffs will have to show, for each grower-distributor pair: (a) whether the price at which the distributor sold was affected by the EMMC price policy in each regional relevant market; (b) that no sales took place between them that would lead to a pass-through issue under Illinois Brick, (c) how each distributor entered into an agreemеnt with its affiliated grower and/or other members to restrain trade, and (d) how that agreement harmed competition within the relevant market.
Id
In support of their argument that the grower-distributor relationships bar a finding of predominance, certain defendants cite In re Fine Paper Antitrust Litigation, a case where the Court of Appeals affirmed the district court’s denial of class certification to a group of purchasers alleging a horizontal conspiracy among paper mills and vertical conspiracies between the mills and merchants that sold paper.
[t]he common issue here, whether there was a horizontal conspiracy among the mill defendants, easily could be overwhelmed by the separate proof required to establish that each individual independent merchant had participated with the mills in an individual vertical conspiracy. Proof as to vertical conspiracy would vary among the class members, depending on the identity of the merchants from whom the respective government entities purchased their paper.
Id. Certain defendants also cite In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation,
[p]roof of a close conformity between wholesale and retail prices is insufficient to establish a vertical conspiracy claim on a class-wide basis. Absent common evidence of standard contracts that demonstrate control over the retail dealers’ pricing decisions or some other readily demonstrable and equally convincing evidence, individual issues will predominate and render class treatment inappropriate.
Id. It found that plaintiffs had not met their burden to show that their proposed classes satisfied the requirements of Rule 23 where they had “failed to suggest any acceptable method of demonstrating on a class basis that the individual retail dealers lacked pricing discretion....” Id.
Here, unlike in Fine Paper or Petroleum Products, I do not find that factual variations among the distributor/grower relationships require that I deny certification under Rule 23(b)(3). “[C]lass actions have been certified where the relationship among defendants was vertical as well as horizontal.” Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc.,
a vast difference between horizontal conspiracies involving a standardized product sold at a standardized price, and the unique vertical contracts that existed ... between pipe suppliers of different levels and functions, custom pipe fabricators, general contractors, engineers, agents and owners dealing with custom-designed, cus-tombuilt manufacturing plant installations having no standard price.
Id. at 74. The Court, however, found that “the gravamen of the complaint [was] the conspiracy, not individual injury....” Id. at 76. It explained that “if the alleged conspiracy caused artificially high price levels to prevail in the specialized steel piping industry when such pipe was sold on a cost plus basis, the existence of this conspiracy could constitute proof of injury to the class of purchasers of such piping.” Id. at 74. Ultimately, the Court found “that proof of impact as to each member of the Plaintiffs’ class could be made in a generalized manner, and that it would not be necessary at the trial on liability for each member of the class to prove this factor on an individual basis....” Id. at 75. “[T]he alleged interlocking nature of the scheme” lent support to a conclusion that the “[plaintiffs’ evidence would have class-wide application.” Id. But see In re New Motor Vehicles Canadian Exp. Antitrust Litig.,
Here, plaintiffs’ claims of impact do not depend on the makeup of the intervening market between the growers and the distributors, See Package Shop, Inc. v. Anheuser-Busch, Inc., No. 83-513,
5. Defendants’ Observations
In support of their claim that common issues predominate, plaintiffs also point to documents in which “the members of the EMMC recognized that their agreement was impacting all or almost all of the class members.” Dkt. No. 768 at 8:20-25. For example, plaintiffs cite a document titled “EMMC Accomplishments” which reported that “cooperative pricing raised average industry per pound prices from *****.’’ Dkt. No. 517 at 39, citing Dkt. No. 517, Ex, 18, EMMC-DOJ-0090 (also claiming to have “[ajnnually taken over ***** million pounds out of production from facilities which could have easily been purchased and remained in production”). They point to a December 27, 2004 email from the EMMC’s executive director which includes an estimate that “****•*” of the EMMC’s total volume of mushrooms sold was “in compliance with our agreed upon pricing and policies.” Dkt. No. 617 at 40, citing Dkt. No. 517, Ex. 49, Giorgi 00000197. They also cite an email from ***** to the members of the EMMC in which he wrote, “I think everybody agrees that we’ve won a lot of battles in the last 9 months in the area of supply management.... [T]he farm closings have resulted in ***** million pounds being taken off the market.” Dkt. No. 517 at 40, n.69, citing Dkt. No. 517, Ex. 58, CREEK-RFP-0000502.
Certain defendants argue the documents cited by plaintiffs are “incapable of showing that all, or if not all, which putative class members were injured,” and “there is good reason to doubt the accuracy of the EMMC members’ statements” in the documents cited by plaintiffs. Dkt. No. 537 at 41. But any such doubt is not sufficient to dissuade me from finding that there are more questions common to the class than individual questions when it comes to the issue of antitrust impact. “Of course,” as the Court explained in In re Processed Egg Products Antitrust Litigation,
6. Professor Elhauge’s Empirical Analysis
Finally, plaintiffs contend that Professor Elhauge’s quantitative analysis supports the conclusion “that all or nearly all class members suffered an impact from Defendants’ price fixing and supply control efforts.” Dkt. No. 758 at 11; see also Dkt. No. 517 at 41. They explain that
[t]o establish common impact, Professor Elhauge relied on: (1) the nature of the agreement and market structure; (2) his before-and-after analysis showing that*201 ***** of customers suffered a price spike of more than ***** -within ***** of the EMMC’s first or second price list; (3) the fact that ***** of buyers bought at prices that complied with the EMMC’s minimum price lists in every month that the first fixed-price list was in effect; and (4) his individual regression analysis.
Dkt. No. 549 at 45; see also Dkt. No. 772 at 5 (citing “his average effects regression, individual regrеssions, before and after pricing analyses, and supply control model”
I am required to weigh Professor Elhauge’s analysis (which I have already found to be admissible under Daubert, see Dkt. Nos. 693, 694, 718, 719) and determine whether it supports a finding that plaintiffs’ theory of impact is susceptible to proof at trial through available evidence common to the class. “Rule 23 not only authorizes a hard look at the soundness of statistical models that purport to show predominance—the rule commands it.” In re Rail Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869,
i. Professor Elhauge’s Regression Analysis
“Courts frequently recognize that regression analysis can be used to isolate the effect of an alleged conspiracy on price, taking into consideration other factors that might also influence price, like cost and demand.” Processed Egg,
Certain defendants argue that Professor Elhauge’s average effects regression “is legally insufficient to show antitrust impact” because it generates an “average overcharge” which “is legally insufficient to meet the requirement of proving fact of damage for every class member....” Dkt. No. 537 at 45 (internal quotations omitted).But the Supreme Court has held that “[a] categorical exclusion of [representative evidence] ... would make little sense. A representative or statistical sample, like all evidence, is a means to establish or defend against liability.” Tyson Foods, Inc. v. Bouaphakeo, — U.S. -,
In support of their argument that Professor Elhauge’s average effects regression is not enough, certain defendants cite In re Plastics Additives, No. 03-2038,
But even if Professor Elhauge’s average effects regression analysis does not, on its own, support a finding of common impact, it may be used, as plaintiffs argue, to “confirm the existence of common impact by observing the aggregate effect of those prices at a customer level.” Dkt. No. 535 at 19 (Pls.’ Daubert Opp’n Mem,); cf. In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-1175,
Here, unlike in Plastics Additives, Professor Elhauge has supported his opinion with more than an industry-wide regression. Cf.
In contrast, in Plastics Additives, the defendants’ expert (and not, like here, the plaintiffs’ expert) ran individual regressions for “the subset of customers that purchased [one category of] products in both the conspiracy and the post-conspiracy periods” and found that of those 115 customers (representing 86% of the volume purchased during the conspiracy period), “only 34 ... showed evi
Certain defendants criticize Professor El-hauge’s analysis because his “individual-level regressions showed some plaintiffs did not experience a statistically significant increase in price.”
I agree with plaintiffs that a finding of predominance is not foreclosed by the possibility that there may be uninjured class members. See Kleen Prods. LLC v. Int’l Paper Co.,
Defendants also fault Professor Elhauge’s regression analyses because the “dataset used in the average overcharge and individual regressions includes only 11 of 27 defendants, and *****% of proposed class members”
Also in support of his conclusion that there was a common impact, Professor Elhauge performed a before and after price comparison
Certain defendants argue that Professor Elhauge’s price increase chart “only shows that some purchasers paid some increases in prices for some products” and “[s]uch analysis cannot prove that each purchaser was harmed by the defendants’ practice.” Dkt. No. 537 at 43 (internal quotation omitted). They also contend that the chart is faulty because it “does not, and cannot, control for other factors that may have affected prices.” Id. They argue that there are “no control variables in” this analysis, and “that prices rose does not in itself demonstrate antitrust impact,” but rather, prices could have risen for “other reasons.” Dkt. No. 768 at 128:4-8. Certain defendants contend that “there is a serious cherry picking problem here[, because theref i]s no comparison with prices that decreased. There[ i]s no comparison to ... anything that we rigorously demand in a regression model....” Id. at 128:11-15. They contend that their expert, Dr. Johnson, points to “large purchasers [who] are putative class members who had no increase in price ... whatsoever,” but Professor El-hauge “omits these people from his [before and after price] chart.” Id. at 128:18-129:1.
I agree that “the fact that prices rose does not, in and of itself, demonstrate antitrust impact—at trial, plaintiffs must show that they experienced price increases that resulted from anticompetitive conduct. However, a showing that prices behaved similarly across groups of customers contributes to a finding of predominance at the certification stage.” In re Blood Reagents Antitrust Litig., No. 09-2081,
ii. Professor Elhauge’s Supply Control Model
In opposing class certification, certain defendants аlso fault Professor Elhauge’s supply control model as being “unable to show whether or not any class member in fact incurred an ‘overcharge’ ” as a result of the deed restrictions because it is “a purely theoretical construct, based on counter-factual assumptions.” Dkt. No. 537 at 48. They argue that “[t]he most such a model could show is the potential for injury, not the fact of injury.” Id. at 49 (emphasis in original). Plaintiffs respond that the purpose of Professor El-hauge’s supply control model is not to show “whether or not any class member in fact incurred an overcharge,” but rather to provide “an alternate damage calculation that isolates the effects of Defendants’ Supply Control Program.” Dkt. No. 549 at 47, citing Dkt. No. 517, Ex. 53 (Elhauge Reply) at ¶384, They argue that Professor Elhauge explained that “the Supply Control Program would impact all or nearly all class members because the reduction in output caused a market wide change in the intersection of supply and demand” and “[t]he resulting effect on prices ... is thus systemic, affecting the prices received by all buyers in the market....” Dkt. No. 549 at 47, citing Dkt. No. 517, Ex. 2 (Elhauge Rpt.) at ¶ 120 (internal quotations omitted). Plaintiffs argue that with respect to proof of impact “in cases involving supply restrictions,” application of the Bogosian shortcut is appropriate because “the presumption of impact is merely ‘a demonstration of the laws of supply and demand at work.’ ” Dkt. No. 549 at 47-48, quoting Linerboard,
I agree with plaintiffs that defendants’ argument regarding Professor Elhauge’s supply control model is not sufficient to defeat a showing of predominance. In In re Processed Egg Products Antitrust Litigation,
Ultimately, I conclude that plaintiffs have met their burden to show that common issues predominate with respect to the question of whether they suffered an antitrust injury. On the record before me, any factual questions with respect to impact which must be decided individually for different class members do not outweigh the questions which are common to the class.
C. Antitrust Damages
I am also convinced that plaintiffs have met their burden to demonstrate that common questions predominate with respect to the element of measurable damages. “The predominance requirement applies to damages as well, because the efficiencies of the class action mechanism would be negated if ‘[questions of individual damage calculations ... overwhelm questions common to the class.’ ” In re Modafinil Antitrust Litig.,
“Plaintiffs must show that there is a reliable means for measuring damages with reasonable accuracy in the aggregate.” Processed Egg,
Certain defendants assert that with Professor Elhauge’s analysis, plaintiffs propose “to simply ask the jury to award an aggregate amount and then burden the Court with an as-yet-undefined procedure for a ‘later damages phase’ to determine (a) which purchasers are in fact entitled to damages, and (b) how much,” Dkt. No. 537 at 54. They argue that because plaintiffs have not proposed “a method of identifying which Plaintiffs should receive damages, let alone how much,” their proposed proof of damages is insufficient to support class certification. Id. But I “rejeet[] Defendants’ arguments premised on the notion that variation of damages between and among class members defeats predominance.” Processed Egg,
Certain defendants also fault Professor Elhauge’s regression models because they “measure only a global average difference in price between the ‘control’ period and the alleged ‘conspiracy’ period” and “do not attempt to quantify the impact (if any) of the various vertical agreements between any grower and its distributors,” Dkt. No. 754 at 35. They argue that “[i]f the Court or the jury finds that any of the vertical arrangements at issue did not constitute a ‘meeting of the minds’ or harm competition within the relevant market, Plaintiffs have offered no means of determining what, if any, price effect they caused or of backing that effect out of their proffered aggregate damages figure.” Id. at 36. They contend that “if even one of the approximately 16 vertical relationships is found not to have violated the Sherman Act,” a “class-wide trial .., would ultimately be futile.” Id. Certain defendants argue that “[a]n appropriate class-wide damages model ‘must measure only those damages attributable’ to the theory of wrongdoing and cannot include ‘damages that are not the result of the wrong.’ ” Dkt. No. 754 at 35, quoting Comcast,
I agree that plaintiffs’ damages model must “measure damages resulting from the particular antitrust injury on which [defendants’] liability in this action is premised.” Comcast,
Ultimately, I find that Professor Elhauge has set forth “statistically feasible methods
VI. Superiority
The final requirement for class certification pursuant to Rule 23(b)(3) is that a сlass action be “superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). “The ‘superiority1 requirement asks whether a case is better brought as a class action or in an alternative form of litigation, such as individual lawsuits.” Processed Egg,
Plaintiffs argue that “[g]iven the abundance of common questions of law and fact [in this litigation], the class action device is far superior to, and more efficient than, any other procedure available for resolving the factual and legal issues raised by Plaintiffs’ claims.” Dkt. No. 517 at 62. They contend that “a class action will be significantly more manageable than thousands of individual actions.” Id. at 53. Certain defendants do not contest plaintiffs’ superiority arguments. M.D. Basciani disputes superiority on the basis of its arguments regarding common impact and damages. Dkt. No. 638 at 39. Because I am not persuaded by defendants’ arguments regarding common impact and damages, I find no reason to disagree with plaintiffs’ contention that a class action is the superior device for l’esolving the claims in this litigation.
CONCLUSION
Consistent with all of the above, I will grant plaintiffs motion for class certification and I will certify the following class, finding that it meets the requirements set forth in Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure:
all persons and entities in the non-Western United States who purchased fresh agaricus mushrooms directly from an Eastern Mushroom Marketing Cooperative (EMMC) member or one of its co-conspirators or its owned or controlled affiliates, agents, or subsidiaries at any time between February 4, 2001 and August 8, 2005 (the “Class Period”). For group buying organizations and their members, direct purchasers are either: (1) members who have a significant ownership interest in or functional control over their organizations; or (2) if no member has such interest or control, the organizations themselves. The Class excludes the EMMC, its members and their parents, subsidiaries and affiliates.
The non-Westem United States refers to the following states which were in the six regions of the country which plaintiffs claim were subject to the EMMC’s pricing policies: Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Florida, Tennessee, Alabama, Mississippi, Arkansas, Louisiana, Wisconsin, Minnesota, Iowa, Kansas, Nebraska, Colorado, Oklahoma, Texas, Ohio, Missouri, Michigan, Indiana, Kentucky, West Virginia, Illinois and the District of Columbia.
I will appoint the following plaintiffs as the representatives of the Class: Wm Rosenstein & Sons Co.; Associated Grocers, Inc.; M. Robert Enterprises, Inc., M.L. Robert, II, L.L.C.; and Market Fare, LLC.
Finally, I will grant in part and deny in part the motion by certain defendants to dismiss, or in the alternative for summary judgment, with respect to the claims brought by plaintiffs Diversified Foods and Season-
An appropriate Order follows.
Notes
. Publix Supermarkets, Inc. and Giant Eagle, Inc. are opt-out plaintiffs. Further references to "plaintiffs” in this opinion do not encompass the opt-out plaintiffs.
. The non-Western United States refers to the following states which plaintiffs claim were subject to the EMMC’s pricing policies: Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Florida, Tennessee, Alabama, Mississippi, Arkansas, Louisiana, Wisconsin, Minnesota, Iowa, Kansas, Nebraska, Colorado, Oklahoma, Texas, Ohio, Missouri, Michigan, Indiana, Kentucky, West Virginia and Illinois, and the District of Columbia. Dkt. No. 517 at 4 n.5.
.Now before me with respect to the question of class certification are the following: (1) plaintiffs' motion for class certification and memorandum of law in support thereof, Dkt. Nos. 514 and 517; (2) certain defendants’ memorandum in opposition ("certain defendants" are identified in footnote 4, infra.), Dkt. No. 537; (3) defendant M.D. Basciani and Sons Inc.’s Opposition, Dkt. No. 538; (4) defendant Franklin Farms’ joinder in the oppositions of certain defendants and M.D. Basciani, Dkt. No. 541; (5) defendant JM Farms’ joinder in M.D. Basciani's opposition, Dkt, No. 542; (6) defendant Mario Cutone's joinder in the oppositions of certain defendants and M.D. Bas-ciani, Dkt. Nos. 545 and 546; (7) plaintiffs’ reply; Dkt. No. 549; (8) a letter from plaintiffs regarding In re Nexium, Dkt. No. 621; (9) a letter from certain defendants regarding In re Blood Reagents Antitrust Litig., Dkt. No. 655; (10) plaintiffs' notice of supplemental authority, Dkt. No. 738; (11) defendant M.D. Basciani’s response to plaintiffs’ notice of supplemental authority, Dkt. No. 750; (12) certain defendants’ supplemental memorandum of law in opposition to class certification in light of the Court's rule of reason decision, Dkt. Nos. 754 and 755; (13) plaintiffs' response to certain defendants' supplemental opposition to class certification, Dkt. No. 758; (14) the transcript from the June 18, 2016 oral argument on the motion for class certification, certain defendants’ motion to dismiss, or in the alternative for summary judgment against plaintiffs Diversified Foods and Seasonings, Inc. and Associated Grocers, Inc. and defendant M.D. Basciani’s motion for summary judgment, Dkt. No. 768; (15) certain defendants' joinder in M.D. Basciani's response to the direct purchaser class plaintiffs’ notice of supplemental authority, Dkt. No. 770; (16) plaintiffs' notice of supplemental authority regarding Kleen Prods. v. Int'l Paper Co., No. 15-2385, Dkt. No. 772; (17) certain defendants' notice of supplemental authority for Harnish v. Widener Univ., Dkt. No. 773; (18) plaintiffs' response to certain defendants’ notice of supplemental authority, Dkt. No. 774; (19) certain defendants’ letter re: Wallach v. Eaton Corp., No. 15-3320, Dkt. No. 775; (20) a notice of supplemental authority regarding the September 6 and September 8, 2016 decisions in In re Processed Egg Prods. Antitrust Litig. filed on behalf of the following defendants: EMMC, Robert A. Feranto, Jr. Va Bella Mushroom Farms, Inc.; To-Jo Fresh Mushrooms, Inc.; Country Fresh Mushroom Co.; Gaspari Mushroom Co., Inc.; Kaolin Mushroom Farms, Inc.; Sher-Rockee Mushroom Farm, LLC; C & C Carriage Mushroom Co.; Oakshire Mushroom Farm, Inc.; Phillips Mushroom Farms, Inc., Louis M. Mar-son, Jr., Inc.’ Monterey Mushrooms, Inc.; and John Pia, Dkt. No. 776; and (21) plaintiffs’ response to Dkt. No, 776, Dkt. No. 777.
. Among the defendants opposing class certification are "certain defendants”: the Eastern Mushroom Marketing Cooperative (EMMC), Robert A. Feranto, Jr„ t/a Bella Mushroom Farms; Brownstone Mushroom Farms, Inc.; Brownstone Farms, Inc.; Brownstone Mushroom Farm; To-Jo Fresh Mushrooms, Inc.; Cardile Mushrooms, Inc.; Cardile Bros. Mushrooms Packaging; Country Fresh Mushroom Co.; Forest Mushroom Inc.; Gino Gaspari & Sons, Inc.; Gaspari Mushroom Co., Inc.; Gaspari Bros., Inc.; Kaolin Mushroom Farms, Inc.; South Mill Mushroom Farms, Inc.; South Mill Mushroom Sales, Inc.; LRP Mushrooms, Inc. LRP-M Mushrooms LLC; Modern Mushroom Farms, Inc.; Sher-rockee Mushroom Farm, LLC; C & C Carriage Mushroom Co.; Oakshire Mushroom Farm, Inc.; Phillips Mushroom Farms, Inc.; Louis M. Marson Jr., Inc.; Monterey Mushrooms, Inc.; United Mushroom Farms Cooperative, Inc.; John Pia; and Michael Pia. Dkt. No. 537. M.D. Basciani has filed a separate opposition to plaintiffs’ motion for class certification. Dkt. No. 538.
. Also before me with respect to the motion to dismiss are plaintiffs' opposition, Dkt. No. 457, and certain defendants’ reply. Dkt. No. 462.
As filed, this motion also sought to dismiss the actions filed by Meijer, Inc. and Meijer Distribution, Inc. (Civ. A. No. 06-0677); Theodore J. Katsiroubas and Sons, Inc. and Native Maine Produce and Specialty Foods, LLC (Civ. A. No.
. Also pending is a motion for summary judgment by defendant M.D, Basciani & Sons, Inc., Dkt. No, 518, which will be decided separately.
. In opposing class certification, certain defendants again assert that “before adopting its minimum pricing policy or its supply control program, the EMMC and its members relied in good faith on the advice of counsel that the EMMC was properly formed in accordance with the requirements of the Capper-Volstead Act,” which "exempts agricultural cooperatives and their members from price fixing claims under § 1 of the Sherman Act," Dkt. No. 537 at 7-8, In support of their position, they note the United States Department of Justice Antitrust Division filed a Competitive Impact Statement following its 2003 investigation of the EMMC which concluded, inter alia, that EMMC was an agricultural cooperative organized pursuant to Capper-Volstead. See United States v. E. Mushroom Mktg. Coop., Inc., No. 04-5829,
I decline to deny plaintiffs’ motion for class certification on the basis of certain defendants' Capper-Volstead argument. The DOJ’s finding does not bind this Court and I have previously considered and rejected defendants’ contention that the EMMC and its members are exempt from antitrust liability under Capper-Volstead, See In re Mushroom Direct Purchaser Antitrust Litig.,
Also, in 2011 defendants asked the Court of Appeals for the Third Circuit to review this
. In other words, the EMMC circulated prices and pricing policies for mushroom sales from the middle layer of the cake—distributors—to the cake's bottom layer—purchasers.
. In 2005, the EMMC and the DOJ entered into a consent judgment prohibiting the EMMC from placing deed restrictions on parcels sоld for a ten year period and requiring the EMMC to nullify the deed restrictions on six parcels it had sold. U.S. v. E. Mushroom Mktg. Coop., No. 04-5829,
. I denied defendants’ motions to exclude Professor Elhauge's expert opinions on July 29, 2015. See Dkt. Nos. 693, 694. 718. 719.
. I denied plaintiffs’ motion to exclude Dr. Johnson’s expert opinion on August 11, 2015. See Dkt. Nos. 709, 710, 744, 748.
. I ordered that Dr. Lopez’s report should be excluded as unreliable only to the extent he improperly uses actual output data to rebut Professor Elhauge’s but-for price and output analysis and that it should be excluded to the extent that he opines on the legal conclusion of whether the class should be certified. See Dkt. Nos. 733 & 734.
. M.D. Baseiani gives me no reason to find that the number of customers used by either Professor Elhauge or Dr. Johnson in preparing their expert reports is so inaccurate as to render the putative class insufficiently numerous for purposes of certification. See Dkt. No. 538 at 29.
. To continue with the "cake" analogy, pursuant to Illinois Brick, parties on the bottom layer of the cake can only recover for antitrust violations committed by parties in the middle layer of the cake, unless it can be established that one of the exceptions to Illinois Brick applies with respect to the relationships between the parties in the cake’s top layer and its middle layer.
. "[P]assing on refers to the process whereby a member of the distributive chain who has been overcharged (or even undercharged) adjusts its prices to reflect that overcharge (or undercharge).” In re Mid-Atl. Toyota Antitrust Litig.,
. "The antitrust standing inquiry seeks to determine whether the plaintiff is a proper party to bring a private antitrust action.” Animal Sci.,
. In their opposition to certain defendants’ motion seeking dismissal and/or summary judgment with respect to certain class representatives, plaintiffs argue that because their "case does not involve a pass-on, it is subject to the general rule that horizontal conspirators are jointly and severally liable for damages caused by their conduct, and plaintiff need not sue all members of the conspiracy to recover all damages caused by its conduct.” Dkt. No. 457 at 13. First, I am not prepared to adopt plaintiffs’ view that there is no pass-on absent further consideration of the relationships between the mushroom growers and their distributors involved in this litigation.
Further, although plaintiffs cite a number of cases in support of their argument (without any parenthetical explanation), Dkt. No. 457 at 13, review of the cited cases shows that, while they indeed stand for the proposition that all co-conspirators need not always be named as defendants, none of the cаses address the specific question of whether co-conspirators must be named as defendants in the context of a case involving application of the Illinois Brick direct purchaser rule. See Am. Motor Inns, Inc. v. Holiday Inns, Inc.,
Accordingly, I decline to conclude that plaintiffs need not name a distributor as a defendant in order to permit their claims to proceed when the distributor from whom they purchased mushrooms was neither integrated with nor owned or controlled by the EMMC member who supplied the mushrooms which it sold.
. Plaintiffs do not set forth evidence illustrating the relationships between the growers and distributors which allowed the growers to control mushroom prices at the distribution level in their motion for class certification. Questions about these relationships remain. For example, for at least one such distributor, Buona, who distributed mushrooms for EMMC member defendant Bella, there is testimony that when Bella sold mushrooms to Buona, the price was determined as a "[wjilling buyer, willing seller” price. Dkt. No. 252, Ex. 22 (***** 30(b)(6) Dep.) at 22:4-5. Asked if this meant "just a market price,” Bella’s designee answered, “[pjossibly.” Id at 22:6-8. There is also testimony of record that "the two companies are completely separate companies.” See id. at 17:17-18:8. ("Q. Would it be fair to say that—that the two companies—are completely separate companies? A. Yes. Q. And that they have separate tax returns? A. Yes, sir. Q. And they have separate bank accounts? Yes, sir. And they have separate employees, different employees? A. Yes, sir. Q. And they have their own separate financial statements? A. Yes, sir.”). However, there is also testimony that the partners in Bella overlapped with the owners of Buona. See id. at 9:13-10:21.
. Dismissal is warranted for "failure to state a claim upon which relief can be granted” pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure "where the well-pleaded facts do not permit the court to infer more than the mere
. Diversified uses mushrooms in "[j]ust one sauce. In a sauce.... It’s a duck sauce” that is typically sold "[t]o a restaurant.... Copeland’s Restaurant New Orleans.” Dkt. No. 755, Ex. 7 (Dziadon 30(b)(6) Dep.) at 22:19-23:10.
. In their motion to dismiss or for summary judgment, certain defendants also argue that Diversified should be dismissed because it failed to produce an adequate witness pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 441 at 21, At oral argument, plaintiffs argued that "this really seems to be just some kind of discovery dispute that had they raised it with us during the discovery period, we could[ hajve provided another person, they could[ halve asked for the other person and he would[ halve been deposed.” Dkt, No. 768 at 38:3-7. Counsel for certain defendants conceded that "maybe" the question of whether Diversified had produced an adequate 30(b)(6) witness "is a discovery dispute,” noting that their "main argument ... is Diversified Foods was an indirect purchaser.” Id. at 133:12-16.1 decline to dismiss Diversified on the basis of Rule 30(b)(6).
. Associated is “a member owned wholesaler." Dkt. No. 755, Ex. 2 (Burnett 30(b)(6) Dep.) at 14:5. Its 30(b)(6) designee testified that "[w]e service approximately 211 stores.... The majority of our business is done in Louisiana....” Id. at 14:5-13,
. To the extent that certain defendants instead rely on the cost plus exception to Illinois Brick in seeking to dismiss Associated's claims, plaintiff's argue that "there is no pre-existing contract between Associated and its customers that provides for the purchase of a fixed quantity of mushrooms on a cost-plus basis.” Dkt. No. 457 at 11. Certain defendants argue that "Associated's members specified the type and quantity of fresh agaricus mushrooms to be purchased by Associated, and Associated then purchased the requested type and amount, and resold them to the members at a fixed percentage markup.” Dkt. No. 441 at 26-27 n.6. Certain defendants thus contend that "Associated was insulated from any alleged overcharge since its members were committed to purchasing a fixed quantity regardless of price.” Id. at 27 n.6. Plaintiffs counter that "Associated's shareholders decide from what to order from Associated based on the available price. If they do not like the price for a particular item, they may purchase it elsewhere. They are not obligated by contract to purchase fixed quantities on a cost-plus basis.” Dkt. No. 457 at 11-12. Plaintiffs argue that "[i]f the cost-plus exception could be satisfied by orders placed for product marked up in price by the seller, there would be nothing left of Illinois Brick.” Id. at 12. I agree with plaintiffs that the cost plus exception does not apply on the facts before the Court.
. Although the complaint names Market Fair. Inc. as a plaintiff, the proper entity is Market Fare, LLC. Dkt. No. 538 Ex. J. (Robert 30(b)(6) Dep.) at 11:4-15, 69:10-15, 72:17-23. Plaintiffs argue that "a typographical error in the name of one of the class representatives in Plaintiffs’ Complaint (‘Market Fair, Inc.’ instead of 'Market Fare, LLC’) does not show that representatives of the Robert companies did not read the Complaint or fulfill the obligations of the Robert Companies as a class representative.” Dkt. No. 549 at 23. Although the typographical error is regrettable, I decline to find that it makes the Robert stores an inadеquate representative of the putative class.
. Associated was the Robert companies' primary supplier of mushrooms. Dkt. No. 538, Ex. J (Robert 30(b)(6) Dep.) at 20:17-24 ("almost all of my purchases come through” Associated), and the Robert plaintiffs are proceeding under "an assignment of claims related to the mushrooms that they purchased from Associated....” Dkt. No. 185 at ¶ 16. Absent a valid assignment from Associated, the Robert plaintiffs would have been indirect purchasers barred from pursuing a claim under Illinois Brick. Defendants originally made an assignment-based challenge to the adequacy of the Robert companies, but they have withdrawn their challenge following the Court of Appeals’ decision in Wallach v. Eaton Corp.,
. As one court has explained,
[a]t the class certification stage, ... the district court must ... ensure that the plaintiffs' presentation of their case will be through means amenable to the class action mechanism. We are looking here not for hard factual proof, but for a more thorough explanation of how the pivotal evidence behind plaintiff's theory can be established. If there is no realistic means of proof, many resources will be wasted setting up a trial that plaintiffs cannot win.
In re New Motor Vehicles Canadian Exp. Antitrust Litig.,
."In antitrust cases, '[p]roof of injury (whether or not an injury occurred at all) must be distinguished from calculation of damages (which determines the actual value of the injury).’ " In re Plastics Additives, No. 03-2038,
. "A district court which has taken an initial look at the merits is not foreclosed from later entertaining, post-discovery, a summary judgment motion from defendants asserting that plaintiffs cannot establish the requisite antitrust ... impact through common means.” In re New Motor Vehicles Canadian Exp. Antitrust Litig.,
. Plaintiffs continue to insist that the price fixing conspiracy is "horizontal” although I previously found that "that there are both horizontal and vertical agreements in play in the alleged conspiracy in this case.” Dkt. No. 670 at 26.
. "The rule of reason requires the fact-finder to 'weigh [] all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.' " Deutscher Tennis Bund v. ATP Tour, Inc.,
. "[P]er se analysis, permits courts to make 'categorical judgments' that certain practices, including [some types of] price fixing, horizontal output restraints, and market-allocation agreements, are illegal per se.” Cont'l Airlines, Inc. v. United Airlines, Inc.,
. "[T]he antitrust violation at issue in Bogosian was a per se offense." Package Shop, Inc. v. Anheuser-Busch, Inc., No. 83-513,
. See In re Linerboard Antitrust Litig.,
. Of course, plaintiffs do not rely on this evidence alone, but ask the Court to consider it in conjunction with the other elements of its "belt and suspenders” approach to establishing predominance.
, "Like any evidence, admissible expert opinion may persuade its audience, or it may not,.., The district court may be persuaded by the testimony of either (or neither) party’s expert with respect to whether a certification requirement is met.”
. “A court’s determination that an expert's opinion is persuasive or unpersuasive on a Rule 23 requirement does not preclude a different view at the merits stage of the case.” Hydrogen Peroxide,
. "Interchangeability implies that one product is roughly equivalent to another for the use to which it is put; while there may be some degree of preference for one over the other, either would work effectively." Queen City Pizza, Inc. v. Domino's Pizza, Inc.,
. M.D. Basciani also contends that a finding of common impact is not supported because "demand for fresh agaricus mushroom products is price elastic meaning that consumer demand is sensitive to price changes, "rendering prices insensitive to effective output restrictions.” Dkt. No. 750 at 4-5, citing Dkt. 538, Ex. A. (Lopez Rpt.) at ¶ 84. Professor Elhauge responds that "the observation that the demand for fresh agaricus mushrooms was 'elastic' at existing prices would merely confirm that the EMMC cartel was maximizing profits." Dkt. No. 517, Ex. 53 (Elhauge Reply) at ¶ 77.
. "The relevant geographic market ... is that area in which a potential buyer may rationally look for the goods or services he seeks.” Gordon v. Lewiston Hosp.,
. The Court of Appeals has explained that
evidence as to an issue or element need not be produced at class certification where the very nature of the issue or element guarantees that all class members' claims will "prevail or fail in unison,” and therefore there is "no risk whatever that a failure of proof on the common question ,.. will result in individual questions predominating.”
Harnish v. Widener Univ. Sch. of Law,
. Plaintiffs argue that "[t]he battle of the experts with respect to proper market definition does not warrant taking the issue of market structure as evidence of common impact away from the jury.” Dkt. No. 549 at 37; see also Dkt. No. 768 at 54:12-15 (arguing that the relevant geographic market is "a disputed issue of fact that[ i]s common among all the class, and it[ i]s an issue for a jury to decide”). However, the Court of Appeals has instructed that "[wleighing conflicting expert testimony at the certification stage is not only permissible; it may be integral to the rigorous analysis Rule 23 demands.” Hydrogen Peroxide,
the task presented by a "battle of the experts” in the Rule 23(b)(3) context is one of determining whether the plaintiff’s expert testimony is evidence that is (1) common to the class; (2) methodologically capable of addressing the question it seeks to answer; and (3) substantially probative of the issue, enough so that a reasonable factfinder could rely on it in part to resolve the case on the merits. The testimony need not be flawless or impenetrable—indeed, almost no testimony ever is—and the factfinder will ultimately weight the testimony accordingly. At the class certification stage, however, the expert testimony must simply provide a reliable basis upon which to determine that the putative class's claims are best served by class treatment.
In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-1175,
. Conversely, M.D. Basciani’s expert, Dr. Lopez opines that Professor Elhauge's geographic market definition is too small and should be expanded to include the entire United States. See Dkt. No, 538, Ex. A. (Lopez Rpt.) at ¶ 32. M.D. Bas-ciani does not independently raise the issue of the relevant geographic market in its opposition to plaintiffs’ motion for class certification. See Dkt. No. 538.
.I do not disagree with certain defendants that, "if, in fact they[ a]re separate markets[,] then that raises a whole bundle of individual issues.” Dkt. No. 768 at 88:10-14. To be sure, plaintiffs run the risk of decertification or otherwise being unable to proceed with their claims if they are unable to prove that there is antitrust impact in the relevant geographic market as they would have it defined. See Dkt. No, 754 at 23 (certain defendants’ argument that "if the relevant antitrust markets are regional," "three of Plaintiffs’ proposed methods of proving class-wide impact—market structure, EMMC documents, and their expert’s *⅜⅜⅜⅜ increase chart—are incapable of doing so” because they do not separately address particular geographic regions).
. ”[F]indings with respect to class certification do not bind the ultimate fact-finder on the merits.” Hydrogen Peroxide,
. In my rule of reason decision, I found "that there are both horizontal and vertical agreements in play in the alleged conspiracy in this case....” Dkt. No. 670 at 26, I explained that
. But see Dkt. No. 549 at 47, citing Dkt. No. 517, Ex. 53 (Elhauge Reply) at ¶ 384 (explaining that the purpose of Professor Elhauge’s supply control model is not to show "whether or not any class member in fact incurred an overcharge,” but rather to provide "an alternate damage calculation that isolates the effects of Defendants’ Supply Cоntrol Program”).
. I previously found that the regression analysis was sufficient to ”fit[] the case under Rule 702” and declined to exclude it, explaining that Professor Elhauge had "robustly supported his conclusions of common impact,” even if the analysis "might not ultimately show that all or nearly all class members were impacted....” Dkt. No. 693 at 34-35.
. Professor Elhauge explained that "[w]hile [he] did not have sufficient data to apply [his] statistical analysis to all class members, [he] would not expect the impact on those class members to be significantly different,” where “(1) the sales were subject to the same minimum pricing policies, (2) identical monitoring and enforcement mechanisms applied, (3) the supply control scheme reduces the amount of supply available to all customers, (4) the mushrooms are commodities, and (5) the sales were subject to the same market conditions.” Elhauge Rpt. at ¶ 109.
.In subsequent briefing, certain defendants explain that "the problem is not that Plaintiffs’ impact model or models have turned up some likely-uninjured purchasers, but that the model or models are not capable of showing class-wide impact.” Dkt. No. 773 at 5 (emphasis in original). However, on class certification I am not convinced that plaintiffs’ models are incapable of showing class-wide impact when they are considered in combination with plaintiffs’ other proposed proof of impact.
. To the extent that defendants’ challenges to Professor Elhauge's empirical analysis "center on the results of his analysis ... rather than the feasibility of using a single formula methodology,” such challenges might be better viewed as a "merits issue” and "not a class certification issue." In re Titanium Dioxide Antitrust Litig.,
. Plaintiffs contend that "the *****% subset of the class members considered in the Elhauge
. I previously held that Professor "Elhauge has sufficiently shown that his decision to use a subset of defendants’ data was reliable since those defendants produced the most complete data over the relevant time period and represented the majority of total sales made by defendants.” Dkt. No. 693 at 30 (emphasis added).
. In the analysis, Professor Elhauge "considered the prices paid by class members ***** before and ***** after February 4, 2011 and October 11, 2002, the dates of the two principal price increases imposed by the EMMC.” Dkt. No. 517 at 42, citing Dkt. No. 517, Ex. 2 (Elhauge Rpt.) at ¶ 98. He also "performed the same kind of before and after analysis for every ***** period from 1999-2005” and found that "[i]n most periods where the EMMC was not imposing a price increase, the percentage of class members paying at least ***** more ***** after any given date was about *****%,” Dkt. No. 517 at 42, citing Dkt. No. 517, Ex. 2 (Elhauge Rpt.) at ¶ 99.
. Professor Elhauge’s calculation "relied on the EMMC’s own estimates that its Supply Control Program had succeeded in keeping ***** million pounds of mushrooms off the market.” Dkt. No. 517 at 51. But, as he explains in his reply report, if the factfinder does not credit the EMMC’s own estimation of the mushrooms the supply control program prevented from entering the market, it would be straightforward to plug an alternative number into his model to generate an alternative damages calculation. See Dkt. No. 517, Ex. 53 (Elhauge Reply) at ¶378. Thus, I previously found that “while there might be a factual dispute about the true extent of any reduction in supply caused by the EMMC’s supply control efforts, Prof. Elhauge’s [supply control] analysis has sufficient foundation in the factual record to be admissible.” Dkt. No. 693 at 40.
. That being said, in the end there must be a "way to ensure that [any] damages award goes only to injured class members ...” i.e„ "a means of distributing the aggregate award only to injured class members.” Tyson Foods, Inc. v. Bouaphakeo, — U.S. -,