264 F.R.D. 603 | N.D. Cal. | 2009
In this antitrust multi-district litigation, Indirect Purchaser Plaintiffs (IP Plaintiffs) move for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. Defendants
BACKGROUND
The facts of this case were laid out in greater detail in the Court’s order on the initial motions to dismiss. In brief, IP Plaintiffs are a group of individuals and companies that purchased Static Random Access Memory (SRAM) indirectly from one or more Defendants, for end use and not for resale. Defendants are various corporations that sold SRAM to customers throughout the United States.
SRAM is a type of memory device that cannot retain stored data absent a source of power. SRAM is used in a variety of product markets, including: (1) the communications market in cell phones and Voice Over Internet Protocol (VOIP) technology; (2) the computer market in servers, mainframes, high-end computer workstations, and personal digital assistants (PDAs) and smart phones; and (3) the networking communications market in routers, switches, proxy and gateway devices, modems, storage area networks and firewalls. Michael Harris Deel. ¶¶ 14-17. There are three general types of SRAM: (1) asynchronous SRAM (typically called slow or low power), which is used in mobile phones and other hand-held devices that contain a central processor, (2) synchronous SRAM (typically called fast or high power), which is generally found in computers and networking equipment and (3) pseudo SRAM (PSRAM), which is found in smart phones and other devices that require low power consumption and fast memory. Id. at ¶¶ 8-13.
During the class period, Defendants possessed sixty to seventy percent of the market share of total SRAM sales. Defendants sell SRAM to various customers, both large and small scale, through a variety of distribution paths. SRAM manufactured by Defendants can be purchased by an SRAM distributor and resold to an original equipment manufacturer (OEM) or purchased by a contract manufacturer. Contract manufacturers create individual SRAM components and finished products containing SRAM for OEMs. Thus, OEMs purchase SRAM directly from SRAM manufacturers, distributors and contract manufacturers. OEMs then sell SRAM directly to consumers or to consumers through a reseller, distributor or retailer. Id. ¶¶ 41-47.
IP Plaintiffs allege that, between 1996 and 2006, Defendants conspired to fix and maintain artificially high prices for SRAM. According to IP Plaintiffs, Defendants carried out this conspiracy through in-person, telephone and email communications regarding pricing to customers and market conditions. IP Plaintiffs allege violations of Section 1 of the Sherman Act, California’s Cartwright Act, California Business and Professions Code §§ 16720 and 17200, and numerous other states’ antitrust, unfair competition and consumer protection laws. They seek disgorgement of profits and unjust enrichment.
IP Plaintiffs seek certification of a nationwide class for injunctive relief defined as follows:
*606 All persons and entities residing in the United States who, from November 1,1996 through at least December 31, 2006, purchased SRAM in the United States indirectly from the Defendants for their own use and not for resale. Specifically excluded from this class are the Defendants; the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
Plaintiffs seeking to represent a class must satisfy the threshold requirements of Rule 23(a) as well as the requirements for certification under one of the subsections of Rule 23(b). Rule 23(a) provides that a case is appropriate for certification as a class action 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.” Fed.R.Civ.P. 23(a).
Rule 23(b) further provides that a case may be certified as a class action only if one of the following is true:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunc-tive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(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
(D) the likely difficulties in managing a class action.
Fed.R.Civ.P. 23(b).
Plaintiffs seeking class certification bear the burden of demonstrating that each element of Rule 23 is satisfied, and a district court may certify a class only if it determines that plaintiffs have borne their burden. General Tel. Co. v. Falcon, 457 U.S. 147, 158-61, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Don-inger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308 (9th Cir.1977). In making this determination, the court may not consider the merits of plaintiffs’ claims. Burkhalter Travel Agency v. MacFarms Int’l, Inc., 141 F.R.D. 144, 152 (N.D.Cal.1991). Rather, the court must take the substantive allegations of the complaint as true. Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir.1975). Nevertheless, the court need not accept conclusory or generic allegations regarding the suitability of the litigation for resolution through class action. Burkhalter, 141 F.R.D. at 152. In addition, the court may consider supplemen
“Class actions play an important role in the private enforcement of antitrust actions. For this reason courts resolve doubts in these actions in favor of certifying the class.” In re Rubber Chemicals Antitrust Litig., 232 F.R.D. 346, 350 (N.D.Cal.2005).
DISCUSSION
I. Class Definitions
Defendants first argue that class certification must be denied because IP Plaintiffs’ proposed class definitions are not precise and the identity of the class members is not objectively ascertainable. “An adequate class definition specifies ‘a distinct group of plaintiffs whose members [can] be identified with particularity.’ ” Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586, 593 (E.D.Cal.2008) (quoting Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978)). “The identity of class members must be ascertainable by reference to objective criteria.” 5 James W. Moore, Moore’s Federal Practice, § 23.21[1] (2001). Thus, a class definition is sufficient if the description of the class is “definite enough so that it is administratively feasible for the court to ascertain whether an individual is a member.” O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D.Cal.1998).
Here, the class definitions meet this standard. The definitions of the classes are relatively straightforward. Class members (1) must live in a particular state, (2) cannot be a direct purchaser, (3) cannot be a reseller, (4) must have made a purchase within the relevant time period and (5) must have purchased a product containing SRAM made by a Defendant. These definitions are not subjective or imprecise. IP Plaintiffs will be able to identify all products that contain Defendants’ SRAM by analyzing Defendants’ documents, testimony from Defendants’ personnel, third party transactional data, third party discovery responses that state whether their products contain SRAM, BoMs
II. Class Certification Under Rule 23(a)
To certify a class, IP Plaintiffs must satisfy Rule 23(a). As noted above, Rule 23(a) provides that a case is appropriate for certification as a class action 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.”
Defendants do not dispute IP Plaintiffs’ assertion that this action satisfies the numer-osity and commonality requirements of Rule 23(a)(1) and (2), and the Court finds that it does. See 1 Alba Cone & Herbert B. New-berg, Newberg on Class Actions § 3.3 (4th ed.2002) (where “the exact size of the class is unknown, but general knowledge and common sense indicate that it is large, the nu-merosity requirement is satisfied”); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1998) (“All questions of fact and law need not be common to satisfy [Rule 23(a)(2)]. The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.”)
Defendants assert that class certification must fail because (1) IP Plaintiffs cannot meet the typicality requirement of Rule 23(a)(3) and (2) IP Plaintiffs cannot protect
A. Typicality
The typicality prerequisite of Rule 23(a) is fulfilled if “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 test for typicality is “whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.1992) (quoting Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D.Cal.1985)). “Under the rule’s permissive standards, representative claims are ‘typical’ if they are reasonably eo-extensive with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020. “The typicality requirement does not mandate that products purchased, methods of purchase, or even damages of the named plaintiffs must be the same as those of the absent class members.” In re Vitamins Antitrust Litig., 209 F.R.D. 251, 261 (D.D.C.2002).
Here, all of the IP Plaintiffs are indirect purchasers of SRAM who allege that Defendants engaged in a price-fixing conspiracy. As the Court noted when it certified the DP Plaintiff class, “the overarching price fixing scheme is the linchpin of [IP] Plaintiffs complaint, ‘regardless of the product purchased, the market involved or the price ultimately paid.’ ” In re Static Random Access Memory (SRAM) Litig., 2008 WL 4447592, *3 (quoting In re Flat Glass Antitrust Litig., 191 F.R.D. 472, 480 (W.D.Pa. 1999)). Thus, IP Plaintiffs’ claims are typical even though they may have used different purchasing procedures, purchased different quantities or a different mix of products, or received different prices than other class members. Accordingly, Rule 23(a)(3)’s typicality requirement is met.
B. Adequate Representation
Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). The adequacy requirement consists of two inquiries: “(1) do the representative plaintiffs and their counsel have any conflicts of interest with other class members, and (2) will the representative plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Staton v. Boeing Co., 327 F.3d 938, 958 (9th Cir.2003). Defendants challenge IP Plaintiffs as to both requirements of the rule.
The mere potential for a conflict of interest is not sufficient to defeat class certification; the conflict must be actual, not hypothetical. See Cummings v. Connell, 316 F.3d 886, 896 (9th Cir.2003) (“[T]his circuit does not favor denial of class certification on the basis of speculative conflicts.”); Soc. Servs. Union, Local 535 v. County of Santa Clara, 609 F.2d 944, 948 (9th Cir.1979) (“Mere speculation as to conflicts that may develop at the remedy stage is insufficient to support denial of initial class certification.”); Blackie v. Barrack, 524 F.2d 891, 909 (9th Cir.1975) (noting that class members might have differing interests at later stages of litigation, but that “potential conflicts” do not present a valid reason for refusing to certify a class). Defendants argue that several proposed representatives are not adequate because they have business or personal relationships with the attorneys who represent them in this case. For instance, one representative Plaintiff is the uncle of one of Plaintiffs’ attorneys and some of the other representative Plaintiffs know some of Plaintiffs’ attorneys socially or have had prior business dealings with them. However, Defendants have not shown how any of these relationships have manifested a conflict nor have they provided legal authority that establishes that these relationships establish conflicts. To the contrary, it “would seem a bit anomalous that an individual whose [relative or friend] has developed a reputation as a competent [ ] lawyer should be prohibited from turning to his [relative or friend] for assistance if he has a legitimate legal claim.” Lewis v. Goldsmith, 95 F.R.D. 15, 20 (D.N.J. 1982).
III. Class Certification Under Rule 23(b)(2)
IP Plaintiffs move for certification of a nation-wide injunctive relief class under Rule 23(b)(2). The class “seeks to enjoin Defendants from engaging in conduct that continues to cause prices for SRAM to be fixed at supracompetitive levels.” Motion at 40.
Rule 23(b)(2) permits certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Federal R. Civ. P. 23(b). “Class certification under Rule 23(b)(2) is appropriate only where the primary relief sought is declaratory or injunctive.” Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1195 (9th Cir.2001). A class seeking monetary damages may be certified pursuant to Rule 23(b)(2) where such relief is “merely incidental to [the] primary claim for injunctive relief.” Probe v. State Teachers’ Retirement Sys., 780 F.2d 776, 780 (9th Cir.1986).
Here, the primary relief sought is an injunction. The first paragraph of the complaint states: “This complaint is filed under Section 16 of the Clayton Act, 15 U.S.C. § 26, to obtain injunctive relief____” Further, members of the nation-wide class are far more numerous than the members of the Indirect State Classes. The nation-wide class includes persons in all fifty states, the District of Columbia, and Puerto Rico who indirectly purchased SRAM. Moreover, the long-lasting effect of an injunction would likely be greater than a damages award. See Ellis v. Costco Wholesale Corp., 240 F.R.D. 627, 643 (N.D.Cal.2007) (certifying Rule 23(b)(2) class where injunction would have “far-reaching” effects on defendant’s promotion practices and would “benefit class members in the same way”).
Defendants argue that IP Plaintiffs do not have standing to assert them claim for injunctive relief. The Court disagrees. Article III limits the jurisdiction of the federal courts to “cases” and “controversies.” In order to satisfy the “case or controversy” requirement, a plaintiff must show that: “(1) he or she has suffered an injury in fact that is concrete and particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision.” Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir.2008). “Article III standing requires an injury that is actual or imminent, not conjectural or hypothetical.” Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1100 (9th Cir.2000) (internal quotation marks omitted). A plaintiff seeking declaratory and injunctive relief cannot rely solely on a past injury; instead, he or she must demonstrate a “very significant possibility of future harm” to warrant the requested relief. San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir.1996).
At this stage in the proceedings, IP Plaintiffs have alleged sufficient facts to establish Article III standing for their nationwide injunctive relief class. IP Plaintiffs allege that Defendants and their co-conspirators entered into a continuing conspiracy in restraint of trade artificially to raise prices for SRAM in the United States. They fur
Finally, Defendants argue that, because IP Plaintiffs seek to certify a nationwide injunctive class from November 1, 1996 through December 31, 2006, they have impliedly alleged that the conspiracy ended in 2006. However, a finite proposed class period does not defeat certification of a class under Rule 23(b)(2). See, e.g., Jaffe v. Morgan Stanley & Co., 2008 WL 346417, at *3 (N.D.Cal.) (certifying injunctive-relief class for settlement affecting persons employed by the defendants “at any time between October 12, 2002 and December 3, 2007”). Further, IP Plaintiffs allege that the same market conditions that facilitated the conspiracy from 1996 to 2006 continue today. They allege that Defendants’ price-fixing resulted from a systematic, repeated pattern of sharing sensitive competitive information which was greatly facilitated by the cross-competitor business relationships that still exist. Thus, there is alleged a significant risk that the conspiracy will persist or reform in the future. Therefore, the Court certifies a nation-wide class under Rule 23(b)(2).
IV. Class Certification Under Rule 23(b)(3)
A. Predominance
IP Plaintiffs’ motion for certification under Rule 23(b)(3) centers around the issue of predominance. “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). ‘When common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is clear justification for handling the dispute on a representative rather than an individual basis.” Hanlon, 150 F.3d at 1022 (internal quotation marks omitted). “The common issues must only predominate; they do not have to be dispositive of the litigation.” In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12, 29 (D.D.C.2001).
To determine whether the predominance requirement is satisfied, “courts must identify the issues involved in the case and determine which are subject to ‘generalized proof,’ and which must be the subject of individualized proof.” In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 2006 WL 1530166, at *6 (N.D.Cal.).
Liability in an antitrust ease is based on: (1) whether there was a conspiracy to fix prices in violation of the antitrust laws; (2) whether the plaintiffs sustained an antitrust injury, or the “impact” of the defendants’ unlawful activity; and (3) the amount of damages sustained as a result of the antitrust violations. In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 2006 WL 1530166, at *7 (N.D.Cal.).
IP Plaintiffs need not show that there will be common proof on each element of the claim. “In price-fixing cases, courts repeatedly have held that the existence of the conspiracy is the predominant issue and warrants certification even where significant individual issues are present.” Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159, 167 (C.D.Cal.2002). “[C]ommon liability issues such as conspiracy or monopolization have, almost invariably, been held to predominate over individual issues.” 6 Newberg on Class Actions, at § 18.25.
Here, the central issue in the case is the existence of Defendants’ price-fixing conspiracy. IP Plaintiffs allege that Defendants engaged in illicit communications with each other to share pricing and other sensitive competitive information related to SRAM, and that they set common minimum prices of SRAM based on this information. Differences among class members regarding the SRAM products they purchased, from whom they purchased the products and the price at which they purchased them relate primarily to the amount of damages and not the common issue of Defendants’ conduct.
Defendants focus their arguments on the second element of the antitrust claim; they assert that IP Plaintiffs have failed to demonstrate that common proof can be used to
[D]uring the class certification stage, the court must simply determine whether plaintiffs have made a sufficient showing that the evidence they intend to present concerning antitrust impact "will be made using generalized proof common to the class and that these common issues will predominate. The court cannot weigh in on the merits of plaintiffs’ substantive arguments, and must avoid engaging in a battle of expert testimony. Plaintiffs need only advance a plausible methodology to demonstrate that antitrust injury can be proven on a class-wide basis.
Id. at *9 (citations and internal quotation marks omitted). “On a motion for class certification, the Court only evaluates whether the method by which plaintiffs propose to prove class-wide impact could prove such impact, not whether plaintiffs in fact can prove class-wide impact.” In re Magnetic Audiotape Antitrust Litig., 2001 WL 619305, at *4 (S.D.N.Y.2001); See In re Flat Glass Antitrust Litig., 191 F.R.D. 472, 485-88 (W.D.Pa.1999); In re Polypropylene Carpet Antitrust Litig., 178 F.R.D. 603, 620-23 (N.D.Ga.1997).
Many courts have recognized a presumption of class-wide antitrust impact.
The presumption of impact is not necessarily rebutted even if an intermediary has altered the product. In re Cipro Cases I and II, 121 Cal.App.4th 402, 416, 17 Cal. Rptr.3d 1 (2004). Impact “is ordinarily a permissible assumption in cases where consumers have purchased products in an anti-competitive market, even if some consumers did not actually have to pay the overcharge because of their individual circumstances.” Id. at 413, 17 Cal.Rptr .3d 1.
Some federal courts recognize the same presumption. See In re Potash Antitrust Litig., 159 F.R.D. 682, 693 (D.Minn.1995) (“[A]s a general rule in antitrust price-fixing cases, questions common to the members of the class will predominate over questions affecting only individual members.”); In re Catfish Antitrust Litig., 826 F.Supp. 1019, 1041 (N.D.Miss.1993) (“[I]n an illegal price-fixing scheme, there is a presumption that all purchasers will be impaeted/injured by having to pay the higher price.”); In re Cement and Concrete Antitrust Litig., 1979 WL 1595, at *3 (D.Ariz.1979) (“Courts have consistently held that an illegal price fixing scheme presumptively impacts upon all purchasers of a price fixed product in a conspiratorially affected market.”).
Notwithstanding this presumption, IP Plaintiffs cannot demonstrate common impact by simply alleging a price-fixing conspiracy. The “problem of proof in an indirect purchaser case is intrinsically more complex [than in a direct purchaser case], because the damage model must account for the actions of innocent intermediaries who allegedly passed on the overcharge.” William H. Page, The Limits of State Indirect Purchaser Suits: Class Certification in the Shadow of Illinois Brick, 67 Antitrust L.J. 4, 12 (1999).
Here, IP Plaintiffs’ method of proving injury on a class-wide basis is based on the declarations of their experts, economists Drs. Michael J. Harris and Mark Dwyer. Dr. Harris explains that, according to the H & S article, there are five classes of factors that should be considered in evaluating whether generalized evidence can be used to determine the rate of pass-through. These include temporal relationships, pricing practices, directness of affected costs, supply and demand.
Temporal factors relate to the frequency of price changes and the duration of anti-competitive overcharge. Pricing practices relate to the consistency and basis of pricing policy. The directness of affected costs refers to whether an overcharge affects a direct (i.e. variable) cost or an indirect (i.e. overhead) cost. Because SRAM is a direct cost, Dr. Harris claims that overcharges will be passed through sooner and at a higher rate. The more elastic the supply-curve of an individual intermediary the higher is the rate of pass-through. A less elastic demand-curve will increase the rate of pass-through. Dr. Harris concludes, “Taken together, the theoretical issues discussed above as applied to the SRAM product markets indicate that, a-prio-ri, one fully expects that these markets would exhibit a high degree of pass through.” Harris Decl. ¶ 67. This economic evidence would be offered by the proposed class representatives and by every single individual class member if their claims were separately tried to a jury to prove impact and the amount of damages suffered. Thus, this evidence is common to all class members for class certification purposes.
Dr. Dwyer proposes two different types of regression models that will establish that the fact of injury can be shown on a class-wide basis using common proof: a reduced form model and a structural model. A reduced form model can be used when component cost information is provided. This model measures the extent of pass-through of component costs and the prices paid for end-use products. The structural model can be used regardless of whether component cost information is available. This model uses end-use purchase price information and analyzes market supply and demand to determine the presence of pass-through.
Defendants argue that the reduced form model fails to take into account actual SRAM cost data and that the model ignores entire distribution chains. However, Dr. Dwyer states that the “data provided by the OEMs specify SRAM cost components themselves, and allow for a further statistical test, precisely, whether the SRAM cost pass-through differs from the overall BoM (i.e., component cost) pass-through rate.” Dwyer Decl. ¶ 38.
Defendants also argue that the structural model is flawed because it assumes pass-through without actually testing for it. However, the structural model derives a pass-through rate from many economic variables, such as the price elasticity of end-use products, the structure of competition among product suppliers and the degree to which cost changes are common across end-use products. Dr. Dwyer notes that pass-through rates vary significantly depending on the values of these variables.
Defendants also criticize IP Plaintiffs for using aggregated and averaged data in their structural model because such data could yield “false-positive pass-through.” Opposition at 31. However, this criticism is not well taken. In the context of an IP antitrust case against Microsoft, a district court in Minnesota held,
The damages question for trial is presumably not about whether a specific Microsoft price increase found its way through the distribution chain and resulted in an increase in the price paid by a specific class member. Rather, the question is how a series of Microsoft price increases, and/or a series of Microsoft failures to reduce prices, impacted the price each consumer paid. The question of what would have happened but for Microsoft’s monopoly overcharge is a hypothetical, and a hypothetical question generally cannot be answered by historical data about what actually happened, but must often be answered by general principles about what generally tends to happen. Thus, average pass through rates appear reasonable and even necessary to prove damages here.
Gordon v. Microsoft Corp., 2003 WL 23105550, at *3 (Minn.Dist.Ct.); see also In re Cardizem CD Antitrust Litig., 200 F.R.D. 326, 345, 350 (E.D.Mich.2001); In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 523 (S.D.N.Y.1996); Presidio Golf Club of San Francisco v. National Linen Supply Corp., 1976 WL 1359, at *5 (N.D.Cal.). Thus, the use of averaged and aggregated data is not fatal to IP Plaintiffs’ econometric models.
Defendants argue that the SRAM distribution chain is too complex from which to discern evidence of pass-through. However, these complexities do not preclude an estimation of whether an SRAM overcharge impacted end purchasers of SRAM-containing products. Dr. Harris has noted that many other markets have the same features as the markets at issue here, and those markets are routinely tested for relationships among variables of interest. Harris Reply Decl. ¶¶ 44-48. Moreover, divergent pricing and sales practices are not necessarily an impediment to measuring pass-through. Courts have held that “ ‘contentions of infinite diversity of product, marketing practices, and pricing have been made in numerous cases and rejected.’ ” Rosack v. Volvo of America Corp., 131 Cal.App.3d 741, 755, 182 Cal.Rptr. 800 (1982) (quoting In re Folding Carton Antitrust Litig., 75 F.R.D. 727, 734 (N.D.Ill.1977)). Courts may look past “surface distinctions” in “marketing mechanisms” when analyzing whether to certify indirect purchaser classes; “[identical products, uniform prices, and unitary distribution patterns are not indispensable for class certification in this context.’ ” B.W.I., 191 Cal.App.3d at 1350, 235 Cal.Rptr. 228 (quoting Shelter Realty Corp. v. Allied Maintenance Corp., 75 F.R.D. 34, 37 (S.D.N.Y.1977)).
Defendants also argue that, because SRAM is a relatively small portion of the price of an overall product, any price increase in SRAM will have a de minimis effect. This argument has no merit. Defendants may not shield themselves from liability by fixing prices on a relatively inexpensive item. See Free v. Abbott Laboratories, 982 F.Supp. 1211, 1217 (M.D.La. 1997) (stating that “a price fixing scheme at the top of the distribution chain” would
In sum, IP Plaintiffs have presented plausible methodologies that will be used to perform quantitative analyses to demonstrate class-wide injury.
As to the third element of an anti-trust claim, damages, “[a]ntitrust plaintiffs have a limited burden with respect to showing that individual damages issues do not predominate.” In re Potash Antitrust Litig., 159 F.R.D. at 697. IP Plaintiffs are not required to “supply a ‘precise damage formula’ at the certification stage of an antitrust action. Instead, in assessing whether to certify a class, the Court’s inquiry is limited to whether or not the proposed methods are so insubstantial as to amount to no method at all.” Id.
IP Plaintiffs have proffered three methodologies for calculating damages on a class-wide basis: the first compares SRAM prices before and after the period of the price-fixing conspiracy; the second compares SRAM prices during the class period with prices for comparable products; and the third uses Defendants’ cost data to estimate what competitive prices for SRAM should have been. Dr. Dwyer concludes that these methods will “allow direct computation of per-unit overcharges to indirect SRAM purchasers.” Dwyer Deel. ¶ 63. The validity of those methods “will be adjudicated at trial based upon economic theory, data sources, and statistical techniques that are entirely common to the class.” In re Market-Makers Antitrust Litig., 169 F.R.D. at 521.
Defendants have not shown that the methods are “so insubstantial as to amount to no method at all.” Potash, 159 F.R.D. at 697. Therefore, the Court concludes that common issues predominate with respect to IP Plaintiffs’ proof of the damages element of the antitrust conspiracy claim, as well as the conspiracy and impact elements.
B. Superiority
Rule 23(b)(3) also requires that class resolution must be “superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). “The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 617, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In antitrust cases such as this, the damages of individual indirect purchasers are likely to be too small to justify litigation, but a class action would offer those with small claims the opportunity for meaningful redress.
Certifying the IP national injunctive relief class and state classes is superior to, and more manageable than, any other procedure available for the treatment of factual and legal issues raised by IP Plaintiffs’ claims. What would be unmanageable is the institution of countless individual lawsuits with the same facts and legal issues. See In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 700 (S.D.Fla.2004) (“Multiple lawsuits brought by thousands of consumers and third-party payors in seventeen different states would be costly, inefficient, and would burden the court system.”); See In re Cardizem, 200 F.R.D. at 351.
Defendants are also concerned that this Court will be unable to manage state-law claims from twenty-seven state classes. However, there is no qualitative difference between a federal district court considering class certification of state claims under that state law and a federal court serving as a multi-district litigation forum performing the same task for many federal courts. Moreover, courts frequently certify classes under the laws of multiple jurisdictions. See, e.g., Norvir Anti-Trust Litig., 2007 WL 1689899, at *8 (N.D.Cal.) (certifying class under the common law of forty-eight states); In re Pharm. Indus. Average Wholesale Price Litig., 233 F.R.D. 229, 230-31 (D.Mass.2006) (certifying multi-state defendant subclasses under the consumer protection laws of forty-one states). Thus, a class action is the superior method of resolving this controversy.
V. Expert Evidence
To support their motion for class certification, IP Plaintiffs rely on the declarations of
Federal Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Under the Federal Rules of Evidence, “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786. At the class certification stage of the proceedings, “robust gatekeeping” of expert evidence is not required; rather, the court must assess only whether expert evidence is useful in evaluating whether class certification requirements have been met. Kurihara v. Best Buy Co., 2007 WL 2501698, at *5 (N.D.Cal.) Daubert’s relevance and reliability requirements serve as “useful guideposts” but the court retains discretion in determining how to test reliability as well as whether an expert’s testimony is both relevant and reliable. Id; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Although this standard is “more lenient,” the court “ ‘must ensure that the basis of the expert opinion is not so flawed that it would be inadmissible as a matter of law.’ ” Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229, 235 (C.D.Cal.2006) (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 135 (2d Cir.2001)).
The question for the court is whether the expert evidence is sufficiently probative to be useful in evaluating whether class certification requirements have been met. See In re Polypropylene Carpet Antitrust Litigation, 996 F.Supp. 18, 26 (N.D.Ga.1997) (at class certification stage court only examined whether the expert’s methodology will (a) comport with basic principles, (b) have any probative value and (c) primarily use evidence that is common to all members of the proposed class); Bacon v. Honda of America Mfg., Inc., 205 F.R.D. 466, 470-71 (S.D.Ohio 2001) (“ ‘For common questions to exist, plaintiffs’ statistical evidence must logically support the inference of discrimination against the class asserted.’ ”) (citation omitted).
Although each side presents myriad valid challenges to the other’s expert, the Court concludes that these challenges are of the type that go to the weight of the evidence, not the admissibility. The economic principles and regression models relied upon by IP Plaintiffs’ experts, Drs. Harris and Dwyer, are solidly grounded in the academic literature. They cite extensive facts and data from this case that they reviewed and relied upon in rendering their opinions. The Court concludes that their opinions are reliable and admissible.
Similarly, Dr. Burtis’ expert opinions are also supported by academic and economic literature. She reviewed IP Plaintiffs’ allegations, Drs. Harris’ and Dwyer’s opinions and third-party data related to sales and purchases of the relevant products. Therefore, the Court concludes that her opinions are also reliable and admissible. The parties’ motions to exclude reflect disagreement with the opposing parties’ position; however, this disagreement does not warrant exclusion.
For the foregoing reasons, the Court grants IP Plaintiffs’ motion (Docket No. 645) for class certification.
The following nation-wide plaintiff class is hereby certified pursuant to Fed.R.Civ.P. 23(a) and (b)(2) for injunctive and declaratory relief:
All persons and entities residing in the United States who, from November 1,1996 through at least December 31, 2006, purchased SRAM in the United States indirectly from the Defendants for their own use and not for resale. Specifically excluded from this Class are the Defendants; the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
In addition, the following state plaintiff classes are hereby certified pursuant to Fed. R.Civ.P. 23(a) and (b)(3):
Arizona:
All persons and entities in Arizona who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
Arkansas:
All persons and entities in Arkansas who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
California:
All persons and entities in California who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
Florida:
All persons and entities in Florida who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
All persons and entities in Hawaii who indirectly purchased SRAM and/or products containing SRAM, for personal, family or household use, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/ her immediate family and judicial staff, and any juror assigned to this action.
Iowa:
All persons and entities in Iowa who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
Kansas:
All persons and entities in Kansas who indirectly purchased SRAM and/or products containing SRAM, for personal, family or household use, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/ her immediate family and judicial staff, and any juror assigned to this action.
Maine:
All persons and entities in Maine who indirectly purchased SRAM and/or products containing SRAM, for personal family or household use, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/ her immediate family and judicial staff, and any juror assigned to this action.
Massachusetts:
All persons and entities in Massachusetts who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/ her immediate family and judicial staff, and any juror assigned to this action.
Michigan:
All persons and entities in Michigan who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any*619 Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Aso excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
Minnesota:
Ml persons and entities in Minnesota who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Aso excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
Montana:
Ml persons and entities in Montana who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Aso excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
Nevada:
Ml persons and entities in Nevada who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Aso excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
New Mexico:
Ml persons and entities in New Mexico who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Mso excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/ her immediate family and judicial staff, and any juror assigned to this action.
New York:
Ml persons and entities in New York who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Aso excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
All persons and entities in North Carolina who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/ her immediate family and judicial staff, and any juror assigned to this action.
North Dakota:
All persons and entities in North Dakota who indirectly purchased products containing SRAM, for end use and not for resale, that were manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
Pennsylvania:
All persons and entities in Pennsylvania who indirectly purchased SRAM and/or products containing SRAM, for personal, family or household use, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
Puerto Rico:
All persons and entities in Puerto Rico who indirectly purchased products containing SRAM, for end use and not for resale, that were manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
Rhode Island:
All persons and entities in Rhode Island who indirectly purchased SRAM and/or products containing SRAM, for personal, family or household use, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
South Dakota:
All persons and entities in South Dakota who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifical*621 ly excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Aso excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/ her immediate family and judicial staff, and any juror assigned to this action.
Tennessee:
All persons and entities in Tennessee who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Aso excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
Utah:
Ml persons and entities in Utah who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Mso excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
Washington:
Ml persons and entities in Washington who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Aso excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/ her immediate family and judicial staff, and any juror assigned to this action.
West Virginia:
Ml persons and entities in West Virginia who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Aso excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/ her immediate family and judicial staff, and any juror assigned to this action.
Wisconsin:
Ml persons and entities in Wisconsin who indirectly purchased SRAM and/or products containing SRAM, for end use and not for resale, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Aso excluded are any federal, state or local governmental*622 entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
District of Columbia:
All persons and entities in the District of Columbia who indirectly purchased SRAM and/or products containing SRAM, for personal, family or household use, that was manufactured and/or sold by one or more of the Defendants during the Class Period. Specifically excluded from this Class are the Defendants, the officers, directors or employees of any Defendant; any entity in which any Defendant has a controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.
The following Plaintiffs are appointed as class representatives:
State Plaintiff
Arizona Lara Sterenberg
Arizona United Food & Commercial Workers Local 99
Arkansas Robert Harmon
California Michael Brooks
California Lawrence Markey
California Roman J. Munoz
California Joseph Solo
California Stargate Films
California United Food & Commercial Workers Local 8
District of Columbia Dona Culver
Florida Ronnie Barnes
Florida Ryan Edwards
Florida John Pharr d/b/a JP Micro
Hawaii Ramon Oyadomari
Hawaii Unite Here Local 5
Iowa Herbert Harmison
Iowa David Sly
Kansas nXio, LLC
Maine Penobscot Eye Care
Massachusetts James W. Allen
Michigan Matthew Frank
Minnesota Fairmont Orthopedies & Sports Medicine, P.A.
Minnesota Reclaim Center, Inc.
Montana Henry Kornegay
Montana Our Montana, Inc.
Nevada Culinary Workers Union Local 226
Nevada Allen Robert Kelley
New Mexico Daniel Yohalem
New York Rodrigo Bazan Gatti
New York CHP Media, Inc.
North Carolina Curtis Hogue, Jr.
North Dakota Ward Cater
Pennsylvania Beth O’Donnell
Puerto Rico Carlos R. Carrillo
Puerto Rico Javier Oyola-Alemany
Rhode Island Kevin Kicia
South Dakota Mitch Mudlin
Tennessee Frank C. Warner
Utah Christopher K. Giauque
Washington Christopher Smith
West Virginia Donna Hark
West Virginia David Loomis
Wisconsin Mark and Shannon Schneider
Wisconsin Christopher J. Stawski
The Court appoints Zelle Hofmann Yoelbel & Mason LLP as class counsel for IP Plaintiffs. Class counsel for IP Plaintiffs shall prepare and submit within thirty days from the date of this Order a proposed form of notice to be sent to members of the Class. Defendants may file any comments to the notice within fifteen days and IP Plaintiffs may reply fifteen days thereafter. Defendants shall prepare and submit to the Court and to counsel for IP Plaintiffs within thirty days from the date of this Order a list of names and addresses of all Class Members who can be identified with diligent effort.
The Court denies Defendants’ motions to exclude the expert opinions and rebuttal opinions of Drs. Mark Dwyer and Michael Harris (Docket Nos. 706 and 797); and denies IP Plaintiffs’ motion to exclude the expert opinion of Dr. Michelle Burtis (Docket No. 799).
IT IS SO ORDERED.
. Defendants are Samsung Electronics Company, Ltd., Samsung Electronics America, Inc., Samsung Semiconductor, Inc., Hynix Semiconductor, Inc., Hynix Semiconductor America,
. IP Plaintiffs note that their classes are "not meant to and do not include purchasers of used or refurbished products containing SRAM.” Reply at 18 n.17. Their use of the phrase "not for resale” in the class definition "is meant to limit the class to persons who purchased new products (and not products that were refurbished and bought from E-bay or elsewhere) and to eliminate retailers, wholesalers, distributors and other resellers.” Reply at 21 n.21.
. BoM is the acronym for Bill of Materials.
. IP Plaintiffs erroneously cite Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir.2007). However, by order of the Ninth Circuit, that opinion "shall not be cited as precedent by or to any court of the Ninth Circuit.” Dukes v. Wal-Mart, Inc., 556 F.3d 919 (9th Cir.2009).
. The existence of a presumption of antitrust impact is a matter of substantive law. Computer Economics, Inc. v. Gartner Group, Inc., 50 F.Supp.2d 980, 990 (S.D.Cal.1999); In re Relafen Antitrust Litig., 221 F.R.D. 260, 288 (D.Mass. 2004).
. The Court notes that IP Plaintiffs did not violate the Court's May 21, 2009 Discovery Order. IP Plaintiffs' experts were permitted to analyze and opine on third party information they possessed at the time that they filed their initial declarations to the extent that information was "referred to and analyzed” by Dr. Burtis.
