237 F.R.D. 440 | D. Kan. | 2006
MEMORANDUM AND ORDER
In this multidistrict litigation proceeding plaintiffs allege that defendants engaged in a
BACKGROUND
In the Consolidated Class Action Complaint (doe. #39) plaintiffs Skypark Manufacturing LLC (Skypark), Maine Industrial Tires Limited (Maine Tire), and Urethane Products Industries, Inc. (UPI)
The defendants in this lawsuit collectively are the primary aliphatic polyester polyol manufacturers. The defendants include Uniroyal Chemical Company, Inc. and Chemtura Corporation Wa Crompton Corporation (collectively, Chemtura) as well as Bayer AG and related entities Bayer Corporation, Bayer MaterialScience (fik/a Bayer Polymers LLC), Rhein Chemie Rheinau GmbH, and Rhein Chemie Corporation (collectively, Bayer). At the time plaintiffs originally filed their class certification motion, they sought class certification with respect to their claims against Chemtura and Bayer. Since the time when this motion was filed, however, plaintiffs and Bayer
Chemtura vigorously opposes class certification, primarily on the grounds that plaintiffs have failed to show that antitrust injury and damages are susceptible to common proof on a class-wide basis, hence predominance and superiority are lacking. Chemtura contends that the relevant products encompass numerous differently formulated chemical compounds known generally as “polyester polyols,” as well as a myriad of differently formulated polyester-based prepolymers (“prepolymers”) and two-component, polyester-based polyurethane systems (“polyurethane systems” or “systems”). Chemtura
LEGAL STANDARD FOR CLASS CERTIFICATION
The standards for certifying a class action are set forth in Fed.R.Civ.P. 23. This rule requires all four prerequisites of Rule 23(a) and at least one of the three requirements of Rule 23(b) to be satisfied. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); In re Integra Realty Res., Inc., 354 F.3d 1246, 1262 (10th Cir.2004). The decision whether to certify a class is committed to the broad discretion of the trial court. Rector v. City & County of Denver, 348 F.3d 935, 949 (10th Cir.2003); J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1287 (10th Cir.1999). The court must perform a rigorous analysis of whether the proposed class satisfies the requirements of Rule 23. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Hart, 186 F.3d at 1287-88; see also Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir.1988) (party seeking to certify a class is under a strict burden of proof to show that all of the requirements are met). The court should accept the allegations in the complaint as true, although it “need not blindly rely on eonclusory allegations which parrot Rule 23 requirements [and] may ... consider the legal and factual issues presented by plaintiffs complaints.” J.B., 186 F.3d at 1290 n. 7 (quotation omitted; brackets in original). The court is to remain focused on the requirements of Rule 23 rather than looking at the merits underlying the class claim. Shook v. El Paso County, 386 F.3d 963, 971 (10th Cir.2004); Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988); Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir.1982).
DISCUSSION
For the reasons explained below, the court finds as a threshold matter that plaintiffs’ proposed class definition as revised at the class certification hearing defines the class with sufficiently objective and ascertainable criteria. The court further finds that the four prerequisites of Rule 23(a) — numerosity, commonality, typicality, and adequacy of representation — are satisfied with respect to the proposed class and its representatives. The requirements of Rule 23(b)(3) also are satisfied because the court concludes that common questions of law and fact will likely predominate this case and a class action is the best method for adjudicating this controversy; the court rejects Chemtura’s arguments to the contrary. The court will not, however, certify the class pursuant to Rule 23(b)(2) because it appears that plaintiffs’ suggestion that Chemtura is continuing to act on grounds generally applicable to the class (in light of the federal price-fixing investigation and its implications for Bayer and Chemtura) is dubious and, consequently, the appropriate final relief relates exclusively or predominantly to money damages, not injunctive relief. Finally, the court will appoint co-lead counsel and liaison counsel in this set of consolidated cases as class counsel.
I. Definition of the Class and the Class Claims, Issues, or Defenses
The court must begin its analysis with the proposed class definition. The Manual for Complex Litigation explains the importance of defining the class in terms of sufficiently definite and readily ascertainable criteria: “Defining the class is of critical importance because it identifies the persons (1) entitled to relief, (2) bound by a final judgment, and (3) entitled under Rule 23(c)(2) to the ‘best notice practicable’ in a Rule 23(b)(3) action.
In plaintiffs’ motion for class certification, they initially sought certification of the following class:
All persons (excluding governmental entities and excluding Defendants and their present and former parents, predecessors, subsidiaries and affiliates) that purchased Urethanes and Urethane Chemicals in the United States from any of the Defendants, or any present or former parent, subsidiary or affiliate thereof, at any time during the period from January 1, 1998 to the present.
Plaintiffs further proposed to define the term “Urethanes and Urethane Chemicals” as “polyester polyols and related polyurethane systems,” just as it is defined in their complaint. Chemtura objects to this proposed product definition, contending essentially that it is not sufficiently definite in terms of the scope of the relevant product market. The court agrees: defining the market in terms of “related” systems seems too indefinite because it does not appear to be susceptible to objective application.
In plaintiffs’ reply, they explain that their proposed definition includes the products discussed by defendants in their brief — that is, it includes direct purchasers of polyester polyols, polyester polymers and prepolymers, and polyester-based polyurethane systems. At the class certification hearing, upon inquiry by the court, plaintiffs confirmed this would be an appropriate class definition. At the hearing the court also asked plaintiffs’ counsel whether the class definition should be further confined to aliphatic polyester polyols, which would be consistent with the scope of the declarations of plaintiffs’ expert, Dr. Robert Tollison, in support of class certification. The opinions offered by Dr. Tollison are confined to the aliphatic polyester polyol market; he expressly excludes the aromatic polyester polyol market from his opinions. Plaintiffs’ counsel agreed that it would be appropriate to confine the relevant class definition to the aliphatic polyester polyol market. Thus, the proposed class definition now at issue is as follows:
All direct purchasers (excluding governmental entities and excluding Defendants and their present and former parents, predecessors, subsidiaries and affiliates) of aliphatic polyester polyols, aliphatic polyester polymers and prepolymers, and aliphatic polyester-based polyurethane systems in the United States from any of the Defendants, or any present or former parent, subsidiary or affiliate thereof, at any time during the period from January 1, 1998 to the present.4 This revised proposed class definition defines the class in terms of precise, objective, and presently ascertainable criteria. With this revision, the court rejects Chemtura’s argument that the proposed class definition is not sufficiently definite.
“Rule 23(c)(1)(B) also requires district courts to include in class certification orders a clear and complete summary of those claims, issues, or defenses subject to class treatment.” Wachtel ex rel. Jesse v. Guardian Life Ins. Co. of Am., 453 F.3d 179, 184 (3d Cir.2006) (noting current practice often falls short of that standard). Here, plaintiffs motion did not originally discuss this
Accordingly, as the court discusses the propriety of class certification, it is doing so with an eye toward the class definition and the class claims, issues, and/or defenses set forth above. With these threshold issues resolved, then, the court will proceed to evaluate the propriety of class certification.
II. Class Certiñeation
In determining whether class certification is appropriate, the court must first find that the proposed class meets the four prerequisites of numerosity, commonality, typicality, and adequacy of representation set forth in Fed.R.Civ.P. 23(a). In re Integra Realty Res., Inc., 354 F.3d 1246, 1262 & n. 3 (10th Cir.2004). If so, the court must then find that the plaintiffs’ claim is maintainable as a class action under one (or more) of the three categories of suits described in Rule 23(b). Id. In this ease, plaintiffs contend that the four prerequisites of Rule 23(a) are satisfied and that the claims can be maintained under both Rule 23(b)(2) and/or Rule 23(b)(3).
A. Four Prerequisites Set Forth in Rule 23(a)
1. Numerosity
Rule 23(a)(1) allows certification of a class only if the proposed class is so numerous that joinder of all class members would be impracticable. In order to satisfy this numerosity requirement, plaintiffs “must present some evidence or otherwise establish by reasonable estimate the number of class members who may be involved.” Rex v. Owens, 585 F.2d 432, 436 (10th Cir.1978). This is a fact-specific inquiry, as there is no set formula for determining if the class is so numerous that it should be certified. Trevizo v. Adams, 455 F.3d 1155, 1162-63 (10th Cir.2006) (publication forthcoming). Here, plaintiffs state that the limited transactional data produced so far shows more than 120 Chemtura customers and more than 250 Bayer customers who would be members of the class. Given this transactional data as well as the nature of the industry and the commerce involved, plaintiffs believe the class consists of hundreds, if not thousands, of geographically dispersed businesses. Based on this estimate, the court finds plaintiffs have satisfied the numerosity requirement because joinder of all class members would be impracticable. Indeed, Chemtura does not dispute that the proposed class satisfies the numerosity requirement.
B. Commonality
Rule 23(a)(2) requires the presence of questions of law or fact common to the class. This requirement is satisfied where members of a putative class “possess the same interest and suffer the same injury.” Gen. Tele. Co. of Sw. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Commonality is not necessary on every issue raised in the ease. Realmonte v. Reeves, 169 F.3d 1280, 1285 (10th Cir.1999). A finding of commonality “requires only a single issue common to the class.” J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir.1999). Here, the court is satisfied that the individual claims of the putative class members share common issues of law and fact. These include, for example, whether defendants and their co-conspirators conspired to fix, raise, maintain or stabilize prices of the relevant products; whether they conspired to allocate their major customers, accounts, or territories;
S. Typicality
Rule 23(a)(3) requires the named plaintiffs to show that the claims or defenses of the representative parties are typical of those of the class members they seek to represent. Rector v. City & County of Denver, 348 F.3d 935, 949 (10th Cir.2003). In this case, Chemtura argues that none of the named plaintiffs purchased polyester polyols on a stand-alone basis and therefore their claims are not typical of other class members who did purchase polyester polyols. Chemtura’s argument is essentially twofold. First, Chemtura points out that Maine Tire and UPI did not purchase polyester polyols on a stand-alone basis. Instead, Maine Tire and UPI purchased polyester prepolymers; UPI also purchased polyurethane systems. Second, Chemtura contends that Skypark has not presented any evidence that it purchased polyester polyols or related polyurethane systems, and that although Skypark’s assign- or purchased polyester polyols on a standalone basis, Skypark does not have standing to assert a claim because Skypark is an assignee. The court finds these arguments to be without merit for two reasons.
First, it is well established that “differing fact situations of class members do not defeat typicality under Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory.” Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988); see also Anderson v. City of Albuquerque, 690 F.2d 796, 800 (10th Cir.1982) (noting it is well established that the claims of all the class need not be identical to those of the named plaintiffs). Here, plaintiffs’ claims are typical of the claims of the other putative class members because they are all based on the same legal or remedial theory, which is that they suffered damages by virtue of the fact that they all purchased polyester polyols and related chemical systems at prices that were allegedly artificially inflated because of the price-fixing conspiracy among Bayer, Chemtura, and their coconspirators. “[Tjhere is substantial legal authority holding in favor of a finding of typicality in price fixing conspiracy cases, even where differences exist between plaintiffs and absent class members with respect to pricing, products, and/or methods of purchasing products.” In re Dynamic Random Access Memory (DRAM) Antitrust Litig., Case No. 02-1486, 2006 WL 1530166, at *5 (N.D.Cal. June 5, 2006) (collecting case law). This is because, in conspiracy cases, the plaintiffs’ claims are typical of those of the class because the claims all depend on proof of the antitrust violation by the defendants, not on the plaintiffs’ individual positions. Id.; see also 6 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 18.9, at 30 (4th ed.2002) (noting the typicality requirement can be met “even though there were many products sold at varied prices” because typicality refers to the nature of the claim, “not to the specific facts from which it arose”). Accordingly, the court is satisfied that the named plaintiffs’ claims are typical of the claims of the other putative class members.
As to Chemtura’s related argument that Skypark does not have standing to assert claims because it has not produced any evidence showing that it purchased the relevant chemicals during the class period, the court simply notes that Rule 17(a) of the Federal
Related to this argument is Chemtura’s argument based on its view of the evidence concerning Burtin’s chemical purchases: Chemtura contends that plaintiffs have failed to produce “invoices, receipts, shipping papers or otherwise plausible evidence” to establish that Burtin purchased polyester polyols and/or related polyurethane systems during the class period. The court finds this argument, which essentially is that plaintiffs have not produced “good enough” evidence, to be without merit at this procedural juncture. Although the court may not blindly rely on conclusory allegations in the complaint, the court generally should accept the allegations in the complaint as true. Here, plaintiffs’ complaint specifically alleges that Skypark f/k/a Burtin purchased these chemicals from one or more of the defendants through the class period. (Consol. Class Action Compl. (doc. # 39) H11, at 5.) Additionally, Mr. Burtin, who was the individual responsible for purchasing urethane chemicals for Burtin, testified in his deposition that he believed the corporation purchased two or three truckloads of polyester polyols at a rate of approximately one truckload a year beginning in the early to mid-90s. Additionally, a search of Skypark’s accounting records reflected at least two purchases of polyester polyols from Ruco, one of Bayer’s predecessors, in 1999. The allegations in plaintiffs complaint as buttressed by other evidence in the record, then, indicates that Burtin purchased polyester polyols during the class period. The court should not endeavor to resolve the merits of the case at the class certification stage.
A Adequacy of Representation
Rule 23(a)(4) requires that the named plaintiffs) must fairly and adequately protect the interests of class members. To satisfy
B. Certification Under Rule 23(b)(3)
To certify a class under Rule 23(b)(3), the court must find that: (1) common questions predominate over questions affecting only individual members; and (2) class resolution is superior to other available methods for the fair and efficient adjudication of the controversy. Fed.R.Civ.P. 23(b)(3); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Chemtura’s primary argument in opposition to class certification is that plaintiffs have failed to show that common questions predominate over individual questions and that a class action is superior to individual actions. Chemtura contends that plaintiffs have not shown they can demonstrate antitrust impact or damages using common proof on a class-wide basis. Chemtura also contends that, for similar reasons, common issues will not predominate concerning plaintiffs allegation that the applicable statute of limitations should be tolled because Bayer and Chemtura fraudulently concealed the alleged price-fixing conspiracy.
1. Predominance
“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., 521 U.S. at 623, 117 S.Ct. 2231. “The nature of the evidence that will suffice to resolve a question determines whether the question is common or individual.” Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir.2005). If the proposed class members will need to present evidence that varies from member to member in order to make out a prima facie case, then it is an individual question. Id. If, on the other hand, the same evidence will suffice for each member to make out a prima facie ease, then it is a common question. Id. To establish an antitrust violation, a plaintiff must prove (1) a violation of the antitrust laws, (2) that plaintiffs suffered some resulting injury from the violation (also called impact), and (3) the measure of damages. See Deiter v. Microsoft Corp., 436 F.3d 461, 467 (4th Cir.2006); Blades, 400 F.3d at 566; Bell Atlantic Corp. v. AT & T Corp., 339 F.3d 294, 302 & n. 12 (5th Cir.2003). Thus, the court must examine whether plaintiffs have demonstrated that these three elements may be proven by common proof on a class-wide basis.
a. Violation of the Antitrust Laws
Clearly, the issue of whether Chemtura violated the antitrust laws will be a common one among all of the class members. The central allegation in plaintiffs’ complaint is that Bayer and Chemtura engaged in a price-fixing conspiracy with respect to polyester polyols and related polyurethane systems. Thus, plaintiffs can present common proof on the issue of whether the defendants engaged in this combination or conspiracy. This issue will necessarily focus on the conduct of Bayer and Chemtura, not on the individual conduct of class members. See, e.g., In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir.2001) (affirming district court’s determination that common proof could be used to prove antitrust violations); see also 7AA Charles Alan Wright et al., Federal Practice & Procedure § 1781, at 228 (3d ed.2005) (noting that “whether a conspiracy exists is a common question”); 6 Alba Conte & Herbert Newberg, Newberg on Class Actions § 18.28, at 102 (4th ed. 2002) (“As a rule, the allegation of a price-fixing conspiracy is sufficient to establish predominance of common questions.”). Chemtura does not dispute this point.
b. Fact of Injury from the Antitrust Violation, or “Impact”
The far more pivotal issue is whether common issues will predominate resolution of the
In response, Chemtura submitted an expert declaration from its own economist, Dr. Barry C. Harris. Dr. Harris opines that Dr. Tollison did not set forth a methodology that would show class-wide impact by common proof because the economic assumptions upon which Dr. Tollison’s opinion rests are incorrect as applied to the relevant product market. Dr. Harris further states that he performed an empirical economic analysis based on defendants’ actual transaction data and that, in reality, prices are established on a customer-by-customer basis and a product-by-product basis; consequently, separate product-specific and customer-specific inquires of actual transaction prices would be necessary to show impact. He explains that an examination of the data reflects that the changes in actual prices of polyester polyols and polyurethane systems were not related to changes in the list prices, and that pricing patterns varied significantly among purchasers of the same products. Additionally, he explains that documents from Chemtura provide evidence that prices are regularly negotiated with customers on an individualized basis with those negotiations taking into consideration different factors such as volume discounts, discounts to help specific customers be more competitive with their own pricing, payment terms, competitive pressure to lower prices, and products being sold in different competitive markets. Chemtura contends that because list prices did not correlate with transaction prices in any consistent way, and because many customers never received list prices or used them as a starting point for negotiations, an analysis of list price cannot supply proof of impact. Chemtura points out that Dr. Tollison did not consider the customer-specific contracting practices or how they could be squared with his assumption of common proof. Ultimately, Chemtura contends that the circumstances of this case are similar to those rejected by the court in Sample v. Monsanto Co., 218 F.R.D. 644 (E.D.Mo.2003) (holding plaintiffs failed to demonstrate that antitrust impact could be measured on a class-wide basis with common proof where the plaintiffs presumed “class-wide impact without any consideration of whether the markets ... actually operated in such a manner”).
Plaintiffs then submitted a supplemental declaration from Dr. Tollison in which he responded to the opinions and assertions made by Dr. Harris in his report. In Dr. Tollison’s supplemental report, he adheres to the opinion stated in his initial report that “common impact derives from the structure of the industry, the behavior of the defendants in the industry, and the behavior of pricing within the industry.” (Tollison Supp. Report 112, at 2.) He opines that common impact derives, among other things, from the
As the record stood immediately after Chemtura filed its memorandum in opposition to plaintiffs motion for class certification (which included Dr. Harris’s expert report), the court would have had a much more difficult task evaluating whether common questions will predominate the determination of antitrust impact. But, now that Dr. Tollison has buttressed his initial report with his far more comprehensive, detailed, and thorough supplemental report, his opinions satisfy the court that the issue of antitrust injury in this case is susceptible to common proof on a class-wide basis notwithstanding arguable product-specific and customer-specific pricing disparities. Dr. Tollison’s thirty-page supplemental report was prepared after he had reviewed Dr. Harris’s declaration and related materials, numerous deposition transcripts, and databases provided by Bayer and Chemtura. Appendix A to his supplemental report contains a persuasive, thirteen-page, detailed discussion with sixty-seven in-depth footnotes discussing the errors in Dr. Harris’s methoIodogy. Appendix B consists of more than twenty pages of charts, ten of which demonstrate the relationship between quantity and price along with comparisons to the industry median price or quantity, and ten of which evidence a correlation between customers’ price increases at the time of list price increases. Finally, Appendix C contains his illustrative regression model. Ultimately, it is not the court’s task at this procedural juncture to resolve on the merits the issue of whether plaintiffs have in fact established that they suffered injury as a result of the alleged conspiracy by weighing the conflicting expert reports or engaging in statistical dueling of the experts. See In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 135. Rather, at this procedural juncture the court must remain focused on “whether plaintiffs expert evidence is sufficient to demonstrate common questions of fact warranting certification of the proposed class, not whether the evidence will ultimately be persuasive.” Id; see also In re Linerboard, 305 F.3d at 152 (“Plaintiffs need only make a threshold showing that the element of impact will predominantly involve generalized issues of proof, rather than questions which are particular to each member of the plaintiff class.”); In re Bulk (Extruded) Graphite Prods. Antitrust Litig., Case No. 02-6030, 2006 WL 891362, at *10 (D.N.J. Apr.4, 2006) (emphasis added) (“The operative question here is not whether the plaintiffs can establish class-wide impact, but whether class-wide impact may be proven by evidence common to all class members.”); In re Dynamic Random Access Memory (DRAM) Antitrust Litig., Case No. 02-1486, 2006 WL 1530166, at *9 (N.D.Cal. June 5, 2006) (“Plaintiffs need only advance a plausible methodology to demonstrate that antitrust injury can be proven on a class-wide basis.”). Here, the court is persuaded that plaintiffs have met their burden of showing that the issue of whether each of the plaintiffs suffered some resulting injury from the alleged price-fixing conspiracy may be proven by common proof on a class-wide basis. Accordingly, common issues will likely predominate this inquiry.
The court is also satisfied that plaintiffs have suggested a potentially feasible method for proving damages on a class-wide basis. Dr. Tollison opined in his initial report that several widely accepted and feasible methods may be used to estimate damages on a class-wide basis, including the “before and after” approach, multiple regression analysis, and comparison of prices to cost indices. In his supplemental report, he reaffirmed that damages can be determined on a class-wide basis using formulaic methodologies customarily used in these types of cases. He further noted that “there appear to be ample transactional pricing and other data from Chemtura and Bayer with which, after further discovery, to apply any of several damage methodologies typically used in antitrust class action matters (in-period versus out-of-period pricing, for example).” (Tollison Supp. Report 112, at 2.) Dr. Tollison also states that nothing Dr. Harris said in his opinion changed Dr. Tollison’s opinion that a common formulaic model of damages can be specified and estimated in this ease. Thus, damages are also likely susceptible to class-wide proof, as well. Even if individualized issues (rather than common issues) were to predominate the damage inquiry, the more appropriate course of action would be to bifurcate a damages phase and/or decertify the class as to individualized damages determinations. In other words, even if individualized issues predominate the issue of damages, the court believes that common questions nonetheless predominate in this ease because common questions will govern the more difficult, threshold liability issues of proving an antitrust violation and impact.
d. Fraudulent Concealment
Finally, plaintiffs allege that the four-year statute of limitations for antitrust claims should be tolled based on the doctrine of fraudulent concealment, which tolls the limitation period when a plaintiffs cause of action has been obscured by the defendant’s conduct. The fraudulent concealment tolling doctrine is “read into every federal statute of limitation.” Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946). To toll the statute of limitations based on fraudulent concealment, plaintiffs must show: (1) the use of fraudulent means by the defendants; (2) successful concealment from plaintiffs; and (3) that plaintiffs did not know or by the exercise of due diligence could not have known that they might have a cause of action. Ballen v. Prudential Bache Sec., Inc., 23 F.3d 335, 337 (10th Cir.1994). Of course, “certain determinations involving the fraudulent concealment defense to the statute of limitations will require individualized proof, which might vary among the” class member plaintiffs. In re Linerboard Antitrust Litig., 305 F.3d 145, 162 (3d Cir.2002). But the common issue of concealment will predominate because the key inquiry will focus on the defendants’ conduct — that is, what the defendants did— rather than on the plaintiffs’ conduct. See id. (noting the fact of concealment is the “polestar” in a fraudulent concealment analysis). Consequently, the court believes that common issues will predominate the fraudulent concealment determination. As with the possibility of individualized damage issues, the court believes the more appropriate course of action with respect to any individualized fraudulent concealment issues would be to adjudicate them at a later phase of the litigation. See id. (“Many courts faced with similar circumstances have certified class status with the expectation that individual questions concerning fraudulent concealment can be resolved at a later damages phase.”); see also In re Vitamins Antitrust Litig., 209 F.R.D. 251, 268-70 (D.D.C.2002) (holding common issues would predominate determination of fraudulent concealment for purposes of tolling the statute of limitation).
e. Conclusion Regarding Predominance
In sum, the court is satisfied that the key issues plaintiffs will need to prove are susceptible to common proof on a class-wide basis. These common questions will include the two issues necessary to establish liability- — antitrust injury and impact — as well as
2. Superiority
Because these common issues will predominate, the court believes class resolution is superior to other available methods for the fair and efficient adjudication of this lawsuit. The requirement that a class action be the superior method of resolving the claims insures that there is no other available method of handling the litigation which has greater practical advantages. Fed.R.Civ.P. 23 advisory committee notes to the 1966 amendments. Here, the obvious alternative to a class action would be for plaintiffs to bring individual suits against defendants. This would be grossly inefficient, costly, and time consuming because the parties, witnesses, and courts would be forced to endure unnecessarily duplicative litigation. The hundreds, and perhaps thousands, of class members are dispersed across the country, each with relatively similar claims. Certainly, the most feasible way for these plaintiffs to pursue their claims is by way of a class action. Even though a second (perhaps cumbersome and tedious) phase may be required to determine individualized issues relating to damages or fraudulent concealment, the parties will at least benefit from the initial phase, which presumably will result in a determination of liability or non-liability, thus perhaps altogether obviating the need for a second phase. Thus, the court is persuaded that a class action is by far the best method for resolving the claims at issue in this lawsuit. Accordingly, the court finds that certification of this class under Rule 23(b)(3) is warranted.
F. Certification Under Rule 23(b)(2)
Plaintiffs also ask the court to certify the class under Rule 23(b)(2). Rule 23(b)(2) allows certification where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” In this case, two related considerations bear on the court’s determination that certification under Rule 23(b)(2) is not appropriate. First, the nature of this case does not lend itself particularly well to a determination that Chemtura is continuing to act on grounds generally applicable to the class such that final injunctive or declaratory relief with respect to the class as a whole would be appropriate. Chemtura has already been involved in criminal proceedings with respect to some of the alleged price-fixing behavior at issue in these civil proceedings. It has been given conditional amnesty and paid millions of dollars in fines. Under these circumstances involving a high degree of scrutiny of its alleged price-fixing behavior, it seems highly unlikely that Chemtura is continuing to act on grounds generally applicable to the class such that injunctive relief will be necessary to ensure Chemtura’s continuing compliance with antitrust regulations.
A second and related consideration is that certification under Rule 23(b)(2) is inappropriate in “'cases in which the appropriate final relief relates exclusively or predominantly to money damages.’ ” Monreal v. Potter, 367 F.3d 1224, 1236 (10th Cir.2004) (quoting the advisory committee notes to Rule 23); see also Boughton v. Cotter Corp., 65 F.3d 823, 827 (10th Cir.1995) (finding the district court did not abuse its discretion where it declined to certify the class under Rule 23(b)(2) because the relief sought was primarily money damages). In this case, it is clear to the court that the primary relief sought is money damages. The court seriously doubts plaintiffs would be pursuing the claims at issue in this lawsuit were it not for the monetary aspect of the case. In fact,
III. Appointment of Counsel
An order certifying a class must also appoint class counsel that will adequately represent the interests of the class. Fed. R.Civ.P. 23(e)(1)(B), (g)(1). The court must consider the work counsel has done in identifying or investigating potential claims in the actions, counsel’s experience in handling class actions and other complex litigation and claims of the type asserted in the present action, counsel’s knowledge of the applicable law, and the resources counsel will commit to representing the class. Fed.R.Civ.P. 23(g)(1)(C). For the reasons stated on the record at the initial conference in these consolidated cases on October 15, 2004, the court is satisfied that the firms of Ross, Dixon & Bell, L.L.P.; Glancy Binkow & Goldberg LLP; Loekridge Grindal Ñauen, P.L.L.P.; and Much Shelist Freed Denenberg Ament & Rubenstein, P.C. satisfy these criteria and will adequately represent the interests of the class as lead counsel. Stueve Siegel Hanson Woody LLP shall continue to serve as liaison counsel.
IV. Notice
Rule 23(e)(2)(B) provides that “[f|or any class certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” The court believes that the overwhelming majority of, if not all, class members can likely be identified through reasonable efforts. To that end, defendants are directed to provide to plaintiffs the names, addresses, and telephone numbers of all customers who are potential members of the class on or before September 14, 2006. Also on or before September 14, 2006, plaintiffs shall prepare and submit to the court for approval an order regarding notice that complies with the requirements of Fed.R.Civ.P. 23(c).
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel (doc. # 171) is granted in part and denied in part as set forth above.
IT IS SO ORDERED.
. The plaintiffs also originally included Industrial Rubber Products, L.L.C. and Kryptane Systems, LLC, but they both subsequently withdrew from being named plaintiffs in this case.
. Polyols are typically either ether-based or ester-based. Hence, the term polyester polyols for this set of consolidated cases and the term polyether polyols for the other set of consolidated cases in this MDL proceeding.
. Specifically, the parties to the settlement agreement are Bayer AG, Bayer Corporation, Bayer MaterialScience AG, and Bayer MaterialScience LLC (f/k/a Bayer Polymers LLC). The court also has stayed class proceedings as to defendants Rhein Chemie Corporation and Rhein Chemie Rheinau GmbH because, under the terms of the settlement, plaintiffs' claims against them are to be released.
. After the class certification hearing, plaintiffs submitted a revised proposed order for the court to grant their motion for class certification. In that proposed order, they proposed yet a different class definition including "products ... containing polyester polyols, including without limitation polyester prepolymers; thermoplastic urethanes; elastomers; and polyurethane systems (defined as any polyurethane product whose principal inputs are an isocyanate and a polyester polyol).” The court declines to adopt this class definition because it contains new verbiage that is arguably critical but was not proposed until such a late date (iafter plaintiffs submitted their reply brief and after the class certification hearing) that defendants have not had an opportunity to be heard concerning this proposed class definition. See Green v. New Mexico, 420 F.3d 1189, 1196-97 (10th Cir.2005) ("Generally, the nonmoving party should be given an opportunity to respond to new material raised for the first time in the movant's reply.”); Minshall v. McGraw Hill Broad. Co., 323 F.3d 1273, 1288 (10th Cir.2003) (argument raised for the first time in reply brief is waived) (citing Coleman v. B-G Maint. Mgmt., 108 F.3d 1199, 1205 (10th Cir.1997) (issues not raised in the opening brief are deemed abandoned or waived)). If the parties believe plaintiffs' latest proposed class definition more accurately defines the class, they are of course welcome to file a motion to reconsider.
. The court is not ruling here that Skypark necessarily is the real party in interest. That determination is a factual issue that must be resolved based on the evidence concerning Burtin's assignment of its rights to Skypark. Chemtura has not challenged the validity of the purported assignment at this procedural juncture, and the court therefore confines its analysis accordingly. The court is simply rejecting Chemtura's argument that plaintiffs’ failure to present evidence that Skypark itself (as opposed to Burtin) purchased the relevant chemicals precludes class certification.
. At oral argument, counsel for Chemtura argued that Burtin made these purchases from Ruco before Ruco was purchased by Bayer, and therefore "[tjhose are not conspiracy purchases.” (Class Cert. Hrg. Tr. at 61:17.) But the court believes that the implications of this assertion involve issues of fact that must be resolved on the merits, not at the class certification stage. At this procedural juncture, the court is holding only that it is satisfied that Skypark has made an adequate showing that its claims are typical of those of the putative class members in the sense that its predecessor purchased urethane chemicals that were within the scope of the alleged price-fixing conspiracy. Chemtura may of course raise this argument again at a more appropriate procedural juncture in which the court is at liberty to examine the merits of Skypark's claims.
. Of course, as this litigation progresses Chemtura is free to continue to challenge the persuasive
. The court recognizes that it could certify a 23(b)(2) class with respect to particular issues. See Fed.R.Civ.P. 23(c)(4)(A). Plaintiffs, however, have made no such request, opting instead to seek wholesale certification under 23(b)(2), which the court rejects for the reasons stated.
