OLEAN WHOLESALE GROCERY COOPERATIVE, INC., BEVERLY YOUNGBLOOD, PACIFIC GROSERVICE, INC., DBA Pitco Foods, CAPITOL HILL SUPERMARKET, LOUISE ANN DAVIS MATTHEWS, JAMES WALNUM, COLIN MOORE, JENNIFER A. NELSON, ELIZABETH DAVIS-BERG, LAURA CHILDS; NANCY STILLER; BONNIE VANDERLAAN; KRISTIN MILLICAN; TREPCO IMPORTS AND DISTRIBUTION, LTD.; JINKYOUNG MOON; COREY NORRIS; CLARISSA SIMON; AMBER SARTORI; NIGEL WARREN; AMY JOSEPH; MICHAEL JUETTEN; CARLA LOWN; TRUYEN TON-VUONG, AKA David Ton; A-1 DINER; DWAYNE KENNEDY; RICK MUSGRAVE; DUTCH VILLAGE RESTAURANT; LISA BURR; LARRY DEMONACO; MICHAEL BUFF; ELLEN PINTO; ROBBY REED; BLAIR HYSNI; DENNIS YELVINGTON; KATHY DURAND GORE; THOMAS E. WILLOUGHBY III; ROBERT FRAGOSO; SAMUEL SEIDENBURG; JANELLE ALBARELLO; MICHAEL COFFEY; JASON WILSON; JADE CANTERBURY; NAY ALIDAD; GALYNA ANDRUSYSHYN; ROBERT BENJAMIN; BARBARA BUENNING; DANIELLE GREENBERG; SHERYL HALEY; LISA HALL; TYA HUGHES; MARISSA JACOBUS; GABRIELLE KURDT; ERICA PRUESS; SETH SALENGER; HAROLD STAFFORD; CARL LESHER; SARAH METIVIER SCHADT; GREG STEARNS; KARREN FABIAN; MELISSA BOWMAN; VIVEK DRAVID; JODY COOPER; DANIELLE JOHNSON; HERBERT H. KLIEGERMAN; BETH MILLINER; LIZA MILLINER; JEFFREY POTVIN; STEPHANIE GIPSON; BARBARA LYBARGER; SCOTT A. CALDWELL; RAMON RUIZ; THYME CAFE & MARKET, INC.; HARVESTERS ENTERPRISES, LLC; AFFILIATED FOODS, INC.; PIGGLY WIGGLY ALABAMA DISTRIBUTING CO., INC.; ELIZABETH TWITCHELL; TINA GRANT; JOHN TRENT; BRIAN LEVY; LOUISE ADAMS; MARC BLUMSTEIN; JESSICA BREITBACH; SALLY CRNKOVICH; PAUL BERGER; STERLING KING; EVELYN OLIVE; BARBARA BLUMSTEIN; MARY HUDSON; DIANA MEY; ASSOCIATED GROCERS OF NEW ENGLAND, INC.; NORTH CENTRAL DISTRIBUTORS, LLC; CASHWA DISTRIBUTING CO. OF KEARNEY, INC.; URM STORES, INC.; WESTERN FAMILY FOODS, INC.; ASSOCIATED FOODS STORES, INC.; GIANT EAGLE, INC.; MCLANE COMPANY, INC.; MEADOWBROOK MEAT COMPANY, INC.; ASSOCIATED GROCERS, INC.; BILO HOLDING, LLC; WINNDIXIE STORES, INC.; JANEY MACHIN; DEBRA L. DAMSKE; KEN DUNLAP; BARBARA E. OLSON; JOHN PEYCHAL; VIRGINIA RAKIPI; ADAM BUEHRENS; CASEY CHRISTENSEN; SCOTT DENNIS; BRIAN DEPPERSCHMIDT; AMY E. WATERMAN; CENTRAL GROCERS, INC.; ASSOCIATED GROCERS OF FLORIDA, INC.; BENJAMIN FOODS LLC; ALBERTSONS COMPANIES LLC; H.E. BUTT GROCERY COMPANY; HYVEE, INC.; THE KROGER CO.; LESGO PERSONAL CHEF LLC; KATHY VANGEMERT; EDY YEE; SUNDE DANIELS; CHRISTOPHER TODD; PUBLIX SUPER MARKETS, INC.; WAKEFERN FOOD CORP.; ROBERT SKAFF; WEGMANS FOOD MARKETS, INC.; JULIE WIESE; MEIJER DISTRIBUTION, INC.; DANIEL ZWIRLEIN; MEIJER, INC.; SUPERVALU INC.; JOHN GROSS & COMPANY; SUPER STORE INDUSTRIES; W LEE FLOWERS & CO INC.; FAMILY DOLLAR SERVICES, LLC; AMY JACKSON; FAMILY DOLLAR STORES, INC.; KATHERINE MCMAHON; DOLLAR TREE DISTRIBUTION, INC.; JONATHAN RIZZO; GREENBRIER INTERNATIONAL, INC.; JOELYNA A. SAN AGUSTIN; ALEX LEE, INC.; REBECCA LEE SIMOENS; BIG Y FOODS, INC.; DAVID TON; KVAT FOOD STORES, INC., DBA Food City; AFFILIATED FOODS MIDWEST COOPERATIVE, INC.; MERCHANTS DISTRIBUTORS, LLC; BROOKSHIRE BROTHERS, INC.; SCHNUCK MARKETS, INC.; BROOKSHIRE GROCERY COMPANY; KMART CORPORATION; CERTCO, INC.; RUSHIN GOLD, LLC, DBA The Gold Rush; UNIFIED GROCERS, INC.; TARGET CORPORATION; SIMON HINDI, LLC; Fareway Stores, Inc.; Moran Foods, LLC, DBA Save-A Lot; WOODMAN‘S FOOD MARKET, INC.; DOLLAR GENERAL CORPORATION; SAM‘S EAST, INC.; DOLGENCORP, LLC; SAM‘S WEST, INC.; KRASDALE FOODS, INC.; WALMART STORES EAST, LLC; CVS PHARMACY, INC.; WALMART STORES EAST, LP; BASHAS’ INC.; WAL-MART STORES TEXAS, LLC; MARC GLASSMAN, INC.; WAL-MART STORES, INC.; 99 CENTS ONLY STORES; JESSICA BARTLING; AHOLD U.S.A., INC.; GAY BIRNBAUM; DELHAIZE AMERICA, LLC; SALLY BREDBERG; ASSOCIATED WHOLESALE GROCERS, INC.; KIM CRAIG; MAQUOKETA CARE CENTER; GLORIA EMERY; ERBERT & GERBERT‘S, INC.; ANA GABRIELA FELIX GARCIA; JANET MACHEN; JOHN FRICK; PAINTED PLATE CATERING; KATHLEEN GARNER; ROBERT ETTEN; ANDREW GORMAN; GROUCHO‘S DELI OF FIVE POINTS, LLC; EDGARDO GUTIERREZ; GROUCHO‘S DELI OF RALEIGH; ZENDA JOHNSTON; SANDEE‘S CATERING; STEVEN KRATKY; CONFETTI‘S ICE CREAM SHOPPE; KATHY LINGNOFSKI; END PAYER PLAINTIFFS; LAURA MONTOYA; KIRSTEN PECK; JOHN PELS; VALERIE PETERS; ELIZABETH PERRON; AUDRA RICKMAN; ERICA C. RODRIGUEZ v. BUMBLE BEE FOODS LLC; STARKIST CO.; DONGWON INDUSTRIES CO., LTD.; KING OSCAR, INC.; THAI UNION FROZEN PRODUCTS PCL; DEL MONTE FOODS COMPANY; TRI MARINE INTERNATIONAL, INC.; DONGWON ENTERPRISES; DEL MONTE CORP.; CHRISTOPHER D. LISCHEWSKI; LION CAPITAL (AMERICAS), INC.; BIG CATCH CAYMAN LP, AKA Lion/Big Catch Cayman LP; FRANCIS T ENTERPRISES; GLOWFISCH HOSPITALITY; THAI UNION NORTH AMERICA, INC.
No. 19-56514
United States Court of Appeals for the Ninth Circuit
April 8, 2022
D.C. No. 3:15-md-02670-DMS-MDD
and
JESSICA DECKER, JOSEPH A. LANGSTON, SANDRA POWERS, GRAND SUPERCENTER, INC., THE CHEROKEE NATION, US FOODS, INC., SYSCO CORPORATION, GLADYS, LLC, SPARTANNASH COMPANY, BRYAN ANTHONY REO,
Plaintiffs,
v.
and
Defendants.
Dana M. Sabraw, Chief District Judge, Presiding
Argued and Submitted En Banc September 22, 2021
Pasadena, California
Filed April 8, 2022
Before: Andrew J. Kleinfeld, Sidney R. Thomas, Susan P. Graber, William A. Fletcher, Ronald M. Gould, Richard A. Paez, Consuelo M. Callahan, Sandra S. Ikuta, Paul J. Watford, Michelle T. Friedland and Kenneth K. Lee, Circuit Judges.
Opinion by Judge Ikuta;
Dissent by Judge Lee
Antitrust / Class Certification
The en banc court filed an opinion affirming the district court‘s order certifying three subclasses of tuna purchasers who alleged that the suppliers violated federal and state antitrust laws. The en banc court held that the district court did not abuse its discretion in concluding that the purchasers’ statistical regression model, along with other expert evidence, was capable of showing that a price-fixing conspiracy caused class-wide antitrust impact, thus satisfying one of the prerequisites for bringing a class action under
To take advantage of Rule 23‘s procedure for aggregating claims, plaintiffs must make two showings. First, under
Joining other circuits, the en banc court held that plaintiffs must prove by a preponderance of the evidence the facts necessary to carry the burden of establishing that the
The en banc court held that in making the determinations necessary to find that the prerequisites of
The en banc court held that when individualized questions relate to the injury status of class members,
Beginning with the “DPP” class of direct purchasers of the tuna suppliers’ products, such as nationwide retailers and regional grocery stores, the panel held that in order to prevail on their antitrust claim, the DPP class was required to prove that the tuna suppliers engaged in a conspiracy (an antitrust violation), which resulted in antitrust impact in the form of higher prices paid by each member of the class, which in turn led to measurable damages. The question whether each member of the DPP class suffered antitrust impact was central to the validity of each of the DPP claims. The central questions on appeal were whether the expert evidence presented by the DPPs was capable of resolving this issue “in one stroke,” and whether this common question predominated over any individualized inquiry.
The en banc court concluded that the district court did not abuse its discretion in certifying the class. The DPPs relied on the expert testimony and report of Dr. Russell Mangum, whose findings about the tuna market and tuna suppliers’ collusive behavior, pricing correlation test, regression model, and robustness checks confirmed his theory that the price-fixing conspiracy resulted in substantial price impacts, and that the impact was common to the DPPs during the collusion period. The en banc court concluded that the district court did not make any legal or factual error when, in considering whether the DPPs’ evidence was capable of establishing antitrust impact for the class as a whole, the district court reviewed Dr. Mangum‘s expert testimony and report, the rebuttal testimony and report by Dr. John Johnson, and Dr. Mangum‘s reply, and then addressed the parties’ disputes.
The en banc court held that the district court did not abuse its discretion in determining that the evidence presented by the DPPs proved: (1) that the element of antitrust impact was capable of being established class-wide through common proof, and (2) that this common question predominated over individual questions. The en banc court rejected any categorical argument that a pooled regression model cannot control for variables relating to the individual differences among class members. The en banc court also rejected the argument that, in this case, the model‘s output could not plausibly serve as common evidence for all class members given the individual differences among those class members. The en banc court held that the district court did not err by failing to resolve a dispute between the parties as to whether 28 percent of the class did not suffer antitrust impact. Rather, the district court fulfilled its obligation to resolve the disputes raised by the parties in order to satisfy itself that the evidence proves the prerequisites for
The en banc court held that the district court also did not abuse its discretion in determining that the evidence presented by the “CFP” class of indirect purchasers of bulk-sized tuna products and the “EPP” class of individual end purchasers was capable of proving the element of antitrust impact under California‘s Cartwright Act, thus satisfying the prerequisites of
COUNSEL
Gregory G. Garre (argued), Samir Deger-Sen, and Shannon Grammel, Latham & Watkins LLP, Washington, D.C.; Christopher S. Yates, Belinda S. Lee, and Ashley M. Bauer, Latham & Watkins LLP, San Francisco, California; for Defendants-Appellants StarKist Co. and Dongwon Industries Co. Ltd.
Christopher L. Lebsock (argued), Michael P. Lehmann, Bonny E. Sweeney, and Samantha J. Stein, Hausfeld LLP, San Francisco, California, for Plaintiffs-Appellees Direct Purchaser Plaintiff Class.
Jonathan W. Cuneo (argued), Joel Davidow, and Blaine Finley, Cuneo Gilbert & Laduca LLP, Washington, D.C., for
Thomas H. Burt (argued), Wolf Haldenstein Adler Freeman & Herz LLP, New York, New York; Betsy C. Manifold, Rachele R. Byrd, Marisa C. Livesay, and Brittany N. DeJong, Wolf Haldenstein Adler Freeman & Herz LLP, San Diego, California; for Plaintiffs-Appellees End Payer Plaintiff Class.
Corbin K. Barthold and Cory L. Andrews, Washington, D.C., for Amicus Curiae Washington Legal Foundation.
Ashley C. Parrish and Joshua N. Mitchell, King & Spalding LLP, Washington, D.C.; Steven P. Lehotsky, Jonan D. Urick, Daryl Joseffer, and Jennifer B. Dickey, United States Chamber Litigation Center; Anne M. Voigts, Quyen L. Ta, and Suzanne E. Nero, King & Spalding LLP, San Francisco, California; Kerry Perigoe, King & Spalding LLP, Los Angeles, California; Christopher A. Mohr, Software & Information Industry Association, Washington, D.C.; Jeanine Poltronieri, Internet Association, Washington, D.C.; for Amici Curiae Chamber of Commerce of the United States of America, Software Information Industry Association, and Internet Association.
Randy M. Stutz, American Antitrust Institute, Washington, D.C.; Professor Joshua P. Davis, University of San Francisco School of Law, San Francisco, California; Ellen Meriwether, Cafferty Clobes Meriwether & Sprengal, Media, Pennsylvania; for Amicus Curiae American Antitrust Institute.
Jocelyn D. Larkin, Lindsay Nako, and David S. Nahmias, Impact Fund, Berkeley, California, for Amici Curiae Impact Fund, Bet Tzedek, California Rural Legal Assistance Foundation, Centro Legal de la Raza, Legal Aid at Work, and Public Counsel.
Karla Gilbride, Washington, D.C., as and for Amicus Curiae Public Justice P.C.
Deborah A. Elman and Chad Holtzman, Garwin Gerstein & Fisher LLP, New York, New York; Warren T. Burns and Kyle K. Oxford, Burns Charest LLP, Dallas, Texas; Robert S. Kitchenoff, President; Lin Y. Chan, Vice President, Committee to Support the Antitrust Laws, Washington, D.C.; for Amicus Curiae Committee to Support the Antitrust Laws.
Jonathan F. Cohn, Joshua J. Fougere, and Jacquelyn E. Fradette, Sidley Austin LLP, Washington, D.C., for Amicus Curiae Consumer Healthcare Products Association.
IKUTA, Circuit Judge:
The primary suppliers of packaged tuna in the United States appeal the district court‘s order certifying three classes of tuna purchasers who allege the suppliers violated federal and state antitrust laws. The main issue on appeal is whether the purchasers’ statistical regression model, along with other expert evidence, is capable of showing that a price-fixing conspiracy caused class-wide antitrust impact, thus satisfying one of the prerequisites for bringing a class action under
I
Bumble Bee,1 StarKist, and Chicken of the Sea (COSI), and their parent companies are the largest suppliers of packaged tuna in the United States (referred to collectively as the “Tuna Suppliers“). Their products include packaged tuna sold to direct purchasers like Costco and Walmart, and food-service-size tuna products sold to various distributors for resale. Together, the Tuna Suppliers sell over 80 percent of the packaged tuna in the country.
In late 2015, the United States Department of Justice (DOJ) opened an investigation into the packaged tuna
A number of purchasers of the Tuna Suppliers’ products (referred to collectively as the “Tuna Purchasers“) filed putative class actions against the Tuna Suppliers alleging violations of various federal and state antitrust laws. The Tuna Purchasers alleged that the Tuna Suppliers engaged in a conspiracy from November 2010 through at least December 31, 2016 to fix prices of tuna, along with other collusive activities in furtherance of the price-fixing conspiracy. The Tuna Purchasers alleged that they were damaged by the
The Tuna Purchasers’ actions were consolidated in a multidistrict litigation pretrial proceeding in the Southern District of California. The Tuna Purchasers consist of three putative subclasses: (i) direct purchasers of the Tuna Suppliers’ products, such as nationwide retailers and regional grocery stores, who purchased packaged tuna between June 1, 2011 and July 1, 2015 (the “DPPs“); (ii) indirect purchasers of the Tuna Suppliers’ products who bought bulk-sized tuna products between June 2011 and December 2016 for prepared food or resale (the “CFPs“); and (iii) individual end purchasers who bought the Tuna Suppliers’ products between June 1, 2011 and July 1, 2015 for personal consumption (the “EPPs“).
In 2018, the Tuna Purchasers moved to certify the three subclasses under
The Tuna Suppliers timely appealed, and a panel of this court vacated the district court‘s order and remanded. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 993 F.3d 774, 794 (9th Cir. 2021), reh‘g en banc granted, 5 F.4th 950 (9th Cir. 2021). We took the case en banc to consider whether the district court erred in finding that each subclass satisfied the requirement that “questions of law or fact common to class members predominate over any questions affecting only individual members.”
We have jurisdiction under
II
A
To take advantage of Rule 23‘s procedure for aggregating claims, plaintiffs must make two showings. First, the plaintiffs must establish “there are questions of law or fact common to the class,” as well as demonstrate numerosity, typicality and adequacy of representation.4
Second, the plaintiffs must show that the class fits into one of three categories. See
B
Before it can certify a class, a district court must be “satisfied, after a rigorous analysis, that the prerequisites” of both
We have not yet prescribed the plaintiffs’ burden for proving that the prerequisites of
Applying this test here, the balance of interests in this case favors prescribing the preponderance of the evidence standard. The Supreme Court has made clear that
In carrying the burden of proving facts necessary for certifying a class under
In order for the plaintiffs to carry their burden of proving that a common question predominates, they must show that the common question relates to a central issue in the
The claims at issue here are violations of section 1 of the Sherman Antitrust Act,
Therefore, to prove there is a common question of law or fact that relates to a central issue in an antitrust class action, plaintiffs must establish that “essential elements of the cause of action,” such as the existence of an antitrust violation or antitrust impact, are capable of being established through a common body of evidence, applicable to the whole class. Id. (cleaned up). Here, the Tuna Purchasers claim that they can establish the existence of antitrust impact through common proof.
C
In making the determinations necessary to find that the prerequisites of
In determining whether the “common question” prerequisite is met, a district court is limited to resolving whether the evidence establishes that a common question is capable of class-wide resolution, not whether the evidence in fact establishes that plaintiffs would win at trial. While such an analysis may “entail some overlap with the merits of the plaintiff’s underlying claim,” Wal-Mart, 564 U.S. at 351, the
A district court must also resolve disputes about historical facts if necessary to determine whether the plaintiffs’ evidence is capable of resolving a common issue central to the plaintiffs’ claims.10 For instance, in a case in which a nationwide class of plaintiff employees alleged nationwide discrimination by their employer, we held that a district court had to resolve factual disputes at certification regarding whether decisions regarding promotions were made at the local level or by upper management. See Ellis, 657 F.3d at 983–84 & n.7. We reasoned that if such decisions were made only at the local level, plaintiffs “would face an exceedingly difficult challenge in proving that there are questions of fact and law common to the nationwide class.” Id. at 983–84. Nevertheless, the district court was not required to resolve factual disputes regarding ultimate issues on the merits, such as “whether women were in fact discriminated against” or whether the defendant “does in fact have a culture of gender stereotyping and paternalism.” Id. at 983; see also id. at 983 n.8. Resolving such issues would “put the cart before the horse” by requiring plaintiffs to show at certification that they will prevail on the merits. Amgen, 568 U.S. at 460.
Therefore, a district court cannot decline certification merely because it considers plaintiffs’ evidence relating to the common question to be unpersuasive and unlikely to succeed in carrying the plaintiffs’ burden of proof on that issue. See
Nor can a district court decline to certify a class that will require determination of some individualized questions at trial, so long as such questions do not predominate over the common questions. See
When individualized questions relate to the injury status of class members,
In an analogous context, we have held that a district court is not precluded from certifying a class even if plaintiffs may have to prove individualized damages at trial, a conclusion implicitly based on the determination that such individualized issues do not predominate over common ones. Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1155 (9th Cir. 2016); see also Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 988 (9th Cir. 2015); In re Urethane, 768 F.3d 1245, 1255 (10th Cir. 2014) (“The presence of individualized damages issues” does not preclude a court from certifying a class because “[c]lass-wide proof is not required for all issues”).
Therefore, we reject the dissent’s argument that
A district court is in the best position to determine whether individualized questions, including those regarding class members’ injury, “will overwhelm common ones and render class certification inappropriate under
III
We now turn to the Tuna Suppliers’ arguments and consider them in light of this legal framework. We begin with the DPP class, which is the focus of the Tuna Suppliers’
A
The centerpiece of the DPPs’ claim that each member of the class suffered antitrust impact is economist Dr. Russell Mangum’s expert testimony and report. According to his testimony and report, Dr. Mangum reviewed a comprehensive range of available information to develop an understanding of the nature of the market at issue and the details of the Tuna Suppliers’ price-fixing conspiracy. That information included court filings, the Tuna Suppliers’ guilty pleas, discovery materials such as the Tuna Suppliers’ business records concerning their sales of packaged tuna, deposition testimony, publicly available information regarding the tuna industry, and data regarding supply and demand factors that affect the manufacture, sale and consumption of packaged tuna such as raw material prices and details about customer preferences.
Dr. Mangum first performed a pricing correlation test, which demonstrated that the prices of the Tuna Suppliers’ products moved up or down together regardless of product or customer type, and thus supported the proposition that the Tuna Suppliers’ collusion had a common, supra-competitive impact on their prices. Based on this evidence, Dr. Mangum concluded that the Tuna Suppliers’ collusion would result in higher prices that would affect direct purchasers on a class-wide basis, which was consistent with his original theory. This finding is also consistent with “the prevailing [economic] view [that] price-fixing affects all market participants, creating an inference of class-wide impact even when prices are individually negotiated.” In re Urethane, 768 F.3d at 1254.
In simple terms, Dr. Mangum first aggregated (or “pooled”) the actual tuna sale transaction data for the Tuna Suppliers’ sales to the DPPs during both the alleged conspiracy period and during benchmark periods before and after the conspiracy. Dr. Mangum then identified a number of variables (referred to as independent or explanatory variables) that could affect the price of tuna, including product characteristics, input costs, customer type, and variables related to consumer preference and demand, such as disposable income, seasonal effects, and geography. The model then isolated (or “controlled for”) the effect of these explanatory variables on the prices paid by DPPs, which allowed the model to isolate the effect that the conspiracy by itself had on the prices paid by DPPs. When all the tuna sale
Dr. Mangum performed several tests (which he referred to as “robustness checks”) to confirm that his regression model was an appropriate tool to be used by the entire DPP class to show common impact. These tests were used to confirm the reliability of the model, and, according to Dr. Mangum, the test results supported his ultimate conclusion that the model could be used to show class-wide
In sum, Dr. Mangum’s findings about the tuna market and the Tuna Suppliers’ collusive behavior, his pricing correlation test, his regression model, and his robustness checks all confirmed his theory that the conspiracy resulted in substantial price impacts, and that the impact was common to the DPPs during the collusion period.
B
The Tuna Suppliers attacked Dr. Mangum’s expert report on multiple fronts, but primarily relied on their rebuttal expert, economist Dr. John Johnson, who made multiple criticisms of Dr. Mangum’s methodology. The essence of
Dr. Johnson supported this allegation on several grounds. First, Dr. Johnson claimed that a statistical tool called a Chow test20 shows that the data relating to tuna transactions should not be pooled due to individual differences in each purchaser’s transactions. Second, Dr. Johnson criticized Dr. Mangum’s calculation that 94.5 percent of DPPs whose transactional data were included in the model had at least one purchase at a price above the predicted but-for price. According to Dr. Johnson, this calculation was misleading because it was premised on what Dr. Johnson characterized as the faulty assumption that all direct purchasers paid the same 10.28 percent overcharge throughout the proposed class period. Instead, Dr. Johnson performed his own test of Dr. Mangum’s model. As part of this test, Dr. Johnson changed the model to evaluate overcharge based on each individual customer. According to Dr. Johnson, the test showed that of the 604 direct purchasers who bought from the Tuna Suppliers during the proposed class period, the model did not estimate a positive and statistically significant
Dr. Johnson made several additional critiques in arguing that Dr. Mangum’s model was not capable of demonstrating class-wide impact. First, Dr. Johnson argued that Dr. Mangum’s model showed false positives. According to Dr. Johnson, an application of Dr. Mangum’s regression model showed that several DPP class members had paid an overcharge when they purchased tuna products from non-defendants, i.e., tuna suppliers who had not participated in the conspiracy. Second, Dr. Johnson attacked the reliability of Dr. Mangum’s model because Dr. Mangum’s model selected time periods that did not precisely match the class periods in the DPPs’ complaint. Finally, Dr. Johnson criticized Dr. Mangum’s use of a cost index (a calculated measure of costs for all the Tuna Suppliers) as one of the explanatory variables in his model, rather than using actual accounting cost data. According to Dr. Johnson, the use of a cost index inappropriately assumed that the Tuna Suppliers’ costs responded in a like way to supply and demand factors.
In rebuttal, Dr. Mangum rejected Dr. Johnson’s premise that a pooled, aggregated model was inappropriate to use in
Dr. Mangum also rebutted Dr. Johnson‘s additional critiques. With respect to Dr. Johnson‘s claim that the regression model yielded false positives, Dr. Mangum explained that overcharges imposed by non-defendant tuna suppliers (who were not part of the conspiracy) were not false positives but were caused by the “umbrella effect.” This term refers to an economic observation that when many suppliers engage in a conspiracy to raise prices, non-conspirators may raise their prices to supra-competitive levels because of the conspirator‘s dominant market power. See
C
In considering whether the DPPs’ evidence was capable of establishing antitrust impact for the class as a whole, the district court reviewed Dr. Mangum‘s expert testimony and report, the rebuttal testimony and report by Dr. Johnson, and Dr. Mangum‘s reply, and then addressed the parties’ disputes. In doing so, the district court did not make any legal or factual error.
First, the district court considered Dr. Johnson‘s argument that Dr. Mangum‘s pooled regression model masked differences between purchasers, and that when the overcharge is determined for individual DPP class members the model did not show a positive, statistically significant impact for some 28 percent of the class. After reviewing each of the experts’ analyses, the district court credited Dr. Mangum‘s rebuttal of Dr. Johnson‘s critique. Even if the model (when modified by Dr. Johnson to evaluate individual purchasers) did not yield a positive, statistically significant overcharge for some purchasers who had no or too few transactions during the pre-collusion benchmark period, the district court concluded that those purchasers could still rely on the pooled regression model as evidence of the conspiracy‘s impact on similarly situated class members. The court further noted that other evidence in the record, including the guilty pleas and market characteristics, showed that class members suffered a common impact.
The district court rejected Dr. Johnson‘s additional arguments. With respect to Dr. Johnson‘s claim that the false positives in Dr. Mangum‘s model rendered the model unreliable, the court credited Dr. Mangum‘s explanation that the false positives could be explained by the umbrella effect and that Dr. Johnson had erroneously concluded that some tuna was supplied by non-defendants when in fact the tuna was supplied by defendants. The district court also addressed the dispute over Dr. Mangum‘s selection of the time period for the class, and concluded that Dr. Mangum‘s narrowing of the time frame bolstered the reliability of the model. Finally, the district court rejected Dr. Johnson‘s critique of Dr. Mangum‘s use of a cost index, rather than actual accounting cost data. The court credited Dr. Mangum‘s explanation as to why the use of such an index provided more reliable results than actual cost accounting data, and concluded that his use of a cost index did not undermine the reliability of his methodology or model.
We conclude that the district court did not abuse its discretion in reaching this conclusion. The court conducted a rigorous analysis of the expert evidence presented by the parties. The district court did not err legally or factually in concluding that Dr. Mangum‘s pooled regression model, along with other evidence, is capable of answering the question whether there was antitrust impact due to the collusion on a class-wide basis, thus satisfying this prerequisite of
IV
We now turn to the Tuna Suppliers’ claims that the district court abused its discretion in determining that the evidence presented by the DPPs proved: (1) that the element of antitrust impact is capable of being established class-wide
A
The Tuna Suppliers’ main argument is that the district court abused its discretion in determining that Dr. Mangum‘s model is capable of proving common impact for all class members. According to the Tuna Suppliers, Dr. Mangum‘s evidence is not a permissible method of proving class-wide liability because the regression model uses “averaging assumptions,” meaning that the model assumes that all DPPs were overcharged by the same uniform percentage (10.28 percent). These averaging assumptions, according to the Tuna Suppliers, “paper over” individualized differences among class members. Because the tuna market is characterized by individualized negotiations and different bargaining power among the purchasers, the Tuna Suppliers claim it is fundamentally impossible to show common proof of injury. To support this argument, the Tuna Suppliers note that the DPPs who pursued their antitrust claims individually did not rely on a pooled regression model but used actual cost data and claimed an individualized overcharge rate. Given the nature of the tuna market, the Tuna Suppliers conclude,
To the extent that the Tuna Suppliers argue that pooled regression models involve improper “averaging assumptions” and therefore are inherently unreliable when used to analyze complex markets, we disagree. In antitrust cases, regression models have been widely accepted as a generally reliable econometric technique to control for the effects of the differences among class members and isolate the impact of the alleged antitrust violations on the prices paid by class members.23 See, e.g.,
The dissent argues that Dr. Mangum‘s expert opinion “flies against common sense and empirical evidence,” because large retailers like Walmart likely would have used their bargaining power to negotiate lower prices, and thus may not have paid higher prices because of the Tuna Suppliers’ collusion. Dissent at 72. But the district court is not free to prefer its own views about the economics of the
The Tuna Suppliers rely on In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6 (1st Cir. 2008), for the proposition that a market involving individualized negotiations is inherently incompatible with common impact. This reliance is misplaced.26 In New Motor Vehicles, plaintiffs raised a “novel and complex” theory of how consumers were injured by defendants’ alleged horizontal conspiracy to discourage imports of lower-cost cars from Canada into the United States. Id. at 27. Plaintiffs’ theory proceeded in two steps: (1) “but for the defendants’ illegal stifling of competition,” manufacturers would have set lower prices to compete with Canadian imports; and (2) because the manufacturers did not do so, consumers paid higher retail prices. Id. The First Circuit rejected this theory
The Tuna Suppliers also argue that because the individual plaintiffs pursuing their own antitrust claims showed overcharges both above and below the overcharge indicated by Dr. Mangum‘s model, a uniform 10.28 percent overcharge is implausible. We also reject this argument, because it improperly conflates the question whether evidence is capable of proving an issue on a class-wide basis with the question whether the evidence is persuasive. A lack of persuasiveness is not fatal at certification. See Amgen, 568 U.S. at 459–60. For purposes of determining whether
B
The Tuna Suppliers and the dissent next contend that the district court erred by failing to resolve a dispute between the parties as to whether 28 percent of the class did not suffer
In raising this argument, the Tuna Suppliers focus on Dr. Johnson‘s critique of Dr. Mangum‘s model, which stated that when he tested Dr. Mangum‘s model by changing it to evaluate the overcharge specific to each individual member of the DPP class, the test showed that 28 percent of the DPPs could not rely on the model to show an overcharge attributable to the conspiracy. According to the Tuna Suppliers, this evidence indicated that 28 percent of the DPP class did not suffer antitrust impact. And in district court, the Tuna Suppliers argued that “28% of a class—nearly one-third—far exceeds the de minimis number of uninjured class members that some courts have permitted in certifying a class.” Therefore, the Tuna Suppliers argue that the class should not have been certified. Further, the Tuna Suppliers argue that the existence of a large number of uninjured class members raises a question as to whether the class has Article III standing. The Tuna Suppliers contend that because the class cannot be certified (and there are Article III issues) if Dr. Johnson‘s analysis is correct, the district court abused its discretion in failing to resolve the dispute regarding whether
We disagree. First, the Tuna Suppliers and the dissent mischaracterize the import of Dr. Johnson‘s critique. Dr. Johnson did not make a factual finding that 28 percent of the DPP class or 169 class members were uninjured. Instead, Dr. Johnson‘s test was aimed at undermining confidence in Dr. Mangum‘s pooled regression model, because class members with no or limited transactions during the benchmark period could not rely on the model to show that they suffered overcharges. At most, this critique supports the more attenuated argument that Dr. Mangum‘s model is unreliable, or would be unpersuasive to a jury. But the district court considered and resolved this methodological dispute between the experts in favor of Dr. Mangum by crediting his rebuttal that even class members with limited transactions during the class period can rely on the pooled regression model as evidence of impact on similarly situated class members. In other words, the district court determined that Dr. Mangum‘s pooled regression model was capable of showing that the DPP class members suffered antitrust impact on a class-wide basis, notwithstanding Dr. Johnson‘s critique. This was all that was necessary at the certification stage. The DPP class did not have to “first establish that it will win the fray” in order to gain certification under
Neither Dr. Mangum‘s pooled regression model nor Dr. Johnson‘s critique required individualized inquiries into the class members’ injuries. If the jury found that Dr. Mangum‘s model was reliable, then the DPPs would have succeeded in showing antitrust impact on a class-wide basis, an element of their antitrust claim. On the other hand, if the jury were persuaded by Dr. Johnson‘s critique, the jury could conclude that the DPPs had failed to prove antitrust impact on
We need not consider the Tuna Suppliers’ argument that the possible presence of a large number of uninjured class members raises an Article III issue, because the Tuna Purchasers have demonstrated that all class members have
V
We next turn to the Tuna Suppliers’ arguments that the district court abused its discretion in determining that the evidence presented by the CFPs and EPPs was capable of proving the element of antitrust impact under California‘s Cartwright Act, thus satisfying the prerequisites of
A
The CFP subclass includes individuals and commercial entities who purchased bulk sized packaged tuna (packages of 40 ounces or more) from six companies (direct purchasers) which had purchased the tuna from the Tuna Suppliers. The CFPs’ theory of antitrust impact proceeds in two steps. First, the CFPs claim that the Tuna Suppliers’ conspiracy resulted in the direct purchasers paying an overcharge. Second, the CFPs claim that the overcharge was passed on from the direct purchasers to the CFPs.
The CFPs supported this theory with the expert testimony and report of economist Dr. Michael Williams, who employed a methodology substantially similar to that employed by Dr. Mangum. Dr. Williams first conducted a regression analysis to determine the overcharge the CFPs’ suppliers (i.e., the six direct purchasers) incurred because of the Tuna Suppliers’ collusion. Like Dr. Mangum‘s analysis, Dr. Williams‘s regression analysis controlled for the effect of other variables that affected price in order to isolate the effect of the Tuna Suppliers’ collusion. Dr. Williams concluded
Next, Dr. Williams performed a separate regression analysis to determine if those overcharges passed through to the CFPs, and determined that the direct purchasers passed through 92 to 113 percent of their overcharge to the CFPs. Dr. Williams then performed two tests to verify that his estimates applied class-wide, both of which confirmed his theory.
To rebut Dr. Williams‘s analysis, the Tuna Suppliers relied on a critique by economist Dr. Linda Haider. Dr. Haider asserted that Dr. Williams erroneously assumed that all CFPs paid a common overcharge and that the same overcharge was passed through to the individual CFPs. Dr. Haider also contended that some of the CFP class members, such as food preparers and distributors, were not impacted because they could have passed through their overcharges to other purchasers downstream. Finally, Dr. Haider claimed that Dr. Williams‘s model was unreliable because it failed to account for non-defendant tuna purchased by the CFPs’ direct purchasers.
The district court reviewed Dr. Williams‘s report and testimony as well as Dr. Haider‘s critiques, and after resolving the parties’ disputes, concluded that Dr. Williams‘s methodology was valid and capable of resolving the antitrust impact issue in a single stroke, even though the Tuna Suppliers could raise the same critiques at trial to persuade the jury.
We also reject the Tuna Suppliers’ argument based on Dr. Haider‘s contention that some CFP class members may have passed on their overcharges to downstream purchasers. Dr. Haider claimed that the CFPs’ ability to prove common impact was problematic because the impact of overcharges on class members who passed on their overcharges would be different from the impact on members who did not pass on such overcharges. The district court did not abuse its discretion in rejecting this argument on the ground that the Tuna Suppliers had not shown that determining whether or not those class members had passed overcharges down the distribution chain would overwhelm the common issues and require an individualized analysis. Therefore, the district court could reasonably conclude that the common question of
B
The EPP subclass contains individual consumers who purchased the Tuna Suppliers’ products for personal consumption. Thus, like the CFPs, the EPPs are indirect purchasers whose theory of antitrust impact depends on two separate overcharges: first, an overcharge by the Tuna Suppliers to the direct purchasers (i.e., retail stores), and then an overcharge passed on to the EPPs. To carry their burden of showing they could establish class-wide overcharges through common proof, the EPPs offered the testimony of economist Dr. David Sunding, who employed a methodology substantially similar to that employed by Dr. Mangum and Dr. Williams.
Like Drs. Mangum and Williams, Dr. Sunding first conducted a regression analysis to isolate the impact of the collusion on the direct purchasers, which he concluded was an 8.1 percent overcharge from COSI, 4.5 percent from StarKist, and 9.4 percent from Bumble Bee. He then determined that the overcharges passed through to the EPP class members ranged from 65.3 to 135 percent with an estimated pass-through rate of 100 percent for the entire class. Dr. Sunding provided qualitative, quantitative and anecdotal evidence to support his assumption of a pass through rate for the entire class, including an examination of retail scanner data and the Tuna Suppliers’ internal records.
Dr. Haider critiqued Dr. Sunding‘s methodology and findings on many of the same grounds as she criticized Dr. Williams‘s model and conclusions. She also made the
On appeal, the Tuna Suppliers argue only that Dr. Sunding‘s model and testimony was not capable of proving common impact for all class members because of its use of “averaging assumptions.” This argument fails for the reasons explained above. See supra Section IV.A. Thus, the district court properly considered and rejected Dr. Haider‘s arguments, and determined that Dr. Sunding‘s methodology was capable of proving antitrust impact on a class-wide basis. That is enough to satisfy
VI
In a complex market such as the one at issue here, where different purchasers with different bargaining power purchased a range of products at different prices from different suppliers, commentators have raised reasonable questions whether statistical models are capable of resolving the issue of antitrust impact with common proof. See, e.g., Michelle M. Burtis & Darwin V. Neher, Correlation and Regression Analysis in Antitrust Class Certification, 77 Antitrust L.J. 495, 518 (2011). But such statistical models
AFFIRMED.
LEE, Circuit Judge, with whom KLEINFELD, Circuit Judge, joins, dissenting:
Over the past two decades, plaintiffs have notched over $103 billion in settlements from securities class actions alone.1 If we include other types of class actions—wage and
That is why the Supreme Court has urged lower courts to “rigorous[ly]” scrutinize whether plaintiffs have met class certification requirements. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). The majority opinion, however, allows the district court to certify a class, even though potentially about one out of three class members suffered no injury. But if defendants’ econometrician expert is correct that almost a third of the class members may not have suffered injury, plaintiffs have not shown the predominance of common issues under
The district court acknowledged the dueling experts’ differing opinions on this crucial question but held that it would leave that issue for another day—at trial—because it involves a merits issue that a jury should decide. See In re Packaged Seafood Prods. Antitrust Litig., 332 F.R.D. 308, 325–28 (S.D. Cal. 2019). But as a practical matter, that day will likely never come to pass because class action cases almost always settle once a court certifies a class. A district court thus must serve as a gatekeeper to resolve key issues implicating
Punting this key question until later amounts to handing victory to plaintiffs because this case will likely settle without the court ever deciding that issue. The refusal to address this key dispute now is akin to the NFL declining to review a critical and close call fumble during the waning minutes of the game unless and until the game reaches overtime (which, of course, will likely never occur if it does not decide the disputed call). Such a practice is neither fair nor true to the rule.
I thus respectfully dissent.
* * * * *
The U.S. Department of Justice‘s investigation revealed that the three largest domestic producers of packaged tuna colluded to try to inflate the prices of their products. This class action lawsuit soon followed the criminal indictment. Among the plaintiffs include the direct purchasers of the tuna products, ranging from multibillion dollar chain retailers to small mom-and-pop stores. Not surprisingly, some plaintiffs (such as Walmart) wield substantial negotiating leverage: They can demand lower prices or extract additional
Despite the varying negotiating power among the plaintiffs, their expert, Dr. Russell Mangum III, concluded that the tuna producers overcharged the direct purchasers by an average of 10.28%. He also suggested that about 5.5% of the class may not have suffered an injury because of this price-fixing. In contrast, the defendants’ expert, Dr. John Johnson, offered an analysis showing that potentially about 28% of the class members suffered no injury.
Faced with this gaping difference between the two experts’ conclusions, the district court acknowledged that Dr. Johnson‘s “criticisms are serious.” In re Packaged Seafood, 332 F.R.D. at 328. But it held that this question should be left for trial because Dr. Mangum‘s method was reliable under Daubert and “capable of showing” class-wide impact. Id. The majority agrees with the district court, ruling that a class can be certified—even if potentially one out of three members suffered no injury—because Plaintiffs’ expert offered a method “capable” of measuring class-wide impact and the district court can winnow out those uninjured members later at trial. But the majority opinion conflicts with
While around 10,000 class action lawsuits are filed annually3, class actions are “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)).
Among the
The Supreme Court has also reminded us that
Here, the two experts’ contentions centered on
Despite the detailed analysis of the district court, I believe it abused its discretion in committing the same error that we cautioned against in Costco. There, the two dueling experts offered contrasting opinions on whether Costco‘s alleged
But because that dispute implicated
And that is exactly what happened here. The district court found plaintiffs’ expert to be reliable under Daubert, but it also conceded that the defendants’ expert offered a “serious” critique of plaintiffs’ expert opinion. The district court ultimately held that resolving this “battle of the experts” was a merits issue. But the dispute over the number of uninjured class members overlaps with
The majority holds that Dr. Mangum‘s estimate of a 10.2% “average” price inflation meets
I believe that creates a false distinction. Nothing in our decision in Costco or the Supreme Court‘s opinion in
Admittedly, resolving a battle of dueling experts over highly technical issues may seem like a difficult job for a court. But that tough task is likely even more difficult and daunting for jurors. In the end, a “district judge may not duck hard questions by observing that each side has some support . . . Tough questions must be faced and squarely decided, if necessary by holding evidentiary hearings and choosing between competing perspectives.” Id. After reviewing the evidence, a district court must make findings of fact necessary for determining whether
And here, the expert opinion offered by Plaintiffs to show commonality (though admissible) is not persuasive. The majority contends that the expert‘s model is capable of
Major retailers wield significant power over manufacturing and food companies because they represent the major channel to distribute the food products. If a major retail chain refuses to carry a company‘s product after a pricing dispute, it can significantly affect that company‘s bottom line. As one case study put it, “Walmart has huge bargaining power since . . . it is one of the largest distributors for manufacturing [sic]. For instance, 17% of the total sales of P&G and 38.7% of the total sales of CCA Industries rely on Walmart stores. Without Walmart, these businesses would be unable to operate.” Pandey, supra page 10, at 120.
Large retailers can also extract rebate or promotional concessions from the companies by threatening to place their
None of this is to say that Wal-Mart and other retailers achieved those price discounts and promotional credits or rebates here. We simply do not know because Plaintiffs’ expert did not adequately consider it.5 The only way we can find out if Wal-Mart and other major retailers suffered any injury (and if so, how much) would be if we conducted highly individualized analyses of each class member. But that would defeat the commonality requirement under
The majority seemingly waves away this difference in negotiating power between the class members by relying on our oft-quoted language that the “need for individualized findings as to amount of damages does not defeat class certification.” Maj. Op. 30 (citing Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1155 (9th Cir. 2016); Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 988 (9th Cir. 2015)).
We first stated that the “amount of damages is invariably an individual question and does not defeat class action treatment” in Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975). That was a securities fraud class action, and we recognized that “computing individual damages will be virtually a mechanical task” because “the amount of price inflation during the period can be charted.” Id. (emphasis added). Put another way, damages can be easily calculated because it is a plug-and-play exercise: Look at the number of shares bought by each shareholder and the price of the share that day, and compare it to the price inflation caused by the misrepresentation. While each class member may have individualized damages, the damages can be easily calculated for the entire class in “one stroke.” See Wal-mart, 564 U.S. at 350.
Since Barrack, we have applied that concept mostly in employment and wage-and-hour cases. See, e.g., Vaquero, 824 F.3d at 1152 (suing for payment for unpaid hours on non-sales work); Levya v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013) (class action based on wage and hour claims in which defendant‘s “computerized payroll and time-keeping database would enable the court to accurately calculate damages“). Wage-and-hour cases present another mechanical
But here, it will not be a “mechanical task” to calculate the damages for each class member. Blackie, 524 F.2d at 905. The district court will need to conduct individualized mini-trials to determine whether each class member suffered an injury, and if so, what the damages are for each member. That would upend
Finally, the majority suggests that an oversized class with unharmed class members does not pose a practical problem if a method can separate the uninjured from the injured at trial. No harm, no foul, the majority implies. But that cannot be so if a large number of class members (certainly, a third)
If we allow a court to certify a class in which a large number of putative class members have suffered no injury, we will allow plaintiffs to weaponize
So if a court certifies a class with many uninjured class members, it dramatically expands the potential exposure and artificially jacks up the stakes. It matters little that the uninjured class members can be separated at trial because with “the stakes so large . . . settlement becomes almost inevitable—and at a price that reflects the risk of a catastrophic judgment as much as, if not more than, the actual merit of the claims.” In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1016 (7th Cir. 2002). The opportunity at trial to jettison uninjured members from the certified class is a phantom solution because defendants will have little choice but to settle before then.
II. The majority‘s rejection of a de minimis rule creates a circuit split.
I believe the majority also errs in rejecting a de minimis rule. To be sure, a plaintiff need not show that every single putative class member has suffered an injury. But the number of uninjured class members should be de minimis—based on
First, as noted above, the words “common” and “predominate” in
Second, allowing more than a de minimis number of uninjured class members tilts the playing field in favor of plaintiffs. By expressly rejecting a de minimis rule, the majority‘s opinion will invite plaintiffs to concoct oversized classes stuffed with uninjured class members—with little fear of having their class certification bids being denied for lack of “predominance” or “commonality.” And in creating these grossly oversized classes, plaintiffs will inflate the potential
Finally, the majority opinion needlessly creates a split with other circuits that have endorsed a de minimis rule. The D.C. Circuit, for example, suggested that “5% to 6% constitutes the outer limits of a de minimis number.” In re Rail Freight Fuel Surcharge Antitrust Litig., 934 F.3d 619, 624–25 (D.C. Cir. 2019) (cleaned up). The district court had found that the class of 16,065 members (12.7% of whom were uninjured) failed to meet the predominance requirement because more than a ”de minimis” number were uninjured. Id. at 623–24. The D.C. Circuit on appeal affirmed, ruling that the plaintiffs’ model “even if sufficiently reliable, does not prove classwide injury.” Id. at 623. Put another way, “even assuming the model can reliably show injury and causation for 87.3 percent of the class, that still leaves the plaintiffs with no common proof of those essential elements of liability for the remaining 12.7 percent.” Id. at 623–24
Likewise, the First Circuit suggested that “around 10%” of uninjured class members marks the de minimis border. See In re Asacol, 907 F.3d at 47, 51–58. The First Circuit was perhaps willing to look past “a very small absolute number of class members” who have suffered no injury because they “might be picked off in a manageable, individualized process at or before trial.” Id. at 53. But if “there are apparently thousands who in fact suffered no injury . . . [t]he need to identify those individuals will predominate.” Id. at 53–54.
* * * * *
I respectfully dissent.
Notes
Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
- the class is so numerous that joinder of all members is impracticable;
- there are questions of law or fact common to the class;
(continued from page 19)
“Common” and “predominance,” Merriam-Webster Dictionary, available at www.merriam-webster.com/dictionary (last checked on Oct. 21, 2021).
- the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
- the representative parties will fairly and adequately protect the interests of the class.
A class action may be maintained ifThe majority cites the deposition testimony of Plaintiffs’ expert to argue that he considered promotional credits and rebates. Maj. Op. 36, n.16. But the expert added the caveat that he did so only in instances that he “could reliably” calculate the data. He then conceded that he did not include “discount or promotional information” with much of the data but said that “I have done all that I could.” He ultimately concluded that he could measure damages by relying on the average 10.2% “overcharge” analysis in his expert report.Rule 23(a) is satisfied and if . . . (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.