Casket Buyers Can Seek Fees, Costs from Non-Settling Defendants in Antitrust Suit

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

Eleven consumers can proceed with an antitrust action against the largest U.S.casket manufacturer, Batesville Casket Company, and funeral home chain Service Corporation International, but they can not represent a class of casket purchasers, the U.S. Court of Appeals in New Orleans has ruled.
The consumers who had purchased Batesville caskets alleged that the casket maker and the nation’s largest funeral home chains conspired to prevent independent casket discounters from selling Batesville caskets directly to consumers at discounted prices.

Dismissal of the consumers’ claims seeking attorney fees and costs for lack of subject matter jurisdiction was reversed; however, the appellate court affirmed the lower court’s dismissal of claims for injunctive relief and denial of class certification.

The complaining consumers who had settled with one of the original defendants—funeral home chain Stewart Enterprises, Inc.—for an amount greater than the maximum amount of compensatory damages being sought still had standing to seek costs and reasonable attorney fees from the remaining defendants, the appellate court held. The consumers were not seeking compensatory damages beyond those agreed to in the settlement and did not recover the attorney fees and costs available to them under Sec. 4 of the Clayton Act. The Clayton Act provides a successful plaintiff a mandatory award of costs and attorney fees.

The plaintiffs had a right to sue for the statutorily mandated costs and reasonable attorney fees even if the settlement with one defendant meant that no additional compensatory damages actually would be recovered. Actual recovery of compensatory damages was not required. A ruling to the contrary would discourage plaintiffs from making early settlements with some but not all defendants because a settlement could later
operate to preclude full recovery of fees and costs pursuant to the Clayton Act, according to the court.

The consumers lacked standing to seek injunctive relief, the court also ruled. Any harm would have been reparable by a monetary award, and the chance of one of the consumers purchasing another one of the defending manufacturer’s caskets or his or her family purchasing one of the caskets upon the consumer’s death did not create a real or immediate potential future injury. The fact that death is inevitable is not sufficient to establish a real and immediate threat of future harm.

The court also concluded that the Funeral Consumers Alliance, Inc.—a nonprofit consumer rights organization that claims 400,000 individuals as members—lacked Article III standing to pursue injunctive relief. The organization did not allege that there was a real and immediate threat that any of its members would purchase an allegedly overpriced Batesville casket from one of the funeral homes that was alleged to be part of the conspiracy.

Class Certification

The district court did not err by denying certification of a nationwide class of consumers, according to the appellate court. The plaintiffs failed to meet Federal Rule of Civil Procedure 23(b)(3) predominance and superiority requirements. Rule 23(b)(3) requires a party seeking class certification to demonstrate both (1) that questions common to the class members predominate over questions affecting only individual members, and (2) that class resolution is superior to alternative methods for adjudication of the controversy.

The lower court was acting within its discretion when it adopted a magistrate judge’s recommendation, concluding that individualized issues affecting each of the roughly one million purported class members nationwide would predominate over common ones, given the lack of a national market or a nationwide conspiracy. The appellate court rejected the consumers’ argument that the district court “ignored” the evidence of national market and nationwide conspiracy presented by their expert.

Partial Dissent

A dissenting opinion agreed with the denial of class certification and dismissal of injunctive relief claims; however, it contended that subject matter jurisdiction was lacking over the consumers’ claims for costs and attorney fees. The case was moot because the consumers no longer had a “personal stake in the outcome.” The dissenting judge would not have allowed the consumers’ attorneys to seek “a trial merely for their own self-interested ‘byproducts’ of litigation.”

The September 13, 2012, decision in Funeral Consumers Alliance, Inc. v. Service Corporation International will appear at 2012-2 Trade Cases ¶ 78,048.

Direct Purchaser Class Certified in Railroad Fuel Surcharge Case

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The federal district court in Washington, D.C. has approved a class of direct purchasers to pursue price fixing claims against the largest railroads in the United States.

The complaining customers allege that the railroads conspired to fix the prices of rail freight transportation services through the use of rail fuel surcharges. These surcharges were fees added to customers' bills to compensate the defending railroads for increased fuel costs. According to the plaintiffs, the railroads collectively implemented a uniform rail fuel surcharge program and imposed artificially high surcharges that exceeded their increased fuel costs.

The court granted certification of a class of entities or persons that during the relevant period (July 1, 2003, until December 31, 2008) purchased rate-unregulated rail freight transportation services directly from one or more of the defendants and paid a challenged rail freight fuel surcharge. Eight named plaintiffs were designated as the class representatives.

The court also appointed two firms that had served as interim co-lead class counsel as co-lead class counsel for the class.

According to the court, designation of the firms as co-lead class counsel was in the best interests of the class because both firms:

(1) Had zealously represented the interests of the class in litigating the case while serving as interim co-lead class counsel;

(2) Had extensive relevant experience in complex antitrust litigation and knowledge of the law applicable to the case; and

(3) Were willing to commit the resources necessary to represent the class.

The decision is In Re: Rail Freight Fuel Surcharge Antitrust Litigation, 2012-1 Trade Cases ¶77,945.

Class Action on Sam’s Club’s Service Agreement for “As Is” Product Is Certified

This posting was written by Jody Coultas, Editor of CCH State Unfair Trade Practices Law.

A federal district court in Camden, New Jersey certified a class action of Sam’s Club members that brought suit against Wal-Mart under the New Jersey Consumer Fraud Act (CFA) for allegedly failing to disclose that its service agreement for “as-is” products actually excluded “as-is” products from coverage.

Sam’s Club, a membership-only retail warehouse club owned by Wal-Mart, offered its members the option of purchasing service plans. The service plans expressly excluded products sold as-is. However, employees offered the service plans on every product sold despite the “as-is” products exclusion from those plans. Members sought certification of a class of Sam’s Club members that purchased “as-is” products as well as service plans after January 26, 2004.

Class Definition

The proposed definition of the class enumerated by the members’ attorney at oral argument was readily ascertainable, according to the court. The class identified a particular group, specified a particular time frame and location, and enumerated a particular way that the retailer’s conduct purportedly caused the class members harm.

The class included all consumers who, from January 26, 2004 to the present, purchased from Sam's Clubs in the State of New Jersey, a Sam's Club Service Plan to cover “as-is” products. Excluded from the class are consumers whose “as-is” product was covered by a full manufacturer's warranty, was a last-one item, consumers who obtained service on their product, and consumers who have previously been reimbursed for the cost of the service plan.

Federal Rule of 23(a) required the purported class representative to show numerosity, commonality, typicality, and adequacy of representation.

The class was potentially as large as 3,500 members, which would satisfy the numerosity requirement. As with the absent class members, the class representative was sold a service plan to cover an as-is product without being informed that the service plan excluded as-is products. Finally, the class representative’s attorney was experienced with class actions and the class members and representative suffered harm from the same alleged course of conduct.

Predominance of Common Questions

Federal Rule of 23(b)(3) states that a class action may be maintained only if questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action was the superior method of adjudication. The predominance requirement tests whether the proposed class is sufficiently cohesive to warrant adjudication by representation.

All three elements of the CFA claim could be proven by common proof since the harm alleged arose from the same company-wide conduct, according to the court.

The decision is Hayes v. Wal-Mart, D N.J., CCH State Unfair Trade Practices Law ¶32,423.

Nationwide Class Certification of California Ad Claims Vacated

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Certification of a nationwide class was vacated by the U.S. Court of Appeals in San Francisco in an action under California law asserting that Honda’s advertisements misrepresented the characteristics of a braking system.

California Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act could not be applied to the entire nationwide class, and all consumers who purchased or leased an Acura RL automobile could not be presumed to have relied on the advertisements, the court held.

Variances in State Consumer Laws

The law of multiple jurisdictions applied to any nationwide class of purchasers or lessees, according to the court. Variances in state consumer laws overwhelmed common issues and precluded predominance for a single nationwide class.

Reliance on Advertising

Even if the class was restricted only to those who purchased or leased their car in California, common issues of fact would not predominate in the class as currently defined because it almost certainly included members who were not exposed to, and therefore could not have relied on, Honda’s allegedly misleading advertising, the court determined.

Honda’s product brochures and TV commercials fell short of the “extensive and long-term [fraudulent] advertising campaign” at issue in In re Tobacco II Cases (Cal. S. Ct. 2009), CCH Advertising Law Guide ¶63,423.

In the absence of a massive advertising campaign, the relevant class had to be defined in such a way as to include only members who were exposed to advertising that was alleged to be materially misleading, the court concluded.

The decision is Mazza v. American Honda Motor Company, Inc., CCH Advertising Law Guide ¶64,536.

Class Certification Improperly Denied in Hospital Merger Challenge

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

A federal district court abused its discretion when it denied certification to a class of direct purchasers of hospital services in an action challenging a hospital merger, the U.S. Court of Appeals in Chicago has ruled.

Because the denial of class certification was erroneous as a matter of both fact and law, the district court's denial of class certification (2010-1 Trade Cases ¶77,001) was vacated and the matter remanded for further proceedings.

Perfect v. Good Evidence

The degree of uniformity that the district court demanded simply was not required for class certification under Rule 23(b) (3) of the Federal Rules of Civil Procedure, the appellate court ruled. The court explained “it is important not to let a quest for perfect evidence become the enemy of good evidence.”

Antitrust Impact on Proposed Class

The central issue under Rule 23(b) (3) was whether the purchasers could show on a class-wide basis the antitrust impact of the merged entity's actions on the proposed class. Common questions clearly predominate in regard to whether the merger violated federal antitrust law, the appellate court decided. The district court incorrectly applied Rule 23(b)(3)'s predominance requirement when it made uniformity of nominal price increases following the merger a condition for class certification. The plaintiffs’ expert, an economist who specialized in the health care industry, could use common evidence and his proposed methodology to estimate the antitrust impact, if any, of the merger on the members of that class.

Admissibility of Economic Analysis

In addition, the district court failed to determine whether the defense expert's report and opinions were admissible under Federal Rule of Evidence 702 before ruling on the motion for class certification. Before the hearing on class certification, the plaintiffs moved to exclude the report of a private consulting economist. The plaintiffs argued that the expert’s “economic analyses are fundamentally defective” and that the expert’s opinion “should be stricken as a whole.”

The district court's refusal to rule on the plaintiffs' Daubert motion was an error, since the expert’s opinions were critical to the district court's decision. The expert’s report and testimony laid the foundation for the merged entity’s entire argument in opposition to class certification, and the district court relied on the expert’s reasoning when making its decision.

The decision is Messner v. Northshore University Healthsystem, 2012-1 Trade ¶77,763.

Settlement of Diamond Resale Price Fixing Claims Upheld

This posting was written by Darius Sturmer, Editor of CCH Trade Regulation Reporter.

Approval of a proposed $295 million settlement of class action resale price fixing claims against a group of entities related to the world's principal diamond producer was proper, according to an en banc decision of the U.S. Court of Appeals in Philadelphia.

The federal district court approving the settlement did not err in granting certification of nationwide settlement classes consisting of direct purchasers of gem diamonds and indirect purchasers of rough or cut-and-polished diamonds (2008-2 Trade Cases ¶76,304), the appellate court held.

Class Certification

The proposed classes satisfied each of the four requirements enunciated in Federal Rule of Civil Procedure 23(a) as prerequisites to certification—numerosity, commonality, typicality, and adequacy of representation—as well as the predominance and superiority requirements of Rule 23(b)(3).

Predominance was easily shown based on the diamond producer’s alleged conduct and the injury it caused to each and every class member, the appellate court held. The plaintiffs also sufficiently showed that certification under Rule 23(b)(2), which applied to claims seeking injunctive or declaratory relief, was appropriate.

The appellate court rejected an argument advanced by objectors to the settlement that certification of a nationwide settlement class was improper based on differences in state law with respect to indirect purchaser standing.

Rule 23 made clear that a district court had limited authority to examine the merits of individual claims when conducting the certification inquiry. Such an inquiry was "particularly unwarranted in the settlement context" since a district court did not need to envision the form that a trial would take or consider the available evidence and methods proposed for proving the disputed element at trial, the court stated. Thus, the district court did not “inappropriately subordinate” state sovereignty in certifying the class.

Settlement

The proposed settlement was fair, adequate, and reasonable, the appellate court confirmed. It was in the best interests of the settlement classes, and was the product of arm's-length, serious, and informed negotiations between experienced and knowledgeable counsel.

The lower court did not err in approving class counsel's plan of allocation. Rejected was an argument that the previously-noted differences in state law mandated a differential allocation in the percentage of recovery within the indirect purchaser consumer settlement fund.

Dissent

A dissenting opinion contended that the predominance requirement for class certification was not satisfied because the lower court had not ensured that each class member possessed a viable or colorable legal claim.

By allowing indirect purchasers who had no standing to sue under their state's antitrust laws to be part of the settlement class, the appellate majority has created a “come one, come all” environment that “sets the class action ship in [the Ninth] Circuit badly adrift,” the dissent argued.

The decision is Sullivan v. DB Investments, Inc., 2011-2 Trade Cases ¶77,736.

Certification of Cable TV Subscriber Class in Antitrust Action Was Proper

This posting was written by Darius Sturmer, Editor of CCH Trade Regulation Reporter.

Certification of a class of approximately two million non-basic cable television programming services customers in the Philadelphia area—alleging that cable provider Comcast engaged in unlawful monopolization, attempted monopolization, and market or customer allocation through a series of acquisitions and cable system swap arrangements—was a proper exercise of discretion, the U.S. Court of Appeals in Philadelphia has ruled.

The trial court satisfied the "rigorous analysis" standard established in In re Hydrogen Peroxide Antitrust Litigation (2008-2 Trade Cases ¶76,453) in determining that questions of fact or law common to class members predominated over individual issues, for purposes of meeting the certification requirements of Federal Rule of Civil Procedure 23(b)(3). Certification (2010-1 Trade Cases ¶76,869) was therefore affirmed.

The trial court’s finding that the plaintiffs established by a preponderance of evidence that they would be able to prove, through common evidence, not only class-wide antitrust impact in the form of higher costs for programming but also a common methodology to quantify damages on a class-wide basis was not clearly erroneous, the appellate court decided.

In granting certification, the lower court had limited the class’s theories of class-wide impact to the theory that Comcast’s clustering conduct through the swaps and acquisitions had deterred competition from overbuilders in the Philadelphia market.

Relevant Geographic Market, Antitrust Impact

Arguments that the trial court had failed to apply the correct legal standard for determining the relevant geographic market and had made clearly erroneous factual findings by relying on the plaintiffs' expert for proof of class-wide antitrust impact were rejected by the appellate court.

Comcast’s contention that the relevant geographic market was each complaining individual’s household would have set a market so small as to be impractical and inefficient, whereas the class’s market definition capturing the whole of the Philadelphia area was based on record evidence showing that customers throughout the aggregated area faced similar competitive choices.

Moreover, the trial court had carefully considered the plaintiffs’ theories of class-wide impact before concluding that the class met its burden of demonstrating that the anticompetitive effect of clustering on overbuilder competition was capable of proof through evidence common to the class.

The econometric analysis of the plaintiffs’ damages expert demonstrating that the alleged antitrust impact was class-wide and utilizing a “but-for” pricing model to reach a final conservative estimated overcharge value was sufficiently sound, the appellate court also concluded. The damages model provided a methodology that could establish damages on a class-wide basis using common proof.

Attacks by the cable provider on the merits of the model were premature and missed the point, the court said. Some variation of damages among class members did not defeat certification, the court noted.

Finally, the trial court did not lack any legal authority to certify a per se claim based on the class’s allegations, the appellate court held. Comcast’s request to have the appellate court declare on the merits that the plaintiffs could not establish a per se antitrust violation was beyond the scope of the certification decision from which it appealed, the court explained.

Partial Dissent

A separate opinion partially dissenting from the majority’s conclusion argued that damages could not be proven using evidence common to the entire class. According to the partial dissent, the damages expert’s testimony was incapable of identifying any damages caused by reduced overbuilding in the Philadelphia area—the plaintiffs’ only viable theory of antitrust impact—and thus did not fit the case. Therefore, it was irrelevant and should be deemed inadmissible at trial, leaving the class with no evidence of class-wide proof of damages.

Because of this, the partial dissent stated, the certification order should have been vacated to the extent that it provided for a single class as to proof of damages and remanded to the lower court to consider whether the class could be divided into subclasses for the purpose of proving damages.

The decision in Behrend v. Comcast Corp. will be reported at 2011-2 Trade Cases ¶77,575.

Online Ticket Buyers Get Another Try at Class Certification in “Rewards” Cases

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Class certification was improperly denied in cases brought by online ticket purchasers asserting California consumer protection law claims that Ticketmaster participated in a deceptive Internet scheme to lull and induce ticket purchasers into unwittingly signing up for a fee-based “rewards” program, the U.S. Court of Appeals in San Francisco has ruled.

The operator of the Entertainment Rewards program, Entertainment Publications LLC, allegedly charged amounts to the ticket purchasers’ credit cards or directly deducted amounts from their bank accounts, all without specific authorization. Members of the program can download printable coupons for discounts at retail establishments.

Unfair Competition Law

Class certification was improperly denied on the theory that individualized proof of reliance and causation would be required to establish California Unfair Competition Law (UCL) claims, the court held. Relief under the UCL was available without individualized proof of deception, reliance, and injury, according to the court.

Each member of the proposed class would have suffered a concrete and particularized injury by being relieved of money in the alleged transactions, and the alleged loss was traceable to the actions of the defendants, the court determined. The denial of class certification as to the UCL claims was reversed and remanded. A ruling that two individuals who were not deceived into joining the rewards program could not act as class representatives was affirmed.

Consumers Legal Remedies Act

California Consumers Legal Remedies Act (CLRA) claims were improperly dismissed because the statutory 30-day notice provided by ticket purchasers setting forth the nature of the dispute and intent to seek damages did not expressly state that class action relief would be sought. The statute did not state that the threat of class action must be set forth, according to the court.

Dismissal of the CLRA claims was affirmed in two of the actions on appeal in which the proposed class of ticket purchasers was so broadly defined that material misrepresentations to the whole class could not be shown.

The August 22 opinion in Stearns v. Ticketmaster Corp. appears at CCH Advertising Law Guide ¶64,386.

Class Certified in False Labeling Action Against Sunscreen Manufacturer

This posting was written by Jody Coultas, Editor of CCH State Unfair Trade Practices Law.

A trial court erred by refusing to certify a sunscreen purchaser’s California Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA) claims against a sunscreen manufacturer for false labeling, according to a California appellate court.

The purchaser sought to certify a class of all California residents who purchased sunscreen from the manufacturer in the class period based on alleged misrepresentations of the sunscreen’s UVA protection and waterproof properties.

Specifically, the purchasers claimed:

(1) The sunscreen was labeled as “UVA/UVB sunblock” but provided insignificant protection from the sun’s UVA rays;

(2) The sunscreen claimed to be waterproof but was not impenetrable to or unaffected by water; and

(3) The sunscreen was not “ultra sweatproof” as labeled.

The trial court found that the class was ascertainable and the purchaser’s UCL claims were typical of the class, but that individual issues predominated because all class members would need to prove they relied upon, were deceived by, and suffered damages as a result of the manufacturer’s conduct.

With regard to the CLRA claims, the trial court also found that individualized issues concerning reliance, causation, and damages predominated. Specifically, the trial court declined to presume reliance because the alleged misrepresentations were uniform but not material.

The UCL does not require individualized proof of deception, reliance, or injury, and the purchaser need only show that members of the public were likely to be deceived by the false labeling, the appellate court held.

To establish common damages, the purchaser may establish the measure of restitution to which class members are entitled by use of survey evidence and expert testimony. In this case, damages would be based on the difference between what was paid and the value of what was actually received.

Courts should presume reliance where a reasonable man would have relied on the misrepresentations and the misrepresentations were significant in the consumer’s purchase decision, according to the court. The label claims were material to a reasonable person because the protection provided by sunscreen is extremely important to a purchaser. Because the same labeling misrepresentations were made to all class members, the misrepresentations were material and a presumption of reliance should have been applied.

The August 9 decision is Gaston v. Schering-Plough Corp., CCH State Unfair Trade Practices Law ¶32,301.

Class Certified in Infant Formula Advertising Case

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

A class was certified by the federal district court in Ft. Lauderdale in an action alleging that Mead Johnson’s advertising and labeling misrepresented its Enfamil LIPIL infant formula as the only baby formula containing the breast milk nutrients DHA and ARA in violation of the Florida Deceptive and Unfair Trade Practices Act and False and Misleading Advertising Law.

Lower-priced store brand and private label formulas allegedly contained the same nutrients in equal or greater amounts.

The case involved issues common to the proposed class, including whether the representations about the product were true, whether an objective consumer acting reasonably in the circumstances would be deceived, what measure of loss was proper, and whether the class members were entitled to injunctive relief, the court found.

Typicality

Claims asserted by the named plaintiff were typical because she purchased Enfamil LIPIL, she testified she was deceived by Mead Johnson’s representations, and she was exposed to the same messages as class members even if they had viewed different labels.

The named plaintiff had purchased Enfamil LIPIL within the relevant four-year statute of limitations and thus could not be held an inadequate class representative on the theory that her claims were time-barred, the court determined.

Predominance of Common Issues

Common issues predominated, namely whether Enfamil LIPIL contained nutrients that other brands of infant formula did not and whether Mead Johnson’s representations would deceive a reasonable consumer. Because the controversy involved many questions of law and fact, a class action would be superior to other available methods for fair and efficient adjudication, the court concluded.

The decision is Nelson v. Mead Johnson Nutrition Co., November 1, 2010. Text of the decision will appear at CCH Advertising Law Guide ¶64,048.

Further information about CCH Advertising Law Guide appears here.

Online Retailer Faces Class Action for Allegedly Negligent Rebate Ad

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

An online purchaser established that class certification should have been granted on claims that online retailer Buy.com misleadingly advertised a $30 Connect 3D memory card with a $30 rebate, which Connect 3D failed to pay, a California appellate court has ruled.

The purchaser alleged negligent misrepresentation and violations of the California Unfair Competition Law and the California Consumers Legal Remedies Act (CLRA).

The class was defined in the purchaser's memorandum of points and authorities as all persons in the United States who purchased a Connect 3D product from Buy.com, Inc. that included a rebate offer and whose rebate submissions were approved for payment, excluding anyone who was paid a rebate by Buy.com.

The trial court erred by holding that the class was not ascertainable because of an inconsistency with the class definition in a proposed order, the appellate court held.

While relief under the CLRA was limited to proposed class members who bought products for consumer use, the class could be certified even though some members of the class were not consumers, according to the court.

Nationwide Class, California Law

Even though the proposed class was nationwide, common issues of law predominated, the court found. A California choice-of-law provision in Buy.com’s terms of use agreement was applicable. Buy.com was headquartered in California. The allegedly misleading rebate information on Buy.com’s website originated from California. The due diligence Buy.com allegedly failed to perform would have been performed in California.

Buy.com unsuccessfully contended that the purchaser's claims were vague. The purchaser alleged that every member of the class must have seen and relied on Buy.com's negligent misrepresentations that the rebate was available.

The decision is Kershenbaum v. Buy.com, Inc., CCH Advertising Law Guide ¶64,005.

Class Certification Denied in Plastics Additives Price Fixing Case

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The federal district court in Philadelphia has refused to grant class certification to two groups of direct purchasers of certain types of plastics additives used to manufacture or process plastics because the complaining purchasers failed to demonstrate that individual injury was capable of proof by evidence common to the proposed classes.

Because the plaintiffs' price fixing claims would require individual treatment, class certification was unsuitable, the court found.

The plaintiffs sought certification of two subclasses: purchasers of organotin heat stabilizers (tins) and purchasers of epoxidized soybean oil (ESBO). Four other groups of products that were originally at issue were no longer at issue because the plaintiffs settled their claims with respect to these products against the defendants.

The plaintiffs claimed that the remaining class members were impacted by the alleged conspiracy because they paid higher prices for tins and/or ESBO than they would have in the absence of the conspiracy. However, the plaintiffs could not demonstrate impact common to the class.

The court rejected the four methods that they proposed:

(1) the defending manufacturers' pricing behavior, including references to list prices and price increase announcements;

(2) an economics expert's questionable opinion that the characteristics of the tins and ESBO markets were vulnerable to a price fixing conspiracy;

(3) the expert's analysis of the pricing structure in these markets, suggesting that every purchaser would have been impacted by the conspiracy because prices moved similarly over time; and

(4) the expert's market-wide regression analysis, which was not indicative of individual impact.

Hydrogen Peroxide Antitrust Litigation Standard

The decision demonstrates the hurdles facing antitrust plaintiffs attempting to satisfy the requirements for certification under Rule 23 of the Federal Rules of Civil Procedure.

An earlier order certifying a class in the case was vacated by the U.S. Court of Appeals in Philadelphia, and the lower court was instructed to revisit the certification request and apply the standard set forth in the Third Circuit's 2008 In re Hydrogen Peroxide Antitrust Litigation decision (2008-2 Trade Cases ¶76,453).

The lower court said that in its earlier order “in line with what we believed to be common practice at the time, we declined to balance the credibility of the parties’ experts on the issue of the predominance of common evidence demonstrating impact.”

Citing the Hydrogen Peroxide decision, the court explained that, in order to determine whether the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure were met, it would need to "delve beyond the pleadings" and "resolve all factual or legal disputes relevant to class certification, even if they overlap with the merits."

The decision is In re Plastics Additives Antitrust Litigation, 2010-2 Trade Cases ¶77,159.