throbber
Case: 19-56514, 08/21/2020, ID: 11797649, DktEntry: 62, Page 1 of 37
`
`No. 19-56514
`
`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`____________________
`
`OLEAN WHOLESALE GROCERY COOPERATIVE, INC, ET AL.,
`Plaintiffs-Appellees,
`v.
`BUMBLE BEE FOODS LLC, ET AL.,
`Defendants-Appellants.
`____________________
`
`On Appeal from the United States District Court
`for the Southern District of California, No. 3:15-md-02670-JLS-MDD
` ____________________
`
`BRIEF FOR THE AMERICAN ANTITRUST INSTITUTE AS AMICUS
`CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES
`____________________
`
`
`
`RANDY M. STUTZ
`ELLEN MERIWETHER
`
` Counsel of Record
`
`
`CAFFERTY CLOBES MERIWETHER
`
` & SPRENGAL
`
`
`
`
`AMERICAN ANTITRUST INSTITUTE
`205 N. Monroe St.
`
`
`
`1025 Connecticut Avenue, NW
`Media, PA 19063
`
`
`
`Suite 1000
`
`(215) 864-2800 (phone)
`
`
`Washington, DC 20036
`emeriwether@caffertyclobes.com
`
`(202) 905-5420
`
`
`
`
`
`
`
`rstutz@antitrustinstitute.org
`
`
`August 21, 2020
`
`Counsel for Amicus Curiae
`
`

`

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`CORPORATE DISCLOSURE STATEMENT
`
`Pursuant to Appellate Rule 26.1(a), the American Antitrust Institute states
`
`that it is a nonprofit, non-stock corporation. It has no parent corporations, and no
`
`publicly traded corporations have an ownership interest in it.
`
`
`
`
`
`
`
`i
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`

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`Case: 19-56514, 08/21/2020, ID: 11797649, DktEntry: 62, Page 3 of 37
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`TABLE OF CONTENTS
`
`CORPORATE DISCLOSURE STATEMENT ........................................................ i
`
`TABLE OF AUTHORITIES ................................................................................. iii
`
`INTEREST OF AMICUS CURIAE ....................................................................... 1
`
`INTRODUCTION AND SUMMARY OF ARGUMENT ...................................... 1
`
`ARGUMENT ......................................................................................................... 6
`
`
`I. THE DISTRICT COURT CORRECTLY APPLIED EXISTING
`RULE 23 STANDARDS IN CERTIFYING THE CLASS ...................... 6
`
`
`
`
`
`
`
`
`
`
`
`A. Rule 23 Does Not Require Plaintiffs to Prove Injury to
` Each Class Member as a Prerequisite to Certification ................. 7
`
`B. Defendants’ Outcome-Driven Standard for Merits
` Determinations at Class Certification Is Incorrect ...................... 8
`
`C. Tyson Foods’ Holding that Reliable Statistical Evidence Is
`
`Admissible in Class Proceedings Governs this Case ................. 13
`
`
`
`
`1. Tyson Foods Permits the Use of Reliable Statistical
` Evidence to Prove an Element of an Antitrust Claim ........ 15
`
`
`
`
`2. Tyson Foods Confirms that Defendants May Not Profit
` from Uncertainty Caused by Their Illegal Conduct ........... 19
`
`
`II. PROPERLY SPECIFIED REGRESSION ANALYSES MAY
`RELIABLY DEMONSTRATE CLASSWIDE IMPACT ...................... 23
`
`
`CONCLUSION .................................................................................................... 28
`
`CERTIFICATE OF SERVICE
`
`CERTIFICATE OF COMPLIANCE
`
`
`
`
`
`ii
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`

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`
`TABLE OF AUTHORITIES
`
`
`CASES
`
`Amchem Prods., Inc. v. Windsor,
`521 U.S. 591 (1997) ............................................................................................ 2
`
`Amgen Inc. v. Conn. Ret. Plans & Tr. Funds,
`568 U.S. 455 (2013) .................................................................................. 8, 9, 10
`
`Anderson v. Mt. Clemens Pottery Co.,
`328 U.S. 680 (1946) .......................................................................................... 13
`
`Bigelow v. RKO Radio Pictures, Inc.,
`327 U.S. 251 (1946) ...............................................................................19, 20, 21
`
`Briseno v. ConAgra Foods, Inc.,
`844 F.3d 1121 (9th Cir. 2017) ....................................................................... 7, 12
`
`Bus. Elecs. Corp. v. Sharp Elecs. Corp.,
`485 U.S. 717 (1988) .......................................................................................... 22
`
`California v. Am. Stores Co.,
`495 U.S. 271 (1990) ............................................................................................ 2
`
`Eastman Kodak Co. of N.Y. v. S. Photo Materials Co.,
`273 U.S. 359 (1927) .................................................................................... 19, 20
`
`Erica P. John Fund, Inc. v. Halliburton Co.,
`563 U.S. 804 (2011) .......................................................................................... 14
`
`Hawaii v. Standard Oil Co. of Cal.,
`405 U.S. 251 (1972) ............................................................................................ 2
`
`Hilao v. Estate of Marcos,
`103 F.3d 767 (9th Cir. 1996) ............................................................................. 12
`
`Ibe v. Jones,
`836 F.3d 516 (5th Cir. 2016) ............................................................................. 11
`
`Ill. Brick Co. v. Illinois,
`431 U.S. 720 (1977) ............................................................................................ 3
`
`
`
`iii
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`

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`In re Air Cargo Shipping Servs. Antitrust Litig.,
`No. 06-MD-1175 JG VVP, 2014 WL 7882100 (E.D.N.Y. Oct. 15, 2014) ......... 27
`
`In re Capacitors Antitrust Litig. (No. III),
`No. 14-CV-03264-JD, 2018 WL 5980139 (N.D. Cal. Nov. 14, 2018) ......... 25, 27
`
`In re High-Tech Emp. Antitrust Litig.,
`985 F. Supp. 2d 1167 (N.D. Cal. 2013) ............................................................. 25
`
`In re Hydrogen Peroxide Antitrust Litig.,
`552 F.3d 305 (3d Cir. 2008) .................................................................... 6, 10, 11
`
`In re Hyundai & Kia Fuel Econ. Litig.,
`926 F.3d 539 (9th Cir. 2019) ............................................................................. 17
`
`In re Linerboard Antitrust Litig.,
` 305 F.3d 145 (3d Cir. 2002) .............................................................................. 25
`
`In re Polyurethane Foam Antitrust Litig.,
` 314 F.R.D. 226 (N.D. Ohio 2014) ..................................................................... 27
`
`In re Scrap Metal Antitrust Litig.,
`527 F.3d 517 (6th Cir. 2008) ............................................................................. 23
`
`In re Static Random Access Memory (SRAM) Antitrust Litig.,
` 264 F.R.D. 603 (N.D. Cal. 2009) ...................................................................... 25
`
`In re Suboxone Antitrust Litig.,
` No. 19-3640, 2020 WL 4331523 (3d Cir. July 28, 2020) .................................. 13
`
`In re TFT-LCD (Flat Panel) Antitrust Litig.,
` 267 F.R.D. 291 (N.D. Cal. 2010) ...................................................................... 25
`
`In re Urethane Antitrust Litig.,
` 768 F.3d 1245 (10th Cir. 2014) ......................................................................... 22
`
`J. Truett Payne Co. v. Chrysler Motors Corp.,
`451 U.S. 557, 566–67 (1981) ............................................................................ 21
`
`Messner v. Northshore Univ. Health Sys.,
` 669 F.3d 802 (7th Cir. 2012) ............................................................................. 25
`
`
`
`
`
`iv
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`Palmer v. Conn. Ry & Lighting Co.,
` 311 U.S. 544 (1941) .......................................................................................... 19
`
`Priests for Life v. U.S. Dep’t of Health & Human Servs.,
` 808 F.3d 1 (D.C. Cir. 2015) .............................................................................. 17
`
`Sali v. Corona Reg’l Med. Ctr.,
`909 F.3d 996 (9th Cir. 2018) ......................................................................... 6, 18
`
`Senne v. Kan. City Royals Baseball Corp.,
`934 F.3d 918 (9th Cir. 2019) ............................................................................. 13
`
`Story Parchment Co. v. Paterson Parchment Co.,
` 282 U.S. 555 (1931) .................................................................................... 19, 20
`
`Summers v. Earth Island Inst.,
` 555 U.S. 488 (2009) .......................................................................................... 12
`
`Torres v. Mercer Canyons Inc.,
` 835 F.3d 1125 (9th Cir. 2016) ............................................................ 8, 11, 13, 22
`
`Tyson Foods, Inc. v. Bouaphakeo,
` 136 S. Ct. 1036 (2016) ............................................................................... passim
`
`United States v. Cazares,
` 121 F.3d 1241 (9th Cir. 1997) ........................................................................... 18
`
`United States v. Elliott,
` 322 F.3d 710 (9th Cir. 2003) ............................................................................. 18
`
`United States v. Socony-Vacuum Oil Co.,
` 310 U.S. 150 (1940) .......................................................................................... 20
`
`Wal-Mart Stores, Inc. v. Dukes,
` 564 U.S. 338 (2011) ...................................................................................... 8, 10
`
`Zenith Radio Corp. v. Hazeltine Research, Inc.,
` 395 U.S. 100 (1969) .......................................................................................... 15
`
`RULES
`
`Fed. R. Civ. P. 23(b)(3) .......................................................................................... 7
`
`
`
`
`
`v
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`

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`TREATISES
`
`2 W. Rubenstein, Newberg on Class Actions
`§ 4:50 (5th ed. 2012) ........................................................................................... 7
`
`OTHER AUTHORITIES
`
`2003 Advisory Committee Note to Rule 23 .......................................................... 11
`
`ABA Section of Antitrust Law, Proving Antitrust Damages (2d ed. 2010) ........... 25
`
`Black’s Law Dictionary (11th ed. 2019) ............................................................... 25
`
`Brief of Petitioner Tyson Foods 33-40, 136 S. Ct. 1036, No. 14-1146
`(filed Aug. 7, 2015), available at https://www.scotusblog.com/wp-content/up-
`loads/2015/08/14-1146ts1.pdf ........................................................................... 23
`
`Brief of Economists and Other Social Scientists, 136 S. Ct. 1036,
`No. 14-1146 (filed Sept. 29, 2015), available at https://www.scotusblog.com/
`wp-content/uploads/2015/10/14-1146-bsac-Economists.pdf ............................. 24
`
`Brief of Amicus Curiae Complex Litigation Law Professors
`(filed Sept. 29, 2015), available at https://www.scotusblog.com/wp-content/up-
`loads/2015/10/14-1146-bsac-Complex-Litigation-Law-Professors.pdf ............. 24
`
`John M. Connor & Robert H. Lande, Cartels as Rational
`Business Strategy: Crime Pays, 34 Cardozo L. Rev 427 (2012) .......................... 4
`
`Joshua P. Davis & Eric L. Cramer, Antitrust, Class Certification, and the
`Politics of Procedure, 18 Geo. Mason L. Rev. 969 (2010) ................................ 12
`
`Paul A. Johnson, The Economics of Common Impact in Antitrust Class
`Certification, 77 Antitrust L.J. 533 (2011) ........................................................ 26
`
` Sherman Act Violations Resulting in Criminal Fines & Penalties of $10 Million or
`More, Dept. Of Justice, https://www.justice.gov/atr/sherman-act-violations-
`yielding-corporate-fine-10-million-or-more (last updated July 24, 2020) ............ 3
`
`
`
`vi
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`Case: 19-56514, 08/21/2020, ID: 11797649, DktEntry: 62, Page 8 of 37
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`INTEREST OF AMICUS CURIAE1
`
`The American Antitrust Institute (“AAI”) is an independent nonprofit organ-
`
`ization devoted to promoting competition that protects consumers, businesses, and
`
`society. It serves the public through research, education, and advocacy on the ben-
`
`efits of competition and the use of antitrust enforcement as a vital component of
`
`national and international competition policy. AAI enjoys the input of an Advisory
`
`Board that consists of over 130 prominent antitrust lawyers, law professors, econo-
`
`mists, and business leaders. See http://www.antitrustinstitute.org.2
`
`INTRODUCTION AND SUMMARY OF ARGUMENT
`
`Defendants that plead guilty to criminal price fixing and are precluded from
`
`contesting liability in related civil cases often channel their considerable resources
`
`(including cartel profits) into thwarting victim recovery. They do so by pushing
`
`aggressively for limits to class treatment. Because antitrust violations typically
`
`
`1 All parties consent to the filing of this amicus brief. The entity formerly known
`as Bumble Bee Foods LLC has undergone reorganization in bankruptcy proceed-
`ings, and that entity is now known as Old BBF, LLC, which is not a party to this
`proceeding. No counsel for a party has authored this brief in whole or in part, and
`no party, party’s counsel, or any other person—other than amicus curiae or its
`counsel—has contributed money that was intended to fund preparing or submitting
`this brief.
`2 Individual views of members of AAI’s Board of Directors or Advisory Board
`may differ from AAI’s positions. Certain members of AAI’s Board of Directors or
`Advisory Board, or their law firms, represent Plaintiffs-Appellants, but they played
`no role in AAI’s deliberations with respect to the filing of the brief.
`
`
`
`1
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`

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`transfer massive wealth from consumers to cartels by way of high-volume, low-
`
`dollar price-fixing schemes, victims’ claims typically allow for only “small recov-
`
`eries that do not provide the incentive for any individual to bring a solo action.”
`
`Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (internal quotation
`
`omitted). The Supreme Court has recognized that the class action device “may en-
`
`hance the efficacy of private actions by permitting citizens to combine their limited
`
`resources to achieve a more powerful litigation posture,” Hawaii v. Standard Oil
`
`Co. of Cal., 405 U.S. 251, 266 (1972), and defendants appreciate that without class
`
`status, many individual victims are unlikely to pursue their claims.
`
`By pressing for limitations on class treatment in private antitrust cases,
`
`guilty defendants can leverage victims’ dependence on a claims-aggregation device
`
`to upend “an integral part of the congressional plan for protecting competition.”
`
`California v. Am. Stores Co., 495 U.S. 271, 284 (1990). Congress had “many
`
`means at its disposal to penalize violators” and “could have, for example, required
`
`violators to compensate federal, state, and local governments for the estimated
`
`damage to their respective economies caused by the violations.” Standard Oil, 405
`
`U.S. at 262. But Congress created a private treble damages remedy because it be-
`
`lieved “the purposes of the antitrust laws are best served by insuring that the pri-
`
`vate action will be an ever-present threat to deter anyone contemplating business
`
`
`
`2
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`

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`behavior in violation of the antitrust laws.” Ill. Brick Co. v. Illinois, 431 U.S. 720,
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`755 (1977) (internal quotation omitted).
`
`When guilty defendants aggressively litigate, and re-litigate complex ques-
`
`tions involving class treatment, they subvert the Congressional scheme. They do
`
`so by layering enormous costs and uncertainty onto each successive private anti-
`
`trust class claim, regardless of the merits, and regardless of admitted liability. As
`
`class counsel are forced to internalize spiraling risks and costs in pursuing class re-
`
`coveries even when guilt is confirmed, the ambit of behavior meaningfully punish-
`
`able under the Clayton Act begins to shrink. And over time, the inefficacy of the
`
`Act as a check on competitive abuses begins to erode the antitrust laws’ promise of
`
`competitive markets.
`
`The corrosive effect of diminishing private enforcement incentives has
`
`helped turn the U.S. economy into a breeding ground for price-fixing agreements
`
`as brazen as the conspiracy uncovered in this case. The evidence shows that car-
`
`tels continue to cause massive harm to the U.S. economy, see, e.g., Sherman Act
`
`Violations Resulting in Criminal Fines & Penalties of $10 Million or More, U.S.
`
`Dept. of Just. (last updated July 24, 2020) 3 (showing over $13.5 billion in fines
`
`alone since 1995), yet they remain woefully under-deterred. Studies show modern
`
`cartel behavior is often net profitable to businesses even if they are caught. See
`
`
`3 Internet URLs for online sources are identified in the Table of Authorities.
`
`
`
`3
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`

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`John M. Connor & Robert H. Lande, Cartels as Rational Business Strategy: Crime
`
`Pays, 34 Cardozo L. Rev. 427, 478 (2012) (showing median overcharge imposed
`
`by U.S. cartels amounts to 19% of the conspirators’ sales, yet the median com-
`
`bined sanctions amount to 17% of sales with an expected value of only 4% of sales
`
`when adjusted for the low likelihood of detection).
`
`This case presents another tipping point in the battleground over administra-
`
`ble private antitrust enforcement. The Defendants, Bumble Bee, Chicken of the
`
`Sea (COSI), and Starkist (“Defendants”), which dominate the packaged tuna mar-
`
`ket, sought leniency or pled guilty to criminal price fixing, and several of their ex-
`
`ecutives have been sentenced to prison. They now challenge the ability of their
`
`victims—private classes of direct purchasers (“DPPs”), commercial food service
`
`purchasers (“CFPs”), and end purchasers (“EPPs”) (“Plaintiffs”)—to use reliable
`
`statistical evidence to make a classwide showing of antitrust impact for purposes of
`
`satisfying the predominance requirement of Rule 23.
`
`Four years ago, in Tyson Foods, the Supreme Court definitively set forth
`
`standards for plaintiffs seeking to establish that common questions predominate
`
`over individual questions under Rule 23(b)(3), and the standard under which statis-
`
`tical evidence may be used as common evidence to establish classwide injury. De-
`
`fendants, supported by the Chamber of Commerce and the Washington Legal
`
`
`
`4
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`

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`Foundation, now seek to re-litigate the very same issues in this Court. Defendants’
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`arguments must be rejected.
`
`1. Defendants mistake the Rule 23 predominance inquiry for a merits in-
`
`quiry into proof of antitrust impact. Rule 23 requires that common statistical evi-
`
`dence must be sufficiently reliable to be capable of supporting a prima facie
`
`showing of impact, not that each individual plaintiff would prevail on impact on
`
`the basis of Plaintiffs’ statistical evidence.
`
`Defendants’ argument that district courts must resolve the merits of impact
`
`“questions” at defendants’ prerogative is based on faulty reasoning that cannot be
`
`reconciled with the plain meaning canon, which governs interpretation of the Fed-
`
`eral Rules in this Circuit. The Supreme Court’s holding in Tyson Foods, which al-
`
`lows reliable statistical evidence to prove injury, controls this case. The opinion
`
`cannot be read as narrowly limited to Fair Labor Standards Act claims or to require
`
`that proof would sustain a jury verdict after a trial in an individual case, as Defend-
`
`ants suggest. Both readings are foreclosed by the opinion, including by the Court’s
`
`reliance on Mt. Clemens, which derives its evidentiary rule entirely from antitrust
`
`law.
`
`2.
`
`Properly specified regression analyses are well-accepted and reliable
`
`statistical tools widely used in litigation settings. Defendants’ arguments that re-
`
`gression analyses are categorically inappropriate because they use “averages” that
`
`
`
`5
`
`

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`Case: 19-56514, 08/21/2020, ID: 11797649, DktEntry: 62, Page 13 of 37
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`“assume away” individual differences among class members are incorrect and
`
`foreclosed by Tyson Foods. Regression models, which invariably rely on averag-
`
`ing techniques as a first step or component part of a more robust analysis, like
`
`Plaintiffs’ models here, are a permissible method of proof. And regression models
`
`that begin by calculating aggregate damages and average overcharges and then
`
`subsequently use controls to account for supply and demand factors and differ-
`
`ences across the class are routinely accepted as capable of helping resolve the ele-
`
`ment of antitrust impact at trial.
`
`ARGUMENT
`
`I.
`
`THE DISTRICT COURT CORRECTLY APPLIED EXISTING RULE
`23 STANDARDS IN CERTIFYING THE CLASS
`
`Rule 23 does not require plaintiffs to prove impact on each class member as
`
`a prerequisite to class certification. Defendants conflate the Rule 23 inquiry—
`
`whether antitrust impact is capable of proof at trial using common evidence—with
`
`the merits inquiry of whether class members have in fact been injured by Defend-
`
`ants’ illegal conduct. See, e.g., Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996,
`
`1004–05 (9th Cir. 2018); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305,
`
`311–12 (3d Cir. 2008) (“Plaintiffs’ burden at the class certification stage is not to
`
`
`
`6
`
`

`

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`prove the element of antitrust impact” but instead “is to demonstrate that the ele-
`
`ment of antitrust impact is capable of proof at trial through evidence that is com-
`
`mon to the class rather than individual to its members.”).
`
`In other words, Defendants contend that Rule 23(b)(3) requires courts to de-
`
`termine that common answers, instead of common questions, will predominate in
`
`class litigation. Defendants are incorrect. And here, where plaintiffs would rely
`
`on statistical evidence that is sufficiently reliable to support a prima facie showing
`
`of impact on a classwide basis, common questions predominate. Tyson Foods, Inc.
`
`v. Bouaphakeo, 136 S. Ct. 1036, 1045–46, 1048 (2016).
`
`A. Rule 23 Does Not Require Plaintiffs to Prove Injury to Each Class
`Member as a Prerequisite to Certification
`
`
`The plain meaning of the language of Rule 23(b)(3) clarifies that the pre-
`
`dominance inquiry requires common “questions” to predominate during litigation;
`
`it does not require proof of common answers to those questions. Fed. R. Civ. P.
`
`23(b)(3); see Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1125 (9th Cir. 2017)
`
`(The Court’s first step in construing Rule 23 is “determin[ing] whether the lan-
`
`guage at issue has a plain meaning.”).
`
`The Supreme Court has explained that “a common question is one where
`
`‘the same evidence will suffice for each member to make a prima facie showing
`
`[or] the issue is susceptible to generalized, class-wide proof.’” Tyson Foods, 136
`
`S. Ct. at 1045 (quoting 2 W. Rubenstein, Newberg on Class Actions § 4:50, pp.
`
`
`
`7
`
`

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`196–97 (5th ed. 2012)); see also Torres v. Mercer Canyons Inc., 835 F.3d 1125,
`
`1134 (9th Cir. 2016) (quoting same). Accordingly, “under the plain language of
`
`Rule 23(b)(3), plaintiffs are not required to prove … that the predominating ques-
`
`tion will be answered in their favor.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds,
`
`568 U.S. 455, 468 (2013); see Black’s Law Dictionary (11th ed. 2019) (Prima facie
`
`evidence is evidence [s]ufficient to establish a fact or raise a presumption unless
`
`disproved or rebutted.”) (emphasis added); Torres, 835 F.3d at 1123 (questions are
`
`common if they have the “capacity” to generate common answers that would “help
`
`drive the resolution of the litigation” (quoting Wal–Mart Stores, Inc. v. Dukes, 564
`
`U.S. 338, 350 (2011)).
`
`Applying circular reasoning, Defendants maintain that “questions” only have
`
`the “capacity” to “help drive” the resolution of litigation if the questions’ answers
`
`have been proven and thereby resolved. Thus, Defendants would have Rule 23 al-
`
`low representative evidence to establish that impact is a common question only if
`
`the evidence “actually prove[s] class-wide impact—and the extent to which class
`
`members were actually injured.” Defs.’ Opening’s Br. 51. Under the plain mean-
`
`ing of Rule 23 and binding precedent, that is not the law.
`
`B. Defendants’ Outcome-Driven Standard for Merits Determina-
`tions at Class Certification Is Incorrect
`
`Defendants’ “common answers” standard requires district courts to provide
`
`on-demand merits resolutions. Defendants would have district courts weigh the
`
`
`
`8
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`

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`Case: 19-56514, 08/21/2020, ID: 11797649, DktEntry: 62, Page 16 of 37
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`probative value of expert opinions and make fact findings and merits determina-
`
`tions whenever a Defendant asks the court to take a question from the jury. Defs.’
`
`Opening Br. 28 (district court “must” resolve the merits of an issue at class certifi-
`
`cation if the parties “dispute” the issue and “present competing evidence”); id. at
`
`51 (“[T]he parties disputed the extent to which [Plaintiffs’] evidence actually
`
`proved class-wide impact —and the extent to which class members were actually
`
`injured.”); id. (“Resolving this dispute in Defendants’ favor therefore would pre-
`
`clude certification.”).
`
`Defendants’ argument is a tautology. They reason that, if the Court were to
`
`resolve evidentiary and merits disputes over impact in Defendants’ favor, then
`
`Plaintiffs would not be able to rely on their proffered evidence to make the re-
`
`quired showing. That circular logic adds nothing to the predominance inquiry; it
`
`merely restates the truism that if Plaintiffs lose on the merits, they will not be able
`
`to prove their case.
`
`If anything, Defendants’ argument defeats itself by demonstrating common-
`
`ality. Here, a failure of Plaintiffs’ proof on the element of impact would create a
`
`“fatal similarity,” not a “fatal dissimilarity,” Tyson Foods, 136 S. Ct. at 1047, ren-
`
`dering impact a paradigmatic common “question” according to that term’s plain
`
`meaning. Amgen, 568 U.S. at 467. Because Plaintiffs’ claims will either rise or
`
`fall together when the impact question is answered at trial, the question is “capable
`
`
`
`9
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`

`

`Case: 19-56514, 08/21/2020, ID: 11797649, DktEntry: 62, Page 17 of 37
`
`of class-wide resolution” insofar as “determination of its truth or falsity will re-
`
`solve an issue … in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
`
`350 (2011) (emphasis added).
`
`Under the plain meaning of Rule 23(b)(3), neither defendants nor courts are
`
`permitted to look past a question’s capability for classwide resolution to inquire
`
`how the question is actually resolved. That is the quintessential “free ranging mer-
`
`its inquiry” foreclosed by the Supreme Court and the plain language of Rule 23.
`
`Amgen, 568 U.S. at 466.
`
`A predominance standard that allows defendants to unilaterally eliminate the
`
`distinction between a showing that impact is susceptible of common proof and a
`
`showing that plaintiffs will prevail on impact also defies common sense. If de-
`
`fendants, rather than courts, controlled the litigation in this way, rational defend-
`
`ants would invariably exercise their option to force merits determinations at class
`
`certification in every case (and on every issue). The effect would be to mandate
`
`that overburdened federal courts must always resolve the battle of the experts over
`
`both impact and damages (among other issues) prior to trial. And plaintiffs would
`
`have to prove their case twice—on the merits at class certification and then, if they
`
`win, on the merits again at trial. See Hydrogen Peroxide., 552 F.3d at 317. Rule
`
`23 is neither so lopsided nor so inefficient.
`
`
`
`10
`
`

`

`Case: 19-56514, 08/21/2020, ID: 11797649, DktEntry: 62, Page 18 of 37
`
`Defendants claim that the district court’s failure to answer the predominance
`
`question “raises the troubling prospect” of “uninjured class members being
`
`awarded monetary relief” to which they have no entitlement. Def’s Br. at 59.
`
`However, Defendants ignore that the predominance inquiry focuses on whether
`
`common questions will predominate in the adjudication of class claims at trial.
`
`See, e.g., Ibe v. Jones, 836 F.3d 516, 533 (5th Cir. 2016) (“predominance and supe-
`
`riority inquiries … require envisioning what a class trial would look like”); Hydro-
`
`gen Peroxide, 552 F.3d at 312 (“Deciding this issue [of impact]” requires
`
`assessment of “the method or methods by which plaintiffs propose to use the evi-
`
`dence to prove impact at trial”); see also 2003 Advisory Committee Note to Rule
`
`23 (“A critical need is to determine how the case will be tried.”).
`
`The prospect of uninjured class members is not a trial issue in cases where
`
`plaintiffs attempt to prove aggregate damages. And antitrust plaintiffs, like Plain-
`
`tiffs here, almost always attempt to do so, because estimates of aggregate damages
`
`(calculated by way of regression analysis, see infra Part II) are typically more ac-
`
`curate and efficient than estimates of individual damages in resolving the inherent
`
`uncertainty caused by an antitrust violation. See infra Part I.C.2. In such cases, in-
`
`cluding this case, defendants do not have a cognizable interest in litigating the
`
`identity of class members at trial. The issue has no bearing on Defendants’ interest
`
`in the amount of damages for which they will be liable. See Torres, 835 F.3d at
`
`
`
`11
`
`

`

`Case: 19-56514, 08/21/2020, ID: 11797649, DktEntry: 62, Page 19 of 37
`
`1140–41 (individual calculations from “partitioning of damages” among class
`
`members “would not impact a defendant’s liability for the total amount of dam-
`
`ages”); Joshua P. Davis & Eric L. Cramer, Antitrust, Class Certification, and the
`
`Politics of Procedure, 18 Geo. Mason L. Rev. 969, 999 (2010) (“[T]he total dam-
`
`ages are unaffected by the possible presence of individual class members that the
`
`model finds did not pay overcharges.”).4 Consequently, antitrust verdict forms typ-
`
`ically require a finding that conduct harmed “the class” or “class members,” not
`
`each individual class member. See id. at 992, n.127 (2010) (citing several verdict
`
`forms in antitrust trials).
`
`In the Ninth Circuit, which does not read an extra-textual “ascertainability”
`
`requirement into Rule 23, Briseno, 844 F.3d at 1127, any individual questions con-
`
`cerning uninjured class members necessarily arise, if at all, after trial, during the
`
`litigation’s post-judgment phase. Tyson Foods, 136 S. Ct. at 1050 (identification
`
`of uninjured class members was “premature” after class certification and jury ver-
`
`dict but could be considered on remand prior to damages distribution phase);
`
`
`4 The same point belies Defendants’ Due Process arguments. Opening Br. 36. Un-
`injured class members that do not affect Defendants’ aggregate damages fail to im-
`plicate a concrete interest. Hilao v. Estate of Marcos, 103 F.3d 767, 786 (9th Cir.
`1996) (class-action defendant’s interest was “only in the total amount of damages
`for which it will be liable,” not “the identities of those receiving damage awards”);
`cf. Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (“[D]eprivation of a
`procedural right without some concrete interest that is affected by the depriva-
`tion—a procedural right in vacuo—is insufficient to create Article III standing.”).
`
`
`
`12
`
`

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`Case: 19-56514, 08/21/2020, ID: 11797649, DktEntry: 62, Page 20 of 37
`
`Torres, 835 F.3d at 1137 (district court can “winnow out those non-injured mem-
`
`bers at the damages phase of the litigation, or … refine the class definition”); see
`
`also In re Suboxone Antitrust Litig., No. 19-3640, 2020 WL 4331523, at *5 (3d
`
`Cir. July 28, 2020) (“Although allocating the damages among class members may
`
`be necessary after judgment, ‘such individual questions do not ordinarily preclude
`
`the use of the class action device.’”) (quoting Tyson Foods, 136 S. Ct. at 1045).
`
`The prospect of uninjured class members thus does not undermine th

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