IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
In Re SULFURIC ACID ANTITRUST MDL Docket No. 1536
LITIGATION Case No. 03 C 4576
This Document Relates to:
ALL RELATED ACTIONS HONORABLE DAVID H. COAR
MEMORANDUM OPINION AND ORDER
Plaintiffs have filed a suit on behalf of a putative class of sulfuric acid consumers against several producers of the commodity (collectively ?Defendants?) for violations of Section 1 of the Sherman Act, 15 U.S.C. ?1. See Third Cons. Am. Class Action Compl. at ? 1 (Docket No. 327) (hereinafter ?Third Am. Compl.?). Before this Court is Plaintiffs? motion for class certification under Federal Rule of Civil Procedure 23.
The instant action centers on allegedly anti-competitive behavior that took place in the sulfuric acid market in Canada and the United States from 1988 through 2001.
Sulfuric acid is an inorganic chemical produced and sold throughout the world, and used in a wide variety of industrial processes. Apart from the usual market influences, sulfuric acid production and pricing are impacted by the two different means by which it is created: so-called ?involuntary? or ?non-discretionary? sulfuric acid is simply a by-product of the metal-smelting process which is sold on the open market so as to avoid the strict environmental regulations of disposal or the corrosive effects of long-term storage; and ?voluntary? or ?discretionary? sulfuric acid that makes up the remainder of sulfuric acid production and is largely accomplished by burning sulfur. Whatever the source, the commodity is sold in a variety of grades and different concentrations, with 93% pure sulfuric acid being the most commonly traded form.
In the late 1980s, a number of factors combined to create an oversupply of sulfuric acid in the United States, the commodity?s primary market. A group of sulfuric acid producers allegedly responded to this threat by conspiring to lower voluntary output and coordinate prices in an attempt to manipulate the market. Sulfuric acid consumers filed a variety of suits in United States Federal courts, many of which were consolidated and transferred to this court by the Multidistrict Litigation Panel on July 1, 2003. Plaintiffs first moved for class certification on October 14, 2003 (Docket No. 17), and re-filed their motion on May 5, 2004 (Docket No. 55). The Plaintiffs propose a class made up of:
All persons (excluding federal, state, and local governmental entities and political subdivisions, the Defendants, and their respective parents, subsidiaries and affiliates) who purchased sulfuric acid in the United States directly from one or more of the Defendants or their parents, subsidiaries, affiliates, or joint ventures during the period January 1, 1988 through January 16, 2003.
Cert. Mot. at 1. For the reasons stated below, Plaintiffs? motion is GRANTED.
STANDARD OF REVIEW
Rule 23 of the Federal Rules of Civil Procedure sets forth the relevant standards for maintaining class action suits in federal court. Under Rule 23(a), a proposed class must satisfy four conditions before a court will grant certification: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed. R. Civ. P. 23(a). In addition, the Plaintiff must satisfy Rule 23(b), which offers only three potential bases for establishing that the class action mechanism is a suitable means for proceeding. See Fed.R.Civ.P. 23(b). In the case before the Court, Plaintiff seeks certification under Rule 23(b)(3), which authorizes class actions where the ?questions of law or fact common to the members of the class predominate over any questions affecting individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy.? The burden of proof on a motion for class certification rests with the Plaintiff. See Gen. Tel. Co. v. Falcon, 457 U.S. 147, 162, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).
Plaintiffs contend that all of the demands of Rule 23 are met by the putative class in this matter. Defendants predictably respond that certification should be denied, arguing that individual issues do not predominate and class treatment is not preferable because: regional variations in the market are too varied; the product is not generally fungible due to the use of different concentrations and quality levels; pricing systems are too loose and unstructured to allow for nation-wide analysis; transactions between market buyers and sellers are not standardized, precluding universal damages determinations; and Plaintiffs? proposed expert has failed to adequately explain how these problems can be overcome through statistical analysis. The overarching reasoning behind these arguments is that the sulfuric acid market is not one that can be characterized at the national level, and therefore questions of injury, proof, standards, and damages will all have to be addressed on an individual or regional basis.
Though this case has been brought under section one of the Sherman Act, the validity of a private action based on antitrust violations is actually determined according to section four of the Clayton Act. See Indiana Grocery, Inc. v. Super Valu Stores, Inc., 864 F.2d 1409, 1419 (7th Cir. 1989). Accordingly, the standing of all putative class members to maintain this action will be determined by their ability to establish: (1) that defendants violated the antitrust laws; (2) that the alleged violations caused plaintiffs to suffer some injury to their "business or property"; and (3) that the extent of this injury can be quantified with requisite precision. In re Industrial Gas Antitrust Litig., 100 F.R.D. 280 (D.C. Ill. 1983) (citing Windham v. Am. Brands, Inc., 565 F.2d 59, 65 (4th Cir. 1977) (en banc), cert. denied, 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978)).
Rule 23(a)(1) requires that the class be ?so numerous that joinder of all members is impracticable.? Although there is no ?magic number? of class members for numerosity purposes, case law indicates that when a class numbers at least 40, joinder will be considered impracticable. Swanson v. Am. Consumer Indus., 415 F.2d 1326, 1333 (7th Cir. 1969). The proposed class in this instance would consist of ?[a]ll persons ... who purchased sulfuric acid in the United States directly from one or more of the Defendants.? While Plaintiffs have acknowledged that the precise size of the class has been difficult to determine, it is largely because the records on which this determination is to be based have been in the exclusive control of Defendants. Third Am. Compl. ? 54. In any event, Defendants do not challenge this prong of Rule 23(a) requirements, and there is little doubt that the total number of sulfuric acid purchasers would number more than forty. Therefore numerosity is satisfied.
Under Rule 23(a)(2), there must be a question of law or fact common to the class. Rule 23(b)(3), discussed below, more stringently requires that the common questions of law or fact predominate over questions pertaining to individual class members. Commonality generally exists when the defendant has engaged in ?standardized conduct? towards the members of the proposed class. Smith v. Nike Retail Servs., Inc., 234 F.R.D. 648, 2006 WL 715788, at *4 (N.D. Ill. Mar. 22, 2006). Plaintiff maintains that common questions of law and fact include:
The existence of a contract, combination or conspiracy to fix, raise, maintain or stabilize the price of sulfuric acid sold in the U. S.;
The existence of a contract, combination or conspiracy to restrict or curtail production to reduce output;
Whether sulfuric acid was sold in the U. S. to Plaintiffs and members of the class at prices affected by defendants? antitrust violations;
The identities of the participants in the conspiracy, and its duration and extent;
Whether Defendants? conduct violated Section 1 of the Sherman Act; Whether the contract, combination or conspiracy was concealed;
Whether the conduct of Defendants and their co-conspirators caused injury to the business or property of Plaintiffs and the other members of the class; and
The appropriate measure of damages sustained by Plaintiffs and other members of the class.
Pl.?s Class Cert. Mem. at 8.
Defendants maintain that one of the primary roadblocks to certification is the fact that the market for non-fuming sulfuric acid is so widely varied as to preclude issue commonality. Allegedly, sulfuric acid goes to market in a variety of manners and forms: distributed among distinct geographical divisions in different product strengths and grades, according to localized business transaction practices with inconsistent pricing schemes, and affected by non-discretionary sulfuric acid that is produced independent of demand. See, e.g., Def.?s Joint Opp. Br. at 6-7. However, Defendants demand too much from the Plaintiffs in attempting to undermine the existence of ?standardized conduct? on this basis. They state that the jury would have to ?[u]ndertake an analysis of each alleged agreement with each such voluntary producer in each allegedly affected market to establish the conspiracy element of Plaintiffs? claims.? Were this true ? were it necessary to evaluate the actions of each producer within each market in order to find a conspiracy ? Defendants? argument might be compelling. However, proof of a conspiracy for Sherman Act purposes requires a ?conscious commitment to a common scheme designed to achieve an unlawful objective.? Monsanto Co. v. Spray-Rite Service Corp., 104 S.Ct. 1464, 1469 (1984).
The different actions taken to effectuate that conspiracy in no way need to be identical, they merely need to be driven by the same anti-competitive intent. Wilk v. AMA, 735 F.2d 217, 219-220 (7th Cir. 1983), cert. denied, 104 S.Ct. 2398 (1984). Defendants state:
[T]he evidence as to an output agreement with one of the voluntary producers in one market would not necessarily be relevant to prove an output agreement with another voluntary producer. For example, evidence relevant to whether DuPont agreed with the Noranda Defendants to close DuPont?s Graselli plant ? the only DuPont plant alleged to have been closed during the period of the Complaint ? simply cannot be used to prove or disprove whether the Noranda Defendants ?persuaded? a different competitor to cut back or shut down production in a different market, affecting an entirely diferent set of class members.?
Def.?s Joint Opp. Br. at 4. However, in this case at least one issue of fact or law is determinable without resort to individual circumstances, and is therefore common to all putative class members. Individual variations or customary practices in a localized market have nothing to do with whether or not Defendants entered into those markets with a perceived floor price for supplying sulfuric acid, resulting from a conspiracy and an intent to carry it out. It is true that alleged market variations and the approaches taken to them may become so severe that, as a matter of proof, they undercut thae fact of the conspiracy itself. But the issue of whether or not that conspiracy existed ? i.e., whether or not Defendants? practiced ?standardized conduct? toward all parties ? is one that is common to all Defendants. This Court finds that Plaintiffs have adequately satisfied the commonality requirement.
A plaintiff?s claim is typical of a proposed class if ?it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and [is] based on the same legal theory.? De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cit. 1983). Further, ?factual distinctions between the claims of the named class members and those of other class members? do not necessarily defeat a finding of typicality. Id. at 233. The issue instead turns on whether the plaintiff?s claims ?have the same essential characteristics? as those of the proposed class members. Retired Chicago Police Ass?n v. City of Chicago, 7 F.3d 584, 599 (7th Cir. 1993). As with the commonality prong, all parties potentially have a common cause of action, based on the alleged anti-competitive behavior and the fact that they each purchased sulfuric acid from Defendants at prices that may have been impacted by that behavior. See Rosario v. Livaditis, 963 F.2d 1013 (7th Cir. 1992). Minor factual discrepancies aside, Plaintiffs? claims are based on ?the same essential characteristics? as those of the remainder of the class, and therefore typicality has been established.
d. Adequacy of Representation
Rule 23(a)(4) requires that the named plaintiff ?fairly and adequately protect the interests of the class.? The plaintiff must not have claims antagonistic to or in conflict with those of other class members, and must have sufficient interest in the case?s outcome to be a vigorous advocate. See Chapman v. Worldwide Asset Mgmt., L.L. C., 2005 WL 2171168, at *4 (N.D. Ill. Aug. 30, 2005).
Defendants contend that the fractured nature of the sulfuric acid marketplace will result in conflicting interests, in which each Plaintiff seeks to prove that the sulfuric acid businesses within its region sustained substantially more damage as a result of the conspiracy. According to their allegations, ?[e]ach class member (and class representative) has an incentive to prove that any alleged output reduction disproportionately affected the geographic market in which that class member purchased sulfuric acid and the particular grade and strengths of sulfuric acid purchased by that class member.? Def.?s Joint Opp. Br. at 24. This argument assumes that the question of liability is a zero-sum game ? that there is only a limited amount of it to be meted out to particular Defendants according to the alleged conspiracy?s impact on particular Plaintiffs. However, the question of whether or not Defendants engaged in anti-competitive behavior is a universal determination of culpability requiring only a limited examination of the differences among putative class members. As a matter of damages, such distinctions will become quite important as any one Plaintiff?s awarded damages will of course be higher or lower than others. However, as a question of liability, there is little indication that the relative impact of the alleged conspiracy in any one region or market will amount to antagonism between class members.
Defendants also claim that the existence of additional contractual relationships among putative class members will mean that some would actually benefit from the alleged price increase, placing both the commonality of the claims, and the ability of representatives to take the helm of such an action, in doubt. To the extent that such class members may exist, their existence might undermine the class definition. However, mere speculation regarding the existence of such contracts will not force outright denial of certification at this stage. Though the Defendants cite an Eleventh Circuit case in support of this notion, it is not clear in this instance that the contractual conflicts will ultimately prevent efficient management of the class or result in manifest injustice. See Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181 (11th Cir. 2003) (overturning a district court?s certification where it had failed to consider that ?the most significant members of the certified class arguably experienced a net gain from the conduct alleged to be illegal by the named representatives?).
The second consideration in determining the adequacy of representation is whether plaintiff?s counsel is qualified, experienced, and able to conduct the proposed litigation. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). This Court sees no reason to doubt the adequacy of counsel of those attorneys now before it. Plaintiff?s counsel satisfies the adequacy of representation prong.
e. Rule 23(b)(3)
Under Rule 23(b)(3), a plaintiff must show that common questions of law or fact predominate over individual questions, and ?that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.? Fed. R. Civ. P. 23(b)(3); Amchem Prods. v. Windsor, 521 U.S. 591, 615 (1997). ?The matters pertinent to the finding include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.? Fed. R. Civ. P. 23(b)(3). The predominance inquiry is significantly more demanding than the commonality requirement of Rule 23(a)(2). Amchem Prods., 521 U.S. at 623-24. If individual issues predominate over common questions, then a class action generally is not a superior method for resolving the controversy because managing the disparate issues involved will be inefficient. Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 675 (7th Cir. 2001).
It should also be noted that some courts have applied what is essentially a presumption of certification where the alleged class shares a common claim of price-fixing. See Rohlfing v. Manor Care, Inc., 172 F.R.D. 330, 336 (N.D. Ill.1997) ("The weight of authority in antitrust cases indicates that the existence of a conspiracy in restraint of trade is one that is common to all potential plaintiffs."); In re Potash Antitrust Litig., 159 F.R.D. 682, 693 (D. Minn. 1995) ("A mere allegation of price-fixing will not satisfy Rule 23(b)'s predominance requirement. However, as a general rule in antitrust price-fixing cases, questions common to the members of the class will predominate over questions affecting only individual members."). Despite the multitude of decisions in which allegations of price-fixing seem to have provided a license to certify, the factors of Rule 23(b)(3) must still be weighed according to the particular claims involved in each case.
In the instant matter, Plaintiffs allege ?a single conspiracy with a unitary, illegal object ? raising, fixing, maintaining or stabilizing sulfuric acid prices in the U.S.,? and claim that ?[t]his suffices for purposes of class certification, even if the single conspiracy consists of multiple participants making multiple agreements.? Defendants nonetheless contend that individual questions predominate, in light of variations in the sulfuric acid market and the difficulties of determining impact on a class-wide basis. As has been stated previously, the existence of a conspiracy is a common question that can be addressed at the class-wide level and need not be addressed again as a stumbling block for finding predominance. However, this Court must still consider whether questions of impact and damages revolve around individual determinations that move this case beyond the scope of permissible certification under Rule 23(b)(3).
With respect to the determination of damages, Plaintiffs need only establish that they have ?realistic methodologies for establishing damages on a classwide basis.? In re Brand Name Prescription Drugs Antitrust Litig., 1994 WL 663590, at *5 (N.D. Ill. 1994). The extent to which any awarded damages must be adjusted to each individual is not fatal to certification, first because it has traditionally been seen as an inappropriate barrier to applying the efficiencies of Rule 23, and second because there are adequate judicial processes for addressing the problem. See Carnegie v. Household Intern., Inc., 376 F.3d 656, 661 (7th Cir. 2004) (citing In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141 (2nd Cir. 2001)); see also In re Potash, 159 F.R.D. 682, 697 (D. Min. 1995) (listing 6 methods available to a court in a very similar situation: (1) bifurcating liability and damage trials; (2) appointing special masters or magistrates to preside over individual damage proceedings; (3) decertifying the class after the liability trial, if liability and damages are separated; (4) establishing presumptions or inferences of reliance or causation which are predicates to damage entitlement; (5) using the defendants' transactional records to compute individual damages; and (6) creating subclasses) (citing 1 Herbert H. Newberg, Newberg on Class Actions, ? 4.26 at 4-91-97 (3d ed. 1992)).
It seems likely that the nature of the suit and the market involved in that suit will make future determinations of damages a rather complicated affair. However, such complications are to be expected where the other efficiencies of Rule 23 come into play in a private antitrust action, and for that reason courts have generally refused to let the difficulty of damages determinations stand in the way of class certification. Rohlfing, 172 F.R.D. at 337 ("If it is feasible to prove that the plaintiff class as a whole has been injured by the defendants' conspiracy, then the class may be certified even though individual damage questions remain to be resolved at a later stage of the proceedings."); Arenson v. Whitehall Convalescent and Nursing Home, Inc., 164 F.R.D. 659, 666 (N.D. Ill. 1996) ("It is well established, however, [that] the presence of individualized damages does not render the class unsuitable for certification."). Indeed, as the Seventh Circuit has said, "[i]t is very common for Rule 23(b)(3) class actions to involve differing damage awards for different class members." De La Fuente, 713 F.2d at 233; see also Hardy v. City Optical Inc., 39 F.3d 765, 771 (7th Cir. 1994) (?There have been antitrust class actions in which the relief sought was damages, and the fact that the damages would generally be different for each member of the class was not deemed an insuperable obstacle.?).
Whether or not distinctions among putative class members with respect to the extent of damages makes certification impractical, it is nonetheless possible that determining the existence of damage for all members might defy class-wide proof. Some markets are so heterogeneous as to preclude certification of a putative class as a general rule. See, e.g., Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir. 1977) (denying certification of a case involving the fragmented market for flue-cured tobacco, after the court evaluated a variety of the industry?s characteristics, including: the large number of product grades; conflicting systems of grading between government, producers, and consumers; non-standardized product forms; distinct markets based on geographical regions; widely fluctuating day-to-day prices, frequently manipulated at the local level). Similarly, the Seventh Circuit has found certification unwarranted where the nature of the claim demands a high degree of individualized scrutiny. See, e.g., In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1018-19 (7th Cir. 2002) (avoiding class certification involving allegedly faulty tires where the variables involved were too complicated, invoked different jurisdictional issues, and included 76 different product types); Isaacs v. Sprint Corp., 261 F.3d 679, 682 (7th Cir.2001) (denying certification where individual class member?s chain of title and local real estate concerns would need to be addressed).
Undeniably, there exists some degree of regional variation within the sulfuric acid market. Indeed, Plaintiffs do not attempt to do so. See Asher Resp. at 12 (acknowledging the role of regional factors in affecting the market for sulfuric acid). Additionally, there is a degree of overlap between the market factors being considered in this case and those which made certification inappropriate in Windham: there are variations in the manner in which sulfuric acid transactions are decided; there are different grades of the product that are used for different purposes; and prices are influenced by factors outside the standard market forces of supply and demand. However, Defendants have not provided sufficient evidence to establish that the sulfuric acid industry cannot be scrutinized at the national, class-wide scale. Even if it is true, as Defendants claim, that the price of different grades of sulfuric acid, or of sulfuric acid in different regions, did not move in parallel, this does not preclude establishing class-wide injury resulting from Defendants? actions. The relevant question is whether any given price that was charged for sulfuric acid was higher than it would have been in the absence of the alleged conspiracy, so that Plaintiffs will succeed so long as they can prove all putative class members suffered an injury and that the injury resulted from anti-competitive harms to the market as a whole.
Plaintiff?s expert Dr. Asher has proposed a methodology for evaluating the existence and extent of injury through multiple regression analysis and yardstick techniques. These have been found to be acceptable mechanisms on which to base a class action. See, e.g., In re Linerboard Antitrust Litig., 305 F.3d 145 (3rd Cir. 2002) (approving of proposed regression and yardstick models based on the expert?s ?extensive empirical investigation into the behavior of linerboard and corrugated box prices over time? and ?the structure of the industry, including Appellants' market power, geographical overlap, the fungible nature of the products, the inelastic demand and lack of a substitute?). After examining filed documents, Dr. Asher has concluded that the alleged injury can be treated as a class-wide phenomenon, even if all considerations are taken into account: ?Beyond broad nationwide effects on price stemming from overall changes in Gross Domestic Product, fertilizer market conditions, and import penetration, there can also be regional effects related to these and other factors, such as smelter acid supply. Such factors have been taken into account in explaining and forecasting regional pricing patterns.? Asher Reply Aff. at 6.
Defendants have put forth their expert, Dr. Stiroh, who is prepared to testify after reviewing similar materials that ?relevant geographic markets are regional, that separate markets exist for different strengths of sulfuric acid, and that the opportunity ? or lack of opportunity ? for raising price varies from market segment to market segment and from region to region.? Stiroh Rep. At 14. According to her report, ?[t]he non-conformity of price movements across the four strengths of acid considered means that identifying but-for prices for the purposes of proving impact or damages requires separate analyses into the factors affecting the price of each strength for every year in the damage period.? Id. at 18. Defendants and their expert also criticize the Plaintiffs? expert Dr. Asher, claiming that he has not examined the evidence sufficiently and has not developed a methodology with the requisite degree of specificity.
Essentially the debate between the experts revolves around the fungibility of sulfuric acid, the conformity of the price changes across types and regions, and the ability to account for these issues adequately in a consistent, class-wide analysis. The two experts disagree on all of these points. However, this is not the right time at which to engage in a ?battle of the experts.? In re Potash, 159 F.R.D. 682, 697 (D. Minn. 1995). It is also not the time to launch into an extensive analysis of the facts or weighing of the merits. At this point this Court must simply consider the likelihood that Rule 23 is the most appropriate means of approaching those issues. ?At the class certification stage, the Court, without trenching on the merits, must consider only whether plaintiffs have made a threshold showing that what proof they will offer will be sufficiently generalized in nature that ... the class action will provide a tremendous savings of time and effort.? In re Cardizem CD Antitrust Litig., 200 F.R.D. 297, 319 (E.D. Mich. 2000) (quoting In re Potash, 159 F.R.D. at 697).
Even if Dr. Stiroh?s interpretation of the sulfuric acid market is correct and each consumer transaction is negotiated according to a unique set of conditions, it is nonetheless possible for the Plaintiffs to establish that the starting point for such negotiations was set artificially high by the conspiracy. On the question of injury ? its existence and its degree ? Dr. Asher must make a threshold showing that he will be able to establish both on a class-wide basis. The question is not whether his proposed mechanism will ultimately be successful in convincing a fact-finder. In re Magnetic Audiotape Antitrust Litig., 2001 WL 619305, at *4 (S.D.N.Y. 2001) (?[O]n a motion for class certification, the Court only evaluates whether the method by which plaintiffs propose to prove class-wide impact could prove such impact, not whether plaintiffs in fact can prove class-wide impact.?). Based on Dr. Asher?s testimony, the likelihood that sulfuric acid can be treated as a fungible good, preliminary evidence that Defendants approached the market as one that was national in scope, and the possibility for adjusting the class mechanism in the future, this Court finds that Plaintiffs have made such a showing.
This in no way suggests that the allegedly fractured nature of the sulfuric acid market will not be an ongoing question in these proceedings. Even though this issue has not undermined Plaintiffs? ability to meet the demands of 23(b)(3), doubt as to Defendants? intentions toward the class as a whole, and the impact of their actions on the class as a whole, could potentially undermine the claim that a conspiracy existed at all. As the court in Bromine found, ?rich stories? of certain individual customers will not defeat predominance, but ?key issues in the case concern whether there was a conspiracy and whether plaintiffs suffered an impact as a result of that conspiracy... [t]hat some class members may perceive that the coconspirators did not engage in price-fixing is simply the other side of the same coin.? In re Bromine Antitrust Litig., 203 F.R.D. 403, 413 (S.D. Ind. 2001). To the extent that the behavior of Defendants within each market indeed varied widely, it makes it less likely that Plaintiffs will be able to establish that the alleged conspirators acted in accordance with an agreement; ?rich stories? of disparate treatment across the class will go far to disprove the conspiracy. Nonetheless, it does not mean that putative class members should not be afforded the efficiencies of Rule 23 where the predominant issue remains the conspiracy itself.
As a practical matter, complications that arise while moving forward can be addressed by altering or amending the class, rather than denying certification at the outset. See In re Bally Mfg. Sec. Corp. Litig., 141 F.R.D. 262, 268 (N.D. Ill. 1992) (citing Harman v. LyphoMed, Inc., 122 F.R.D. 522 (N.D. Ill. 1988). Rule 23(c)(1)(C) states that an order ?may be altered or amended before final judgment.? Should it prove necessary, this Court retains this ability should regional variations make the class untenable as defined. However, to deny certification outright would amount to finding the sulfuric acid industry immune from class actions, a conclusion that this Court is reluctant to draw absent more compelling evidence than that which has been provided. See Commercial Tissue, 183 F.R.D. 589, 594 (N.D. Fl. 1998) (?[A]n industry cannot escape class action liability merely by creating an inscrutably complex pricing regime.?). The Seventh Circuit expressed a similar sentiment in finding that class actions should not be defeated ?because the prospective refunder has taken so much from so many that complexities arise.? Appleton Elec. Co. v. Advance-United Expressways, 494 F. 2d 126, 139 (7th Cir. 1974).
As for the second prong of 23(b)(3), this Court finds provisionally that class certification presents the most efficient means of adjudicating the controversy. There is no indication that individual claimants wish to go to court for potential recovery in the absence of class status. Such a scenario, even if likely or warranted, would necessitate re-trying the existence of Defendants? alleged conspiracy over and over again in different forums. Class certification is therefore the most appropriate means of resolving this matter.
For the foregoing reasons, Plaintiffs? motion for class certification is GRANTED.
/s/ David H. Coar
David H. CoarUnited States District Judge
Dated: March 21, 2007