Edwards et al v. National Milk Producers Federation et al

Filing 240

AMENDED ORDER REQUIRING ADDITIONAL BRIEFING. Signed by Judge JEFFREY S. WHITE on 5/29/14. (jjoS, COURT STAFF) (Filed on 5/29/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MATTHEW EDWARDS, et al.,

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For the Northern District of California

United States District Court

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No. C 11-04766 JSW

Plaintiffs,
v.
NATIONAL MILK PRODUCERS
FEDERATION, aka COOPERATIVES
WORKING TOGETHER, et al.,

AMENDED ORDER REQUIRING
ADDITIONAL BRIEFING

Defendants.
/

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Now before the Court is the motion for class certification filed by Plaintiffs and the

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Daubert motion to exclude Plaintiffs’ expert filed by Defendants. In addition to arguing that

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Plaintiffs’ expert, Dr. John Connor, should be excluded, Defendants argue, inter alia, that

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Plaintiffs fail to demonstrate that their damages are calculated based on the conduct they are

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challenging as required by Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013).

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In Comcast, the Supreme Court held that “[c]alculations need not be exact, ... but at the

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class certification stage (as at trial), any model supporting a plaintiff’s damages case must be

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consistent with its liability case, particularly with respect to the alleged anticompetitive effect of

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the violation.” Comcast, 133 S.Ct. at 1433 (internal quotation marks and citations omitted).

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Moreover, “for purposes of Rule 23, courts must conduct a rigorous analysis to determine

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whether that is so.” Id. (internal quotation marks and citation omitted).

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However, courts since Comcast have clarified that plaintiffs need not prove the merits of
their damages at the class certification stage. Instead, “[t]he Court’s job at this stage is simple:

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determine whether [plaintiffs have shown] that there is a reasonable method for determining, on

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a classwide basis, the antitrust impact’s effects on the class members. ... This is a question of

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methodology, not merit.” In re Cathode Ray Tube (CRT) Antitrust Litig., 2013 WL 5391159,

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*5 (N.D. Cal. Sept. 24 2013); see also In re Diamond Foods, Inc. Sec. Litig., 295 F.R.D. 240,

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252 (N.D. Cal. 2013) (“Whether plaintiff will ultimately prevail in proving damages is not

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necessary to determine at this stage. Instead, the question for class certification is whether

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plaintiff has met its burden of establishing that damages can be proven on a classwide basis.”);

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In re High-Tech. Employee Antitrust Litig., 289 F.R.D. 555, 582 (N.D. Cal. 2013) (find that the

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plaintiffs satisfied their burden by establishing a “plausible method for proving an estimate of
damages” for the proposed class); In re POM Wonderful LLC, 2014 WL 1225184, *2 (C.D. Cal.

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For the Northern District of California

United States District Court

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March 25, 2014) (“At class certification, plaintiff must present a likely method for determining

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class damages ....”) (citation omitted).

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Dr. Connor calculates the effects of the herd retirement program on a national level and

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multiplies his total calculation by the percentage of the population of the states in which

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Plaintiffs are bringing state-law claims. The problem with this method is that Plaintiffs, as

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indirect purchasers, are not bringing a federal anti-trust claim. They are only bringing state-law

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claims, and not in every state. Dr. Connor’s calculations include the effects from states that

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Plaintiffs are not challenging any activity as illegal. Thus, the Court finds that Plaintiffs have

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not yet shown “that their damages stemmed from the defendant’s actions that created the legal

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liability.” Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013) (citing Comcast, 133

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S.Ct. at 1435). It is not clear whether Plaintiffs could modify their method of calculations in

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order to capture only the effects from the states in which they contend Defendants violated

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antitrust laws.

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The Court directs Plaintiffs to file an additional brief to address whether they have a

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reasonable method for determining, on a classwide basis, the alleged antitrust violations’ impact

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on class members. Plaintiffs shall file their additional brief by no later than June 13, 2014.

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Defendants may file a responsive brief by no later than June 25, 2014. Plaintiffs may file a

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reply by no later than July 3, 2014. The Court HEREBY CONTINUES the hearing on the
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pending motions for class certification and to exclude Dr. Connor’s testimony to July 25, 2014

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and the case management conference to August 15, 2014. To the extent Plaintiffs need more

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time because Dr. Connor needs additional time to revise his methodology and calculations, the

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Court is amenable to providing a longer continuation. However, Plaintiffs shall be advised that

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to the extent they submit a revised expert declaration, Defendants will need time to depose Dr.

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Connor and to consult with their own expert to prepare a response. Plaintiffs shall compensate

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Defendants for the reasonable costs incurred in preparing their supplemental opposition. If

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Plaintiffs contemplate that additional time will be needed, they should file a stipulation or

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request for an extension of time, with proposed deadlines, by no later than June 5, 2014.
IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: May 29, 2014
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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