Fond du Lac Bumper Exchange Inc v. Jui Li Enterprise Company Ltd et al

Filing 910

DECISION AND ORDER signed by Judge Lynn Adelman on 6/24/16 that direct purchaser plaintiffs motion to certify class 710 is GRANTED. Further ordering that the parties motions to seal/motions to restrict 709 , 788 , 811 , 839 , 849 , 858 , [88 2], 888 are DENIED. The Clerk of Court shall make the relevant documents publicly available. Further ordering that direct purchaser plaintiffs motion to seal 801 is DENIED. The Clerk of Court shall make the relevant documents publicly available. Further ordering that Jui Lis motion to compel 780 is DENIED without prejudice. (cc: all counsel) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________
FOND DU LAC BUMPER EXCHANGE, INC., on
Behalf of itself and others similarly situated,
Plaintiff,
v.

Case No. 09-cv-0852

JUI LI ENTERPRISE COMPANY, LTD., et al.,
Defendants.
______________________________________________________________________
DZIDRA FULLER, et al.,
Plaintiffs,
v.

Case No. 13-cv-0946

JUI LI ENTERPRISE COMPANY, LTD., et al.,
Defendants.
______________________________________________________________________
FIREMAN’S FUND INSURANCE, CO., on
Behalf of itself and others similarly situated,
Plaintiff,
v.

Case No. 13-cv-0987

JUI LI ENTERPRISE COMPANY, LTD., et al.,
Defendants.
______________________________________________________________________
NATIONAL TRUCKING FINANCIAL RECLAMATION
SERVICES LLC, on behalf of itself and others
similarly situated,
Plaintiff,
v.

Case No. 13-cv-1061

JUI LI ENTERPRISE COMPANY, LTD., et al.,
Defendants.
______________________________________________________________________

DECISION AND ORDER
This is an antitrust case under The Sherman Act, 15 U.S.C. § 1. Before me now
is a motion for class certification, numerous motions to seal, and several miscellaneous
motions.
I. Background
Defendants are manufacturers of aftermarket automotive sheet metal parts. Cars
require replacement parts as they age. Replacement parts can be either original
equipment manufacturer parts (“OEM” parts), which are often distributed through the
auto manufacturers’ own service channels (like dealerships) and sold under their brand
names, or aftermarket parts, which have the same specifications as OEM parts but are
usually not manufactured by OEMs or sold with the auto manufacturers’ certification.
The aftermarket sheet metal parts at issue in this litigation include hoods, doors,
fenders, bonnets, floor panels, trunk assemblies, tailgates, roof panels, and
reinforcement parts. Plaintiffs allege that defendants conspired to fix, raise, maintain,
and stabilize the prices of aftermarket sheet metal parts in violation of The Sherman
Act.
Plaintiffs propose two classes: direct purchaser plaintiffs (“DPPs”) and indirect
purchaser plaintiffs (“IPPs”). The DPPs filed the class certification motion at issue. They
wish to certify the following class:
All persons and entities in the United States, and its territories and possessions,
that purchased AM Sheet Metal Parts directly from a Defendant between at least
as early as January 1, 2003, and September 4, 2009 (“the Class Period.”).
Excluded from the Class are any judicial officer who is assigned to hear any
aspect of this action, governmental entities, Defendants, co-conspirators, and the
present and former parents, predecessors, subsidiaries and affiliates of the
foregoing.

2

Mem. in Supp. of DPPs’ Mot. for Class Certification at 6 (ECF No. 711). 1 The named
DPPs are Fond du Lac Bumper Exchange Inc. (“Fond du Lac Bumper”) and Roberts
Wholesale Body Parts Inc. (“Roberts”), two wholesale auto part distributors who directly
purchased from at least one named defendant during the class period. Originally,
defendants included Jui Li Enterprise Company Ltd., Tong Yang Industry Co. Ltd.,
Taiwan Kai Yih Industrial Co. Ltd. (“TKY”), Gordon Auto Body Parts, Auto Parts
Industrial Ltd., Cornerstone Auto Parts LLC, and several subsidiary companies affiliated
with these main defendants. However, DPPs reached a class-wide settlement with Tong
Yang, TKY, and Gordon, which I approved on August 13, 2015. 2 Thus, the only
defendants remaining are Auto Parts Industrial and Cornerstone, which are represented
by the same counsel and which I understand are affiliated, and Jui Li. The remaining
defendants oppose class certification.
II. Evidentiary Objections
I first address defendants’ evidentiary objections to certain documents which
DPPs rely on to support their motion for class certification. Defendants object to DPPs
use of documents produced by the settling defendants, arguing that they are hearsay
and have not been properly authenticated as business records. See Fed. R. Evid.
803(6). Defendants also object to documents used by DPPs’ expert, documents not
directly related to the alleged conspiracy, and 17 specific documents submitted by
DPPs.

1

IPPs also filed a motion for class certification, but briefing on the motion has been
delayed by discovery disputes and settlement negotiations.
2
IPPs also reached a settlement agreement with these defendants, which I approved on
January 14, 2016.
3

Defendants cite no authority in support of their claim that evidence submitted in
support of class certification must first be found admissible under the Federal Rules of
Evidence. The cases that defendants cite deal with the admissibility of evidence at trial,
see, e.g., United States v. Gomez, 763 F.3d 845 (7th Cir. 2014); Wheeler v. Sims, 951
F.2d 796 (7th Cir. 1992); Datamatic Servs., Inc. v. United States, 909 F.2d 1029 (7th
Cir. 1990); Rambus, Inc. v. Infineon Techs. AG, 348 F. Supp. 2d 698 (E.D. Va. 2004); in
a bankruptcy proceeding, see, e.g., Matter of James Wilson Assocs., 965 F.2d 160 (7th
Cir. 1992); or at summary judgment, see, e.g., Eisenstadt v. Centel Corp., 113 F.3d 738
(7th Cir. 1997); Matthews v. Waukesha Cty., 937 F. Supp. 2d 975 (E.D. Wis. 2013).
Seventh Circuit case law does not require that authenticity and admissibility be
established prior to class certification. See, e.g., Blihovde v. St. Croix Cty., 219 F.R.D.
607, 618 (W.D. Wis. 2003); Perkins v. Dart, No. 12-cv-00577, 2014 WL 866166, at *2
(N.D. Ill. Mar. 5, 2014); Coan v. Nightingale Home Healthcare, Inc., No. 1:05-CV-0101DFH-TAB, 2005 WL 1799454, at *1 n.1 (S.D. Ind. June 29, 2005); Dicker v. Allstate Life
Ins. Co., No. 89 C 4982, 1990 WL 106550, at *6 (N.D. Ill. July 12, 1990). Class
certification must be considered “[a]t an early practicable time,” Fed. R. Civ. P.
23(c)(1)(A), making objections based on admissibility and authenticity premature. See
Dicker, 1990 WL 106550, at *6. The questions of authenticity and admissibility raised by
defendants are pertinent to the merits of DPPs’ claims, not the Rule 23 analysis.
Perkins, 2014 WL 866166, at *2.
Further, DPPs have not yet conducted discovery on admissibility and authenticity
issues. Defendants, themselves, argued that I should not permit DPPs to conduct such
discovery until after class certification because it would be “premature.” See, e.g., May

4

2015 Status Conference Statement at 16 (ECF No. 688) (“[S]tipulations as to
authenticity and admissibility of documents will not be utilized until the trial on the merits
of this matter. . . . Therefore, the exercise remains premature and should take place
closer to trial.”); April 2015 Status Conference Statement at 3 (ECF No. 617) (same);
September 2015 Status Conference Statement at 6 (ECF No. 767) (refusing to discuss
admissibility issues “before it has had an opportunity to oppose class certification”).
Thus, at this preliminary stage, I will not require DPPs to establish the admissibility and
authenticity of documents supporting class certification. See Coan, 2005 WL 1799454,
at *1 n.1 (Hamilton, J.) (“At this preliminary stage and for these preliminary [class
certification] purposes, plaintiffs need not come forward with evidence in a form
admissible at trial.”).
Even if I were to consider defendants’ evidentiary objections, they are too vague
and conclusory to merit much discussion. For example, defendants assert that the
declarations from settling defendants establishing authenticity and admissibility filed by
DPPs are inadequate as “blanket assertion[s],” but they cite no supporting authority.
See Defs. Jui Li Enter. Co. Ltd., Auto Parts Indus. Ltd., and Cornerstone Auto Parts,
LLC’s Objs. to DPPs’ Evid. in Supp. of Mot. for Class Certification at 2 (ECF No. 880).
And in objecting to the 17 documents, defendants merely recite a laundry list of
objections without any argument or explanation as to how they apply to the specific
document at issue. See id. at 3–11. The objections fail for this reason as well. See
Davis v. Carter, 452 F.3d 686, 691–92 (7th Cir. 2006) (stating that perfunctory and
undeveloped arguments not supported by pertinent authority are waived).

5

III. Class Certification
Turning to class certification, Fed. R. Civ. P. 23(a) requires DPPs to show that (1)
the class is so numerous that joinder of all members is impracticable; (2) there are
questions of law or fact common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the interests of the class. DPPs
must also show that the litigation falls into one of the categories listed in Rule 23(b), and
they argue that, under Rule 23(b)(3), it is a suit in which (1) questions of law or fact
common to the class predominate over questions affecting only individual members,
and (2) a class action is superior to other available methods for adjudicating the
controversy.
A. Numerosity
In DPPs’ settlement with the Tong Yang, TKY, and Gordon defendants, 468
settlement class members filed claims, and the class DPPs seek to certify will include
roughly the same number of members. This is sufficiently numerous to render joinder of
all class members impracticable. See, e.g., Hubler Chevrolet, Inc. v. Gen. Motors Corp.,
193 F.R.D 574, 577 (S.D. Ind. 2000) (concluding that joinder of over 200 plaintiffs would
be impracticable) Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 183–84 (N.D.
Ill. 1992) (concluding that joinder of an estimated 120 to 300 plaintiffs would be
impracticable). Thus, DPPs satisfy the numerosity requirement.
B. Typicality and Adequacy of Representation
DPPs must also establish typicality and adequacy of representation, which often
overlap. Typicality requires a showing that the “claims or defenses of the representative

6

parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “A
claim is typical if it arises from the same event or course of conduct that gives rise to the
claims of the other class members and her claims are based on the same legal theory.”
Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (internal quotations and
citation omitted). Establishing typicality “simply requires a showing . . . that others suffer
from similar grievances.” Eggleston v. Chi. Journeymen Plumbers’ Local Union No. 130,
U.A., 657 F.2d 890, 896 (7th Cir. 1981). Some variation in the claims is acceptable as
long “the named plaintiff’s claim and the class claims [are] so interrelated that the
interests of the class members will be fairly and adequately protected in their absence.”
Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982); see also Oshana,
472 F.3d at 514 (“[S]ome factual variations may not defeat typicality.”); In re Ready-Mix
Concrete Antitrust Litig., 261 F.R.D. 154, 168 (S.D. Ind. 2009) (“[T]he representatives’
claims need not be identical to the class members; rather, it is sufficient if they are
substantially similar.”).
Closely related to typicality is Rule 23(a)’s requirement that “the representative
parties will fairly and adequately protect the interests of the class.” In connection with
this requirement, I consider whether the putative class representatives (1) have
antagonistic or conflicting claims with other class members, (2) have a sufficient interest
in the outcome of the case to ensure vigorous advocacy, and (3) have competent,
qualified, and experienced counsel capable of vigorously litigating the suit. Herkert v.
MRC Receivables Corp., 254 F.R.D. 344, 350–51 (N.D. Ill. 2008). The purpose of the
typicality and adequacy of representation requirements is to ensure that the class
representative’s interests are aligned with the class’s interests “‘so that the [class

7

representative] will work to benefit the entire class through pursuit of their own goals.’”
Ready-Mix Concrete, 261 F.R.D. at 168 (quoting In re Prudential Ins. Co. of Am. Sales
Practice Litig., 148 F.3d 283, 311 (3d Cir. 1998)).
Defendants argue that DPPs do not satisfy these requirements. First, they assert
that different class members had different bargaining power. They point to class
member, LKQ, which apparently makes up 60 percent of the purchaser market and cite
such cases as Deiter v. Microsoft Corp., 436 F.3d 461 (4th Cir. 2006) and In re
Graphics Processing Units Antitrust Litig., 253 F.R.D. 478 (N.D. Cal. 2008), which
involved classes including both wholesale buyers of a product, who negotiated prices
with the seller, and retail buyers, who paid prices set in advance. The present case,
however, is distinguishable in several respects. First, while some class members in the
present case may have had increased bargaining power, unlike in Deiter and Graphics
Processing Units, there is no sub-set of class members who had no bargaining power
and simply paid prices set by defendants. Second, the Deiter and Graphic Processing
Units courts concluded that the class representatives’ claims were atypical of a large
portion of the putative class. In the present case, however, only LKQ had substantially
more bargaining power than other class members. This is not enough to show that Fond
du Lac Bumper and Roberts’ claims are atypical of the class. Further, defendants offer
no reason to believe that some difference in bargaining power would create antagonism
between the class representatives and the class or otherwise render Fond du Lac
Bumper and Roberts inadequate as class representatives, and I fail to see how it would.
Defendants also point to certain facts which they contend render the putative
class representative atypical and inadequate, such as the fact that Fond du Lac Bumper

8

only purchased from one defendant, a distributor rather than a manufacturer. This,
however, does not make Fond du Lac Bumper atypical or inadequate. Fond du Lac
Bumper purchased directly from a named defendant, TYG Products Inc., thus it is within
the class definition. See Am. Compl. at 4, 25 (ECF No. 217) (defining the class as “[a]ll
persons and entities . . . that purchased AM Sheet Metal Parts directly from a
Defendant” and naming “TYG Products Inc.” as a defendant). It is, thus, a typical DPP.
Further, the class definition requires only one purchase, id., and because defendants
are subject to joint and several liability, Fond du Lac Bumper has an incentive to
proceed against all defendants in order to maximize the recovery. See In re Linerboard
Antitrust Litig., 203 F.R.D. 197, 208 (E.D. Pa. 2001), aff’d, 305 F.3d 145 (3d Cir. 2002).
As to Roberts, defendants argue that it knew about certain tooling agreements3
and that such knowledge renders it atypical and inadequate. While prior knowledge of a
conspiracy may create a conflict of interest with the class, the defendants’ leap from
knowledge of tooling agreements to knowledge of a price-fixing conspiracy is tenuous at
best. Roberts’ representative testified that Roberts did not see tooling agreements as
indicative of a price-fixing conspiracy but understood them to mean simply that a vendor
was “producing [a particular tool] out of one warehouse.” Servais Decl. Ex. C at 6 (ECF
No. 813-3). Roberts had no knowledge of how vendors negotiated tooling agreements.
Id. at 8–11. There is no evidence that Roberts knew of a price-fixing conspiracy, and
defendants provide no reason to believe that knowledge of tooling agreements creates

3

Tooling agreements are agreements by which defendants designated one defendant to
be the exclusive manufacturer of a particular aftermarket sheet metal part but still allow
other manufacturers to sell that part. DPPs argue that such tooling agreements are
evidence of a price-fixing conspiracy.
9

a conflict of interest between Roberts and other class members, and I fail to see how it
would.
Defendants also argue that Fond du Lac Bumper and Roberts made indirect
purchases of aftermarket sheet metal from non-defendants, unlike other class
members. The class representatives, however, made direct purchases from defendants,
and defendants do not explain how the existence of other purchases creates
antagonism with class members, and I fail to see how they would.
Defendants also contend that they have unique, individual defenses against the
putative class members which preclude a finding of typicality and adequacy of
representation. The existence of individual defenses, however, does not defeat
typicality. “Typicality under Rule 23(a)(3) should be determined with reference to the
company’s actions, not with respect to particularized defenses it might have against
certain class members.” Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996).
With regard to adequacy of representation, claimants vulnerable to unique
defenses are not allowed to be representative plaintiffs if they might be “distracted by a
relatively unique personal defense.” Koos v. First Nat’l Bank of Peoria, 496 F.2d 1162,
1165 (7th Cir. 1974); see also J.H. Cohn & Co. v. Am. Appraisal Assocs., Inc., 628 F.2d
994, 999 (7th Cir. 1980). Defendants argue that Fond du Lac Bumper and Roberts are
subject to potential unique defenses such as lack of standing, absence of damages, and
statute of limitations, but they do not elaborate on these arguments and fail even to
specify which defense would apply to which named representative. I assume that the
lack of standing defense relates to defendants’ argument that Fond du Lac Bumper is
not a “direct” purchaser because it purchased from a distributor subsidiary of defendant

10

Tong Yang. As noted above, however, this is a weak argument because Fond du Lac
Bumper directly purchased from a named defendant. I assume the statute of limitations
defense is related to defendants’ argument that Roberts knew about the conspiracy
before 2000, but again, this is also a weak argument because of the absence of a link
between knowledge of tooling agreements and knowledge of a price-fixing conspiracy.
While defendants may continue to press these issues, they do not “loom so large as to
create a genuine worry that [the class representatives] and [their] counsel will be
‘distracted’ from adequately representing the class.” Paper Sys., Inc. v. Mitsubishi
Corp., 193 F.R.D. 601, 608 (E.D. Wis. 2000).
Finally, defendants argue that the putative class representatives are atypical and
inadequate because LKQ allegedly encouraged anti-competitive conduct. Again, with
regard to the typicality analysis, whether defendants have an individual defense against
LKQ is not relevant because the focus is on defendants’ conduct. Wagner, 95 F.3d at
534. Additionally, defendants’ arguments regarding LKQ’s conduct are irrelevant to
whether Fond du Lac Bumper and Roberts are adequate class representatives.
Thus, Fond du Lac Bumper and Roberts satisfy the typicality requirement. Like
the claims of class members, their claims arise out of the defendants’ alleged
conspiracy to fix prices, and the class representatives also rely on the same legal
theory, that defendants violated the Sherman Act by conspiring to artificially raise, fix,
maintain, and stabilize prices causing them to overpay for aftermarket sheet metal.
Fond du Lac Bumper and Roberts also satisfy the adequacy of representation
requirement because they “are qualified and capable of fully pursuing the common
goals of the class without collusion or conflicts of interests.” Eggleston, 657 F.2d at 896.

11

And DPP’s counsel are experienced in antitrust and class action litigation and have
vigorously litigated this lawsuit including taking overseas depositions, arguing numerous
discovery motions, reviewing voluminous discovery documents, and negotiating fair and
reasonable settlements with several defendants.
B. Commonality and Predominance
To obtain class certification, DPPs must also show that “there are questions of
law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Additionally, because DPPs
seek class certification under Rule 23(b)(3), they must establish that such questions
predominate. As courts often do, I will analyze together whether there are common
questions and whether such questions predominate. Paper Sys. Inc., 193 F.R.D. at 612.
To satisfy the commonality requirement, DPPs need only show a single common
question. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011). It is not enough,
however, that class members allege a violation of the same provision of law. Rather, the
purported class’s allegations “must be of such a nature that it is capable of classwide
resolution—which means that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one stroke.” Id. at 350. Thus,
the focus must be whether a defendant’s injurious conduct gives rise to class members’
claims. Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014); see also
Dukes, 564 U.S. at 350 (“Commonality requires the plaintiff to demonstrate that the
class members have suffered the same injury.”); Ready-Mixed Concrete, 261 F.R.D. at
167 (describing the commonality requirement as requiring that “the class claims arise
out of the same legal or remedial theory”).

12

Predominance requires me to consider whether “the questions of law or fact
common to class members predominate over any question affecting only individual
members.” Fed. R. Civ. P. 23(b)(3). The predominance requirement is more demanding
than commonality, requiring a comparison of common questions and individual
questions and a determination of which predominate. Comcast Corp. v. Behrend, 133 S.
Ct. 1426, 1432 (2013).
“Common issues are those for which the case can be established through
common evidence, while individual issues are those for which evidence will vary from
class member to class member.” Doster Lighting, Inc. v. E-Conolight, LLC, No. 12-C0023, 2015 WL 3776491, at *8 (E.D. Wis. June 17, 2015) (citing In re Zurn Pex
Plumbing Prods. Liab. Litig., 644 F.3d 604, 618 (8th Cir. 2011)). Common issues
predominate when their resolution is more complex and difficult to resolve as compared
to individual issues. Suchanek, 764 F.3d at 760; see also Doster Lighting, 2015 WL
3776491, at *8 (“Common issues predominate if they have a direct impact on every
class member’s effort to establish liability, and if that impact is more substantial than the
impact of individualized issues in resolving the claims.”). Although common questions
must predominate, DPPs do not need to show that they will prevail on those questions
on the merits. Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 133 S. Ct. 1184, 1191
(2013). Further, the predominance requirement does not require DPPs to prove that
each element of their claim can be proven class-wide. Id. at 1196.
“Predominance is a test readily met in certain cases alleging . . . violations of the
antitrust laws.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). To allege a
valid claim under § 1 of The Sherman Act, a plaintiff must prove that (1) defendants had

13

a contract, combination, or conspiracy; (2) the conspiracy impacted the market; and (3)
it was injured. In re Dairy Farmers of Am., Inc. Cheese Antitrust Litig., 801 F.3d 758,
762 (7th Cir. 2015); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 585–86 (2011) (stating that to establish a claim under the Sherman Act,
plaintiff must show that “[defendants] entered into an illegal conspiracy that caused
respondents to suffer a cognizable injury”). DPPs contend that all three of these
elements are common questions because they can be proven on a class-wide basis
and thus that common questions predominate.
1. Antitrust Conspiracy
Commonality is satisfied with respect to the first element of DPPs’ claim because
the question of whether defendants conspired to restrain trade is common to the class.
Each putative class member’s claim requires proof of a conspiracy, and resolution of
this question “will resolve an issue that is central to the validity of each one of the claims
in one stroke.” Dukes, 564 U.S. at 350. In other words, DPPs need only prove
defendants’ conduct constituted restraint of trade under The Sherman Act, and that will
answer the question of whether defendants acted in restraint of trade with regard to
each individual class member’s claims. See, e.g., Ready-Mixed Concrete, 261 F.R.D. at
167; Sebo v. Rubenstein, 188 F.R.D. 310, 314 (N.D. Ill. 1999).
DPPs present documents that they contend indicate common conspiratorial
conduct. Defendants dispute this, arguing that the agreements and meetings referenced
in the documents do not establish conspiratorial conduct and that pricing was
individually negotiated. Defendants’ argument, however, relates to the merits of DPPs’
claims rather than to DPPs’ assertion that questions common to the class exist. Amgen,

14

133 S. Ct. at 1195 (“Merits questions may be considered to the extent—but only to the
extent—that they are relevant to determining whether the Rule 23 prerequisites for class
certification are satisfied.”). DPPs clearly show that the first element of their claim, the
existence of a conspiracy among defendants to restrain trade, is a question common to
the class. They, therefore, satisfy the commonality requirement. Because DPPs must
also establish predominance, I will address the other elements of their claim.
2. Antitrust Impact and Damages
The parties dispute whether the second and third elements of DPPs’ antitrust
claim, whether defendants’ actions caused an antitrust impact and whether class
members were injured, can be proven through common evidence. DPPs present
examples of common evidence they contend proves impact and injury. DPPs’ expert,
Dr. Russell Lamb, an economist, also opines that DPPs can prove impact and damages
on a class basis. Lamb performed a multiple regression analysis to determine whether
defendants’ alleged anti-competitive conduct would affect the market and concluded
that it would. He also considered evidence provided by DPPs, examined aspects of the
aftermarket sheet metal market, 4 and analyzed whether a pricing structure existed in the
industry such that he could conclude that all or nearly all class members would have
been similarly impacted by the anti-competitive conduct. Lamb also used the regression

4

For example, Lamb notes that aftermarket sheet metal is a commodity, meaning that
every unit is the same; that different manufacturers’ products are interchangeable; and
that competition between manufacturers is based primarily on price. He also notes that
defendants were the primary manufacturers of aftermarket sheet metal, meaning that
purchasers had few alternatives to avoid artificially inflated prices and making it more
likely that defendants’ conduct affected the entire class. Additionally, Lamb points out
the absence of economic substitutes for aftermarket sheet metal, which reduces the
bargaining power of individual class members.
15

analysis to demonstrate how antitrust damages can be measured on a class-wide basis
by estimating a common overcharge.
Defendants contest DPPs’ evidence of common impact and damages, including
Lamb’s opinions, and offer their own expert, Dr. Janusz Ordover. At the class
certification stage, however, I do not weigh in on a battle of experts or the merits of the
case unless doing so is required to resolve an issue relevant to class certification. See
Dukes, 564 U.S. at 350–51 (stating that class determinations “[f]requently . . . will entail
some overlap with the merits of the plaintiff’s underlying claim” and that the merits
should only be considered where necessary to resolve class certification). When a
plaintiff’s expert opinion is criticized by defendant, however, I must “investigate[] the
realism of the plaintiffs’ injury and damage model in light of the defendants’
counterarguments.” Parko v. Shell Oil. Co., 739 F.3d 1083, 1086 (7th Cir. 2014). My
inquiry into the validity of an expert’s opinion is limited “to determin[ing] if the proffered
expert has the requisite integrity to demonstrate class-wide impact” and damages. In re
Optical Disk Drive Antitrust Litig., 303 F.R.D. 311, 320 (N.D. Cal. 2014).
a. Common evidence
Defendants, first argue that DPPs’ evidence doesn’t suggest common impact. I
disagree. Take, for example, tooling agreements. DPPs argue that such agreements,
taken together, can be regarded as evidence of conspiratorial conduct that affected the
price of parts and thus the entire class. Defendants dispute this, arguing that each
tooling agreement involved only some defendants and only one aftermarket sheet metal
part. While it may be true that an individual tooling agreement involved only some
defendants and only one part, and thus only affected class members who purchased

16

that part, that tooling agreement is one of many that DPPs intend to present. DPPs
intend to present tooling agreements affecting hundreds of parts. Each agreement
represents only a small part of the proposed mosaic of evidence. Further, DPPs intend
to present emails between the parties which support a broad price-fixing conspiracy
between defendants, minutes from defendants’ meetings in which price-fixing was
discussed, as well as other evidence. Taken together, the evidence that DPPs proffer
supports their contention that they can prove defendants’ alleged conspiratorial conduct
on a class-wide basis. Whether a jury will agree with DPPs is a different matter and not
part of the class certification analysis.
b. Lamb’s market characteristics analysis
Defendants also disagree with Lamb’s conclusion that certain market
characteristics make it likely that any price-fixing conspiracy would have been felt by all
or nearly all class members. Defendants argue that the market characteristics Lamb
cites are not evidence of class-wide impact, citing In re Optical Disk Drive Antitrust Litig.
for the proposition that “while such industry characteristics may be preconditions for any
colorable case of class-wide impact, they do not establish such impact.” 303 F.R.D. at
320. While I agree that “antitrust impact based on a simple description of general
market characteristics cannot be presumed,” Michelle M. Burtis & Darwin V. Neher,
Correlations and Regression Analysis in Antitrust Class Certification, 77 Antitrust L.J.
495, 501 (2011), Lamb did not rely solely on market characteristics in concluding that
DPPs can prove class-wide impact. His consideration of market characteristics was only
a part of his broader analysis, which also included examination of evidence and a

17

determination that a pricing structure existed. Thus, Lamb’s consideration of market
characteristics does not render his conclusion of class-wide antitrust impact unsound.
c. Lamb’s pricing structure analysis
Defendants also contest Lamb’s determination that a pricing structure existed. In
Lamb’s view, a pricing structure means “that the prices paid by different purchasers for
the same product from a single seller, or for the same product from different sellers,
tend to move together over time.” First Lamb Report at 23 (ECF No. 712-1). Further,
when prices move together, “any force that acts to artificially raise the price in the
market generally for a given product . . . would result in all, or nearly all, purchasers of
that product paying a higher price.” Id. In other words, “[w]here there is a pricing
structure, any factor (such as the alleged misconduct) which artificially inflates prices
generally, would result in higher prices that are broadly experienced by purchasers.”
Second Lamb Report at 6–7 (ECF No. 813-1). Lamb further points out that in setting
prices and negotiating with purchasers, defendants used OEM prices as a reference
point, which also indicates the existence of a pricing structure. Id. at 21–22.
Defendants argue that Lamb mistakenly considered the movement of actual
prices over time rather than “residual prices,” which Ordover defines as the “difference
between predicted actual prices and but-for prices.” First Ordover Report at 32 (ECF
No. 786-1). In other words, before comparing prices, Lamb should have eliminated
other factors influencing price (such as the cost of materials). Lamb’s approach,
however, makes sense. His pricing structure analysis did not involve an assessment of
the effect of the alleged conspiratorial conduct on price—for that, he conducted a
separate regression analysis, which I will discuss in more detail—but merely an effort to

18

determine whether any factor (not just anti-competitive conduct) would affect class
members similarly. Lamb was not trying to isolate the effect of one factor in particular,
thus he did not have to eliminate other factors influencing price. His analysis shows that
prices generally move together over time. From this, he concludes that if defendants
conspired to artificially inflate prices, this—like other price-influencing factors—would
have resulted in all or nearly all class members paying a higher price. His analysis
seems sound and sufficient to show that antitrust impact can be proven on a class-wide
basis.
Defendants also argue that Lamb’s price structure analysis shows only that the
prices of the same part, not different parts, moved together. Ordover concluded that no
price structure existed because the prices of different parts sometimes moved in
opposite directions. Id. at 7–8. Defendants contend that Lamb assumes that an increase
in the price of one part meant an increase in the prices of others. Lamb, however,
reasonably explains why it is unnecessary to show a correlation of increases across
parts where, as here, the evidence indicates that defendants set prices using reference
points to OEM prices. 5 Lamb concluded that “if Defendants use a percentage of the
corresponding OEM price as a reference point . . . , any increase in this reference point
resulting from the alleged conspiracy would affect all AM Sheet Metal Parts.” Second
Lamb Report at 21–22. This makes sense. If, for example, defendants artificially raised
the price of parts from 20 percent of OEM prices to 40 percent, this would affect the
prices of parts across the board. Further, a correlation of the movement of prices across
5

For example, DPPs present evidence that defendants “typically set prices for AM
Sheet Metal Products at levels that are 20 percent to 30 percent of OEM part prices.”
Second Lamb Report at 21 (citing Wang Dep. 154:18–155:2 (Feb. 17, 2012); Yang Dep.
124:1–125:10 (Feb. 16, 2012)).
19

parts would not necessarily mean that the conspiratorial conduct had not occurred. For
example, if the OEM part price for a 2000 Honda hood increased but the OEM part price
for a 2000 Honda door decreased, and the prices of the corresponding aftermarket
sheet metal parts were based on the OEM prices, one would not see a correlation
across aftermarket sheet metal parts. However, each part would still be artificially
inflated at 40 percent of the OEM price and a pricing structure would still exist. Thus,
Lamb’s comparison of the prices of individual parts appears sound and strongly
suggests that conspiratorial conduct would have affected all or nearly all class
members.
Defendants also argue that a pricing structure could not have existed because
class members negotiated prices individually. The evidence indicates, however, that
individual negotiations involved the use of reference pricing. See First Lamb Report at
30 (citing Tai Dep. 93:25–155:2 (Nov. 6, 2014); Wang Dep. 154:18–155:2 (Feb. 17,
2012); Cheng Dep. 23:11–24:3 (Feb. 14, 2012); Guan Dep. 28:5–30:20 (Feb. 15,
2012)). And, again, Lamb concluded that “when prices are negotiated based on a
reference price, and the reference price is artificially inflated by anticompetitive conduct,
the prices paid by customers are higher than they otherwise would have been.” Second
Lamb Report at 21–22. In other words, because the common starting point for
negotiations was artificially inflated, so too where the resulting negotiated prices for all
or nearly all customers. This opinion is sound and consistent with case law. See, e.g., In
re Aftermarket Auto. Lighting Prods. Antitrust Litig., 276 F.R.D. 364, 369 n.3 (C.D. Cal.
2011) (noting that “courts have certified classes where plaintiffs have alleged that
defendants conspired to set an artificially inflated base—or ‘benchmark’ price—from

20

which all other prices are triggered” and that in such cases, “classes were certified . . .
regardless whether some members of the class negotiated prices individually, or
whether . . . differences among product type, customer class, and method of purchase
existed”).
d. Lamb’s regression analysis
Finally, Lamb performed a multiple regression analysis and concluded that anticompetitive conduct would have affected pricing and that a class-wide overcharge could
be measured. To determine whether anti-competitive conduct would have resulted in
higher prices, Lamb compared pricing during the class period and after. He eliminated
factors other than anti-competitive conduct that could have affected the price of parts in
order to discover whether there was a correlation between the alleged anti-competitive
conduct and price. This enabled him to compare prices during the alleged conspiracy
with prices purchasers would otherwise have paid, known as the but-for price. First
Lamb Report at 38. He concluded that anti-competitive conduct would have affected
aftermarket sheet metal prices and then used his model to measure the estimated
overcharge that all or nearly all class members paid. Second Lamb Report at 8. DPPs
argue that they can use this measurement to prove damages class-wide. Regression
analysis is a commonly accepted mechanism for determining whether prices during a
class period were higher than they would otherwise have been and evaluating common
damages. Paper Sys. Inc., 193 F.R.D. at 615; In re Potash Antitrust Litig., 159 F.R.D.
682, 698 (D. Minn. 1995); In re Domestic Air Transp. Antitrust Litig., 137 F.R.D. 677,
691–93 (N.D. Ga. 1991); Section of Antitrust Law, American Bar Association, Proving

21

Antitrust Damages: Legal and Economic Issues 145 (1996); Daniel L. Rubenfeld,
Econometrics in the Courtroom, 85 Colum. L. Rev. 1048, 1087 (1985).
Defendants do not dispute the utility of regression analysis but criticize Lamb’s
methodologies. They argue that Lamb failed to account for all competitive market
factors, specifically an alleged price decrease. As noted in my decision on defendants’
motion to exclude Lamb’s opinion, however, Lamb’s regression analysis accounted for
numerous market factors, see First Lamb Report at 43–46, and he reasonably explains
why he did not account for the price decrease which defendants point to, namely that in
his view the alleged decrease is unsupported by evidence. Second Lamb Report at 35.
Moreover, even modifying his regression analysis to account for the decrease, it still
results in a statistically significant estimate of an overcharge. Second Lamb Report at
19. In other words, even corrected in defendants’ favor, Lamb’s regression analysis
indicates a common overcharge.
Defendants also disagree with Lamb’s use of the September 5, 2009 through
December 31, 2011 benchmark period in his regression analysis, 6 arguing that he
wrongly assumed that no anti-competitive conduct occurred during the benchmark
period. Lamb’s use of the benchmark period, however, was not improper. For purposes
of class certification, Lamb was asked to assume that DPPs’ allegations regarding anticompetitive conduct were true, and determine whether impact and damages could be
proven on a class-wide basis. Thus, he properly assumed that DPPs’ theory was
correct. See Burtis & Neher, supra, at 500. Further, as Lamb explained, even if some

6

To determine the but-for price, Lamb compared prices in the class period with those in
the benchmark period. He chose September 5, 2009, the day after the class period
through December 31, 2011 based on information provided by DPPs.
22

anti-competitive conduct occurred in the benchmark period, it would only render his
overcharge estimate conservative. This make sense; if anti-competitive conduct
occurred during the benchmark period, then the but-for price that Lamb calculated
would have been higher. Comparing a higher but-for price with the actual price would
result in a lower overcharge percentage. Thus, even if Lamb erred as defendants
assert, the error would benefit defendants. Moreover, Ordover appears to support the
benchmark period Lamb used. See First Ordover Report at 40 (stating that an example
of an appropriate benchmark period was “after the Class Period ended in 09/2009”).
Finally, defendants argue that Lamb’s regression analysis wrongly assumes the
same overcharge across all customers and parts and thus assumes rather than
determines class-wide impact and common damages. Defendants point to Ordover’s
analysis which measured the overcharge per individual customer and found that many
customers were not overcharged. Defendants assert that this undermines Lamb’s claim
that a common overcharge can be calculated for the class.
However, Lamb’s analysis refutes this contention. Lamb did not assume common
injury or common damages, the questions he was asked to consider. See First Lamb
Report at 6; Second Lamb Report at 14; see also Second Lamb Report at 30 (“Dr.
Ordover is wrong that my regression model assumed ‘that the alleged conduct impacted
all or nearly all purchases by all or nearly all members of the class.’”). Further, Lamb’s
regression analysis did account for price differences related to specific parts and
specific customers. First Lamb Report at 49–50 (noting the use of indicator variables “to
capture any differences in pricing related to either a specific AM Sheet Metal Part or a
specific customer”).

23

More to the point, Lamb explains that the purpose of his regression analysis was
not to prove that the alleged anti-competitive conduct would have impacted all or nearly
all putative class members but rather, along with his analysis of other common
evidence, to determine whether the anti-competitive conduct resulted in artificially
inflated prices generally and then later to measure damages. His determination that
anti-competitive conduct would have affected all or nearly all class members was based
on his analysis of common evidence, his review of the characteristics of the aftermarket
sheet metal market, and his determination that a pricing structure existed. Second Lamb
Report at 30–31. Thus, Lamb’s regression analysis does not assume what it sets out to
prove because it was never intended to prove class-wide impact in the first place. Once
he determined that anti-competitive conduct would have affected the market generally
and that all or nearly all class members would have felt this impact similarly, his
regression analysis sought to measure that common impact. Lamb’s approach was
neither novel nor unusual.
Moreover, as stated, Ordover’s criticisms are based on the way Lamb conducted
his multiple regression analysis not on his use of regression analysis. Whether Lamb’s
or Ordover’s approach is more persuasive is a question for the factfinder. It is sufficient
at the class certification stage that DPPs have shown that they have a way to measure
damages class-wide. Aftermarket Auto. Lighting Prods., 276 F.R.D. at 369 n.3; see also
In re TFT-LCD Antitrust Litig., 267 F.R.D 291, 313 (N.D. Cal. 2010) (“[T]he Court’s
inquiry is limited to determining whether plaintiffs have made a sufficient showing that
the evidence they intend to present concerning antitrust impact will be made using
generalized proof common to the class and that these common issues predominate.”).

24

Defendants also argue Lamb’s damages model fails under Comcast, which holds
that an economic model attempting to estimate class-wide damages fails where it
“identifies damages that are not the result of the wrong.” 133 S. Ct. at 1435. I disagree
with this comparison. In Comcast, the plaintiffs had four theories of antitrust liability, id.
at 1429–30, and the district court certified a class based on one of them. The Supreme
Court rejected certification because the plaintiffs’ damages model did not correspond
solely with the theory that had been certified. Id. at 1432–33. In the present case,
however, defendants present no evidence indicating Lamb’s regression analysis
measures damages based on an uncertified theory of liability. Once again, defendants
disagree with the way Lamb conducted his analysis, but this is a question for the
factfinder and not a bar to class certification. Paper Sys. Inc., 193 F.R.D. at 614
(“[D]isagreements over methodology . . . raise material disputed questions that will
ultimately need to be resolved by the factfinder.”).
In sum, Lamb’s analysis and conclusions regarding common impact appear to be
sound. He looked at evidence common to the class and performed a multiple regression
analysis to determine that anti-competitive conduct would have affected prices
generally. He did this by factoring out all variables which may affect price except the
anti-competitive conduct and comparing the actual price paid with the price customers
would otherwise have paid. From this, he was able to determine that anti-competitive
conduct would have artificially raised prices. Then, he examined whether such conduct
would have had a common impact. He examined common evidence and market
characteristics and concluded that a pricing structure existed, which included a
reference pricing system that affected all aftermarket parts and individual negotiations.

25

From all of this, he concluded that all or nearly all class members would have overpaid
as a result of defendants’ alleged anti-competitive conduct. I conclude that Lamb’s
analysis is reasonable and, if credited by the fact-finder, would demonstrate class-wide
impact. Thus, DPPs satisfy their burden of showing that impact can be proven on a
class-wide basis.
I further find that Lamb’s regression analysis serves as a sufficiently reliable
method for establishing that damages can be proven on a class-wide basis. After
concluding that anti-competitive conduct would have affected pricing and that all or
nearly all class members would have been similarly affected, he used regression
analysis to estimate damages. His methodology is commonly accepted as a way of
estimating damages in antitrust cases, his methodology appears to be sound in that he
accounted for numerous factors other than anti-competitive conduct in an attempt to
isolate the effects of the alleged anti-competitive conduct, his analysis is based on
thousands of pieces of transactional data, and he has implemented and run his
methodology. “If accepted by the factfinder at the appropriate stage of litigation, the
methodology promises to provide precisely the kind of single mathematical formula
which can establish each class member’s damages.” Id. at 616. Thus, DPPs also show
damages can be proven on a class-wide basis.
e. Predominance
DPPs show that all three elements of their antitrust claim are amenable to
common proof and thus are questions common to the class. Because liability, impact,
and damages can be proven on a class-wide basis, I conclude that common questions
predominate. While defendants may have individual defenses against certain class

26

members, this does not preclude class certification, see Suchanek, 764 F.3d at 756–58,
nor does it appear that such questions will overwhelm questions common to the class,
Comcast, 133 S. Ct. at 1432–33. Further, while certain class members may require
individual damages assessments, DPPs appear to be able to at least estimate
damages, and the need for individual damages assessments does not defeat class
certification given the complexity of the common issues of liability and impact. See
Suchanek, 764 F.3d at 760; Doster Lighting, 2015 WL 3776491, at **9–10.
F. Whether A Class Action is Superior
Finally, I must determine whether a class action would be superior to other
methods of adjudicating the controversy, such as individual lawsuits, and I consider four
factors: (1) the interest of class members in individually controlling the litigation; (2) the
extent to which litigation already has commenced by other class members; (3) the
desirability of concentrating litigation in a particular forum; and (4) the management
difficulties likely to be encountered. Fed. R. Civ. P. 23(b)(3). Where there are many
class members and common issues predominate, the superiority requirement is usually
met. Ready-Mixed Concrete, 261 F.R.D. at 173.
All four factors are met here. There are hundreds of class members, and the
nature of the case would make it difficult for them to proceed on their own. Defendants
are Taiwanese companies, and the cost of litigating against them would be preclusive.
Further, no class member has commenced an action against defendants. While some
individual

issues

may

complicate

manageability,

common

predominate that a class action is the superior method of litigation.
Accordingly, I will grant DPPs’ motion for class certification.

27

issues

sufficiently

IV. Motions to Seal
The parties filed motions to seal portions of the briefs as evidentiary exhibits
including expert reports. The only reason given for the request to seal is that defendants
designated them confidential pursuant to the protective order.
Information relied upon in a judicial decision is presumed to be available to the
public, and a party seeking to seal a document must show good cause. Cty. Materials
Corp. v. Allan Block Corp., 502 F.3d 730, 740 (7th Cir. 2007). This means that the
information must be a trade secret, protected by a recognized privilege, or required by
statute to be maintained in confidence. Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544,
546 (7th Cir. 2002). The parties cannot simply agree to keep documents confidential.
See United States v. Sanford-Brown, Ltd., 788 F.3d 696, 713 (7th Cir. 2015) (“[W]e [will]
not seal documents . . . simply because the parties ha[ve] agreed to do so among
themselves because that practice deprives the public of material information about the
judicial process.”). The parties here fail to show good cause. Thus, I will deny the
motions to seal.
V. Motions Unrelated to Class Certification
Several outstanding motions unrelated to class certification remain. In October
2015, Jui Li sought production of pre-2009 claims records from one of the indirect
purchaser plaintiffs, Fireman’s Fund Insurance Company. I ordered the parties to meet
and confer and since then, neither party has raised the issue. Further, briefing on IPPs’
class certification motion has begun, and it is my understanding that the IPPs and
remaining defendants are engaged in settlement negotiations. Thus, I assume that the
issue has been resolved and will therefore deny the motion, without prejudice.

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Additionally, as noted, DPPs have already settled with several defendants
originally named in this action. DPPs argue that the declaration and report of Markham
Sherwood, the claims administrator, should remain under seal. Neither party has
attempted to show good cause. Therefore, I will deny the motion to seal this information.
VI. Conclusion
THEREFORE, IT IS ORDERED that direct purchaser plaintiffs’ motion to certify
class (ECF No. 710) is GRANTED.
IT IS FURTHER ORDERED that the parties’ motions to seal/motions to restrict
(ECF Nos. 709, 788, 811, 839, 849, 858, 882, 888) are DENIED. The Clerk of Court
shall make the relevant documents publicly available.
IT IS FURTHER ORDERED that direct purchaser plaintiffs’ motion to seal (ECF
No. 801) is DENIED. The Clerk of Court shall make the relevant documents publicly
available.
IT IS FURTHER ORDERED that Jui Li’s motion to compel (ECF No. 780) is
DENIED without prejudice.
Dated at Milwaukee, Wisconsin, this 24th day of June, 2016.

s/ Lynn Adelman
__________________________
LYNN ADELMAN
District Judge

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