Opinion and Order
WOOD, District Judge:
This is a motion for an order pursuant to Rule 23(c)(1) declaring that this case may be maintained as a class action. The complaint, which is similar to a prior criminal indictment returned against most of the defendants by a grand jury in New York in 1968, United States of America v. N.V. Nederlandsche Combinatie Voor Chemische Industrie, et al., No. 68-CR 870 (S.D.N.Y. 1968), alleges that the named foreign and domestic business entities conspired to monopolize the quinine and quinidine products industry by engaging in a variety of illegal practices including price-fixing, allocation of territorial markets, and allocation of the supply of raw material. It is further alleged that the conspiracy continued from 1958 through 1966, and that during this period the price of quinine and quinidine products increased severalfold.
Plaintiff seeks to represent a class consisting of "all users of quinidine for heart ailments, comprising about a quarter of a million people throughout the United States . . ." (Complaint, para. 3). In an effort to resolve what we consider the complex and far-reaching issues presented by this motion, we have heard argument on two occasions, and entered two orders directing the parties to provide specific documentary information on a number of issues. (Orders of March 19, 1970, and July 14, 1970). Both parties have provided extensive briefing on a number of the legal issues involved.
However, since the time when such hearings were held and briefs submitted, we have decided a number of the issues presented here in a similar context in our Opinion and Order entered on August 19, 1970, in Sol S. Turnoff Drug Distributors, Inc. v. N.V. Nederlandsche Combinatie Voor Chemische Industrie, et al., 51 F.R.D. 227, in which we tentatively permitted the plaintiff to maintain a similar action on behalf of a wholesaler-retailer class against the defendants named in this action. We will not burden the record by repeating our discussion of those issues here, but our conclusions are the same: (1) The defendants here and in Turnoff have contended that the plaintiff should be precluded from maintaining a class action because at this point he has not shown a probability of success on the merits; we conclude here as in Turnoff that it is sufficient at this point to sustain a class action that "the plaintiff's claim of conspiracy may have merit and is a genuine issue in this litigation." Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452 (E.D. Pa. 1968).
(2) The defendants here and in Turnoff have contended that a class action cannot be maintained even assuming that a conspiracy could be proved, because in light of the decision of the Supreme Court in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 20 L. Ed. 2d 1231, 88 S. Ct. 2224 (1968), the plaintiff's class is as a matter of law too remote from any injury flowing from the conspiracy to recover damages; we conclude here as we did in Turnoff that "the determination whether there is a proper class does not depend on the existence of a cause of action," Kahan v. Rosenstiel, 424 F.2d 161, 169, and that such contentions which relate to the legal possibility of recovery are properly made pursuant to Rule 56 or Rule 12(b)(6), not Rule 23;
(3) Here as in Turnoff the defendants have contended that there are no common issues of fact or law common to the members of the class which predominate over any questions affecting individual members; we conclude here as we did in Turnoff that "as in the normal antitrust case, proof of the conspiracy will present predominant questions of both law and fact." State of Minnesota v. United States Steel Corporation, 44 F.R.D. 559, 572 (D.C. Minn. 1968).
Finally, here as in Turnoff we will not approve the sending out of notices until any preliminary motions have been disposed of and until the defendants have had the opportunity, if they desire it, to challenge the substantiality of the plaintiff's case. Cf. 3A Moore's Federal Practice, para. 23.45.
At the same time, there are questions in this case relating to notice and manageability which were not present in Turnoff. Rule 23(c)(2) provides that in any class action maintained under (b)(3):
"The court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort."