The opinion of the court was delivered by: JOHN PADOVA, District Judge
Plaintiff Bradburn Parent/Teacher Store has filed a Motion for Class
Certification, seeking certification of a class of plaintiffs who
directly purchased invisible and transparent tape from Defendant from
October 2, 1998 until the present. Defendant 3M opposes the motion on the
ground that the class proposed by Plaintiff does not satisfy the
prerequisites for certification found in Federal Rule of Civil Procedure
23. Specifically, Defendant argues that Plaintiff will not adequately
represent the members of the proposed class. Defendant further argues
that, given the unique factual circumstances of this case, individual
questions predominate over common questions. For the reasons that follow,
the Court finds that Plaintiff is not an adequate representative of the
proposed class pursuant to Rule 23(a)(4), and therefore denies
Plaintiff's Motion for Class Certification.
The conduct of Defendant which forms the basis of this lawsuit was the
subject of a prior lawsuit in this Court, LePage's, Inc. v. 3M,
Civ. A. No. 97-3983. In that suit, a competing supplier of
transparent tape, LePage's, Inc. ("LePage's"), sued Defendant
alleging, inter alia, unlawful maintenance of monopoly power in
violation of Section 2 of the Sherman Act, 15 U.S.C. § 2. After a
nine-week trial, the jury found in favor of LePage's on its unlawful
maintenance of monopoly power claim, and awarded damages of
$22,828,899.00, which were subsequently trebled to $68,486,697.00.
See LePage's, Inc. v. 3M, Civ. A. No. 97-3983, 2000 U.S. Dist.
Lexis 3087 (E.D. Pa. Mar. 14, 2000). This Court subsequently denied
Defendant's Motion for Judgment as a Matter of Law with respect to this
claim. See id. A panel of the United States Court of Appeals
for the Third Circuit ("Third Circuit") initially reversed this Court's
Order upholding the jury's verdict and directed this Court to enter
judgment for Defendant on LePage's' unlawful maintenance of monopoly
power claim. LePage's, Inc. v. 3M, 277 F.3d 365 (3d Cir. 2002)
("LePage's I"). Upon rehearing en banc, the Third Circuit
vacated the panel decision and reinstated the jury verdict against
Defendant on LePage's' unlawful maintenance of monopoly power claim.
LePage's, Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003)
The Complaint in this matter alleges one count of monopolization in
violation of Section 2 of the Sherman Act, 15 U.S.C. § 2. The
Complaint alleges that Defendant unlawfully maintained its monopoly in
the transparent tape market through its
bundled rebate programs*fn1
and through exclusive dealing
arrangements with various retailers. The Complaint asserts that, as a
result of Defendant's conduct, Plaintiff and other members of the
proposed Class have "suffered antitrust injury." (Compl. ¶ 27). The
damages period in this case runs from October 2, 1998 until the present.
(Compl. ¶ 2). Plaintiff seeks declatory relief, permanent injunctive
relief, treble compensatory damages, attorney's fees, costs and interest.
(See Compl. ¶¶ A-F). Plaintiff seeks certification of:
a class of persons . . . directly purchasing
from the Defendant invisible and transparent tape
between October 2, 1998 and the present.
(Compl. ¶ 10.)
Before a class may be certified pursuant to Federal Rule of Civil
Procedure 23, the plaintiff "must establish that all four requisites of
Rule 23(a) and at least one part of Rule 23(b) are met." Baby Neil
v. Casey, 43 F.3d 48
, 55 (3d Cir. 1994).*fn2
requirements of Rule 23(a) are as follows:
(1) Numerosity (a "class [so large] that joinder
of all members is impracticable");
(2) commonality ("questions of law or fact common
to the class");
(3) Typicality (named parties' claims or defenses
are "typical of . . . the class"); and
(4) adequacy of representation (representatives
"will fairly and adequately protect the interests
of the class").
Amchem Prods. v. Windsor, 521 U.S. 591, 613 (1997)(citing
Fed.R.Civ.P. 23(a)). The purpose of these procedural requirements is
"so that the court can assure, to the greatest extent possible, that the
actions are prosecuted on behalf of the actual class members in a way
that makes it fair to bind their interests." Newton v. Merrill,
Lynch, Pierce, Fenner & Smith, 259 F.3d 154
, 182 (3d Cir. 2001).
Plaintiff asserts that it satisfies the requirements of Rule 23(b)(3).
The prerequisites for certification under Rule 23(b)(3) are as
To qualify for certification under Rule 23(b)
(3), a class must meet two requirements beyond the
Rule 23(a) prerequisites: Common questions must
"predominate over any questions affecting only
individual members"; and class resolution must be
"superior to other available methods for the fair
and efficient adjudication of the controversy."
Amchem Prods., 521 U.S. at 615.
Class certification rests within the District Court's discretion.
Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir. 1985).
In determining whether the class should be certified, the Court
examines only the requirements of Rule 23 and does not look at whether
the Plaintiffs will prevail on the merits. Eisen v. Carlisle &
Jacauelin, 417 U.S. 157, 177-78 (1973) ("In determining the
propriety of a class action, the question is not whether the plaintiff or
plaintiffs have stated a cause of action or will prevail on the merits,
but rather whether the requirements of Rule 23 are met.") (citations
omitted). However, the Court must also "carefully examine the factual and
legal allegations" made in the Complaint. Barnes v. American Tobacco
Co., 161 F.3d 127, 140 (3d Cir. 1998).
A. Numerosity and Commonality
Plaintiff has asserted, without contradiction, that the number of
members of the proposed class is "well over 200." (Pl's Mot. Class Cert.
at 16.) Defendant does not argue that the numerosity requirement is not
satisfied, and the Court finds that the class is so large that the
joinder of all members is impracticable. Fed.R.Civ.P. 23(a)(1).
Accordingly, the numerosity requirement is satisfied.
"The commonality requirement will be satisfied if the named plaintiffs
share at least one question of fact or law with the grievances of the
prospective class." Baby Neil, 43 F.3d at 56. Defendant does
not contest commonality, and the Court finds that
numerous common questions of law and fact are present in ...