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BRADBURN PARENT/TEACHER STORE v. 3M

March 1, 2004.

BRADBURN PARENT/TEACHER STORE, INC.
v.
3M (MINNESOTA MINING AND MANUFACTURING COMPANY)



The opinion of the court was delivered by: JOHN PADOVA, District Judge

MEMORANDUM

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.

I. BACKGROUND

  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 Page 2 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) ("LePage's II").

  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 Page 3 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.)

 II. LEGAL STANDARD

  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 The Page 4 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 follows:
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). Page 5 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).

 III. DISCUSSION

  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 Page 6 numerous common questions of law and fact are present in ...


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