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In re Pressure Sensitive Labelstock Antitrust Litigation

November 19, 2007

IN RE: PRESSURE SENSITIVE LABELSTOCK ANTITRUST LITIGATION


The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge

MDL Docket No. 1556

(All Cases)

JUDGE VANASKIE

MEMORANDUM

This matter is before the Court on Plaintiffs' Motion for Class Certification and Appointment of Class Counsel pursuant to Federal Rule of Civil Procedure 23. (Dkt. Entry 244.) This case arises from alleged violations of federal antitrust law. Plaintiffs and putative class representatives -- Scranton Label, Inc., Bertek Systems, Inc., McCarty Printing Corporation, Glenroy, Inc., and Pamco Tape & Label, Inc. -- claim Defendants conspired to restrain trade in the sale and distribution of self-adhesive labelstock, also known as pressure sensitive labelstock ("PSL"), in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1337(a), and 15 U.S.C. § 15(a).

Plaintiffs are in the business of processing and converting PSL for sale to their customers. Plaintiffs allege Defendants Avery Dennison Corporation ("Avery"); Bemis Company, Inc. ("Bemis"); Bemis's wholly-owned subsidiary, Morgan Adhesives Company ("MACtac"); UPM-Kymmene Corporation ("UPM"); and UPM's wholly-own subsidiary, Raflatac, Inc. ("Raflatac"), PSL producers, "conspired [from as early as January 1, 1996, to as late as July 25, 2003] to fix, raise, maintain or stabilize prices for self-adhesive labelstock . . . and to allocate and restrict output in the market for self-adhesive labelstock sold in the United States." (Second Am. & Consol. Class Action Compl. ("Second Am. Compl."), Dkt. Entry 190, ¶ 1.) As a consequence of Defendants' allegedly unlawful behavior, Plaintiffs claim they purchased PSL at prices higher than would otherwise have prevailed in a competitive market. They have instituted this action under Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26, to recover treble damages and costs of the suit, including reasonable attorneys' fees.

Plaintiffs seek certification of the following class:

All persons (excluding governmental entities, Defendants, co-conspirators, other producers of self-adhesive labelstock, and the present and former parents, predecessors, subsidiaries and affiliates of the foregoing) who purchased self-adhesive labelstock in the United States directly from any of the Defendants, or any present or former parent, subsidiary or affiliate thereof, at any time during the period from January 1, 1996 to July 25, 2003. (Pls.' Mot. Class Certification & Appointment of Class Counsel, Dkt. Entry 244, at 1-2.) Plaintiffs also request this Court appoint as Class Counsel the following firms: Trujillo Rodriguez & Richards, L.L.C.; Lockridge Grindal Nauen, P.L.L.P.; Cohen Milstein Hausfeld & Toll, P.L.L.C.; and Keating Muething & Klekamp., P.L.L. (Id. at 2.) Finally, Plaintiffs ask the Court to continue the appointment of O'Malley & Langan, P.C., as Liaison Counsel for the Plaintiff Class. (Id.)

Having carefully considered the parties' extensive briefs, expert reports, exhibits, and oral argument presentations, the Court finds that Plaintiffs have satisfied the requirements for class certification under Rule 23(a) and (b)(3). Accordingly, with a slight modification to the definition of the Plaintiff class, the Court will grant the class certification motion. In addition, the Court will appoint Class Counsel and continue the appointment of Liaison Counsel as requested by Plaintiffs.

I. BACKGROUND

A. Factual Background

PSL, or self-adhesive labelstock, is used to create labels for numerous products and uses. (Second Am. Compl. ¶¶ 33.) PSL products are pre-coated with an adhesive that is activated by pressure and adheres to a surface by "press-on contact." (Id. ¶ 32.) Labels produced with PSL serve myriad functions, including price labels, product information labels, promotional labels, and product monitoring labels. (Id. ¶ 33.) PSL products are utilized by a variety of industries, including food and beverage, consumer goods, health and beauty, and pharmaceuticals. (Id.)

PSL consists of four components: the face material, adhesive, release layer, and base material. (Id. ¶ 36.) The face material is made from paper, film, foil, or fabric, and is where the information is printed. (Id.) The adhesive, which is permanent or removable, affixes the label to the desired surface. (Id.) The release layer, generally made of silicon, allows the simple release of the face material from the base material. (Id.) Lastly, the base material guards the adhesive from premature contact with unintended surfaces. (Id.)

PSL is manufactured on coating lines. The silicone release layer and then the adhesive are applied to the base material. (Aff. of John C. Beyer ("Beyer Aff."), Dkt. Entry 247-30, ¶ 14.) The base material, in turn, is laminated to the face material. (Id.) Once produced, the PSL is sold in rolls or sheets primarily to label converters, printers, paper merchants, or distributors. (Id. ¶¶ 14, 16.) These businesses process PSL into finished labels according to the requirements or specifications of their customers, the end users. (Id. ¶ 16.)

According to the Tag and Label Manufacturers Institute, Inc. ("TLMI"), the industry trade association, there are fifteen product categories of PSL, which are grouped together based upon the nature of the face material: paper, film, foil, or piggyback. (Id. ¶ 17.) Most PSL is paper-based: in 1996, 85.3% of PSL was paper-based, while in 2003 that figure decreased slightly, to 80.1%. (Beyer Aff. (Table 1).) Film-based PSL accounted for 12.8% and 18.2%, respectively, of shipments in 1996 and 2003. (Id.)

Paper-based and film-based PSL are converted into prime labels or variable information printing ("VIP") labels. (Second Am. Compl. ¶ 35.) Prime labels are used for promotions and product identification. (Id.) The information is printed thereon by the converters and is not altered by the end user. VIP labels, by contrast, are sold blank or partially blank, and the information is printed by the end user when the label is applied. (Id.) Supermarket deli counter labels are a familiar example of VIP labels.

Defendants are major producers of PSL in the United States, and one or more Defendants sell or distribute PSL in every state except the District of Columbia and Wyoming. (Beyer Aff. (Table 6).) In 2003, Avery, MACtac, and Raflatac had an aggregate share of the PSL market of approximately 78%; in 2002, these Defendants controlled 63% of North American industry capacity and accounted for 67.2% of the PSL sold in North America. (Beyer Aff. (Tables 4 & 5).)

Avery is the largest producer of PSL. In 2003, Avery had PSL sales of $957.2 million, constituting approximately 54% of the PSL sold in the United States. (Beyer Aff. ¶¶ 32-33.)

MACtac, Bemis's wholly-owned subsidiary, had PSL sales in 2003 of $194.9 million, constituting 13% of the United States market. (Id.) Raflatac sold $147 million of PSL in 2003, representing approximately 12% of the United States market. (Id.)

Raflatac's parent, UPM, is a Finnish holding company active in the forestry products industry. (Second Am. Compl. ¶ 18.) UPM is also a major supplier of paper used to manufacture PSL. (Id.) Throughout the class period, UPM supplied paper to Avery, and this supply arrangement is a critical element of Plaintiffs' antitrust claims.

Plaintiffs allege Defendants conspired to fix the prices of and allocate the market for PSL. Plaintiffs' Second Amended Complaint relates the following: In the early 1990s, Avery competed with Raflatac in the European PSL market. (Second Am. Compl. ¶ 47.) Raflatac seized a large market share from Avery by introducing low-priced PSL products. (Id.) Avery feared UPM and Raflatac would repeat this conduct in the United States. Thus, in 1996, Avery sought to dissuade Raflatac's entry into the United States market by purchasing paperstock from UPM. (Id. ¶ 48.) Avery's objective was to "[b]uy enough product to make [UPM] think twice about building coaters in the US." (Ex. 3 to Bruckner Decl., Dkt. Entry 247-4, at 2.) Avery and UPM purportedly reached an understanding that included UPM agreeing to sign a non-disclosure agreement to "foste[r] a 'global partnership' between [Avery] and [UPM]." (Ex. 4 to Bruckner Decl., Dkt. Entry 247-5, at 2.) Plaintiffs allege that as early as 1996 Avery agreed to purchase large quantities of paperstock from UPM in consideration for UPM's promise to refrain from competing in the United States PSL market. (Second Am. Compl. ¶ 48.)

Plaintiffs allege MACtac, who also perceived Raflatac as a threat, was aware of the Avery-UPM agreement. (Id. ¶ 49; see Ex. 5 to Bruckner Decl., Dkt. Entry 247-6, at 15 (internal MACtac planning document noting, in its assessment of Raflatac, that "Avery has deal to buy paper if [UPM/Raflatac] will stay out of U.S. market").) Plaintiffs further contend that Avery and MACtac had their own arrangement to limit competition among themselves in the PSL market. (Second Am. Compl. ¶¶ 44-45.) In this regard, Plaintiffs allege MACtac instructed its sales personnel not to target Avery's customers and admonished its personnel not to quote prices below Avery's. (See Exs. 8-10 to Bruckner Decl., Dkt. Entries 247-9 to 247-11.) Plaintiffs assert that the decision to refrain from competition was contrary to Defendants' economic interest because there was excess manufacturing capacity at the time. (Second Am. Compl. ¶ 45.)

Despite its alleged agreement with Avery to refrain from competing in the United States market, Plaintiffs allege Raflatac was attracted by the North American profit margins, albeit, as Plaintiffs contend, supra-competitively set by Defendants' anticompetitive behavior. (Id. ¶ 51.) Initially, UPM, through Raflatac, sought to gain market share by acquiring another producer. (Id. ¶ 50.) UPM approached Bemis about acquiring MACtac; Bemis, however, rejected UPM's overture. (Id.) Since UPM could not acquire market share, it decided to construct a Raflatac facility in North Carolina, which opened in 2001. (Id. ¶ 52.) UPM's intent was to avoid targeting Avery's customers, but instead to compete aggressively for other manufacturers' business. (Id.; see also Ex. 12 to Bruckner Decl., Dkt. Entry 247-13, at 2.) Nevertheless, Raflatac's expansion caused an across-the-board decline in PSL prices. (Second Am. Compl. ¶ 56.) Plaintiffs claim that, had Raflatac entered the United States market earlier, PSL purchasers would have enjoyed lower prices sooner.

Meanwhile, Plaintiffs allege Avery and MACtac sought to stabilize PSL prices in anticipation of Raflatac's expansion. At the TLMI meeting in October of 2002, a MACtac employee reported that Avery and MACtac discussed Raflatac's entry and the need for uniform price increases. (Id. ¶ 54.) At that time, MACtac was considering price increases, including surcharges, but was hesitant due to fear it would lose business if its competitors declined to follow its initiative. (Id. ¶ 55.) Following the TLMI meeting, however, MACtac increased prices by implementing a freight surcharge, an increase for solvent adhesive constructions, and a currency exchange surcharge for Canadian orders. (Id.) Avery and other competitors soon increased their prices. (Id.; Ex. 18 to Bruckner Decl., Dkt. Entry 247-19, at 2.)

After Raflatac's 2001 United States expansion and consequent lower PSL prices, Plaintiffs allege Avery and Raflatac accused one another of lowering prices. Avery threatened to reduce significantly its paperstock purchases from UPM "'due to lack of trust between UPM and Avery and UPM/Raflatac's active market penetration.'" (Second Am. Compl. ¶ 56 (quoting Ex. 20 to Bruckner Decl., Dkt. Entry 247-21, at 2).) To appease Avery, Plaintiffs allege Raflatac "reinstructed" its sale force on price discipline, and agreed with Avery to limit price competition. (Second Am. Compl. ¶¶ 57-58, 60.) Plaintiffs contend Bemis and MACtac knew of this agreement. (Id. ¶ 62.)

Plaintiff's allege that, in addition to appeasing Avery's demands regarding price competition, Raflatac devised a plan to acquire market share without competition: Raflatac would try again to acquire MACtac from Bemis. (Id. ¶ 58.) According to Plaintiffs, this acquisition would achieve three objectives: "(1) secure [UPM]'s goal of a 20% market share, (2) control and neutralize MACtac's excess capacity, and (3) avoid head to head competition between [UPM] and Avery." (Id. ¶ 59.) Although Bemis had rejected UPM's initial offer, it agreed this time to sell MACtac in order to "prevent a pricing 'blood bath,'" and to avoid "long term damage to pricing in [the] North American market." (Id. ¶ 62; Ex. 21 to Bruckner Decl., Dkt. Entry 247-22, at 2.) MACtac's CEO indicated the transaction would "discipline" UPM's pricing of PSL, a statement Plaintiffs contend is nonsensical "unless Bemis and MACtac knew of [UPM]'s collusive agreement with Avery to exercise price discipline." (Second Am. Compl. ¶ 62.)

The proposed acquisition was announced in August, 2002.*fn1 (Id. ¶ 63.) In December, 2002, the United States Department of Justice requested additional information from Bemis regarding the pending sale of MACtac. (Id. ¶ 64.) On April 15, 2003, the Justice Department filed a complaint in the United States District Court for the Northern District of Illinois to enjoin the pending acquisition (the "DOJ Merger Litigation"). (Id. ¶ 66.) The Justice Department concluded the acquisition would result in higher prices. (Id. ¶ 65.) In this regard, the Justice Department's investigation revealed that competitors in the PSL industry "'have sought to coordinate rather than compete,'" and the acquisition would increase the probability that UPM and other competitors would collude on prices. (Id. ¶ 66.) On July 25, 2003, the district court enjoined the acquisition, reasoning it would stifle competition and harm consumers.*fn2 See United States v. UPM-Kymmene Oyj, No. 03 C 2528, 2003 WL 21781902 (N.D. Ill. July 25, 2003).

B. Procedural History

In the wake of the DOJ Merger Litigation, nine civil actions were filed in four federal judicial districts -- including one action in this Court -- by PSL purchasers alleging Defendants conspired to violate federal antitrust law. On November 5, 2003, the Judicial Panel on Multidistrict Litigation transferred to this Court the actions pending outside of this district for consolidated pretrial proceedings. In re Pressure Sensitive Labelstock Antitrust Litig., 290 F. Supp. 2d 1374, 1376 (J.P.M.L. 2003).

On February 16, 2004, Plaintiffs filed an Amended and Consolidated Class Action Complaint alleging Defendants conspired from as early as January 1, 1999, to fix, raise, maintain, or stabilize prices for PSL sold in the United States. (Dkt. Entry 46, ¶ 1.) Plaintiffs also alleged that Defendants fraudulently concealed the conspiracy. (Id. ¶¶ 69-71.) Defendants Bemis and MACtac moved to dismiss the amended complaint. The motion was denied by Memorandum and Order dated February 15, 2005. See In re Pressure Sensitive

Labelstock Antitrust Litig., 356 F. Supp. 2d 484, 495 (M.D. Pa. 2005).

The parties then engaged in discovery limited to class certification issues. During the course of discovery, Plaintiffs uncovered evidence of what they allege broadened the conspiracy to encompass market allocation and supply restriction, and that this conduct began as early as January 1, 1996. Plaintiffs subsequently moved to file the Second Amended and Consolidated Class Action Complaint. (Dkt. Entry 149.) On January 3, 2006, the Court granted Plaintiffs' motion. See In re Pressure Sensitive Labelstock Antitrust Litig., MDL No. 1556, No. 3:03-MDL-1556, 2006 WL 433891 (M.D. Pa. Jan. 3, 2006).

On August 14, 2006, Plaintiffs moved for class certification and appointment of class counsel. (Dkt. Entry 244.) Additionally, Plaintiffs filed a Declaration of Ira Neil Richards, (Dkt. Entry 245); a Memorandum of Law in Support of Motion for Class Certification, (Dkt. Entry 246); supporting exhibits, (Dkt. Entries 247 to 247-29); and an affidavit from their economics expert, Dr. John C. Beyer. (Dkt. Entries 247-30 & 247-31.) Defendants filed a Memorandum of Law in Opposition to Motion for Class Certification, (Dkt. Entry 254); exhibits, (Dkt. Entries 256, 254-2 to 254-12); and an affidavit from their economics expert, Dr. Andrew S. Joskow. (Dkt. Entry 255.) On December 4, 2006, Plaintiffs filed a Reply Memorandum of Law in Support of Motion for Class Certification, (Dkt. Entry 264); exhibits, (Dkt. Entries 265 to 265-34); and a reply affidavit from Dr. Beyer. (Dkt. Entry 263.) Pursuant to this Court's Order of December 15, 2006, (Dkt. Entry 272), Defendants filed a Sur-rebuttal Memorandum of Law in Opposition to Motion for Class Certification, (Dkt. Entry 275); exhibits, (Dkt. Entry 276); and a surrebuttal affidavit from Dr. Joskow. (Dkt. Entry 277.) Pursuant to the same Order, Plaintiffs filed a Memorandum of Law in Response to Defendants' Sur-rebuttal to Plaintiffs' Motion for Class Certification, (Dkt. Entry 282); exhibits, (Dkt. Entries 282-2 to 282-6); and the third affidavit of Dr. Beyer. (Dkt. Entry 282-7.) Oral argument was conducted on March 1, 2007.*fn3

II. DISCUSSION

A. Standard for Class Certification

The Federal Rules of Civil Procedure allow for the prosecution of claims as a class action provided the following prerequisites are satisfied:

(1) the class is so numerous that joinder of all members is impracticable [("numerosity")], (2) there are questions of law or fact common to the class [("commonality")], (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [("typicality")], and (4) the representative parties will fairly and adequately protect the interests of the class [("adequacy of representation")].

Fed. R. Civ. P. 23(a); In re Mercedes-Benz Antitrust Litig., 213 F.R.D. 180, 183 (D.N.J. 2003). In addition to satisfying the Rule 23(a) prerequisites, an action may be maintained as a class action only if it falls within one of the three types of class actions authorized by Rule 23(b).

Plaintiffs seek to maintain a class action under Rule 23(b)(3), which provides:

An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition . . .

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

Fed. R. Civ. P. 23(b)(3).

Plaintiffs, as the moving parties, have the burden to show that the Rule 23(a) and (b)(3) requirements are met. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997). Although only the predominance requirement of Rule 23(b)(3) is disputed by the parties, the Court must independently find satisfaction of the Rule 23(a) and (b)(3) requirements.

The Court may certify a class action only if it "is satisfied, after a rigorous analysis, that the [requirements of Rule 23] have been satisfied." Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982). The Court in Falcon observed that a class certification motion "'generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.'" Id. at 160 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978)). Furthermore, "sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." Id.

The Third Circuit's approach to class certification is consistent with Falcon. "'Before deciding whether to allow a case to proceed as a class action, . . . [courts] should make whatever factual and legal inquiries are necessary under Rule 23.'" Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 166 (3d Cir. 2001) (quoting Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001)). "[A] preliminary inquiry into the merits is sometimes necessary to determine whether the alleged claims can be properly resolved as a class action." Id. at 168. This rigorous analysis, however, does not require -- or authorize -- the Court to credit Plaintiffs' evidence over Defendants' or vice versa. "[A]t the class certification stage, 'the Court need not concern itself with whether Plaintiffs can prove their allegations . . .; the Court need only assure itself that Plaintiffs' attempt to prove their allegations will predominantly involve common issues of fact and law.'" In re Linerboard Antitrust Litig., 305 F.3d 145, 152 (3d Cir. 2002) (quoting Lumco Indus., Inc. v. Jeld-Wen, Inc., 171 F.R.D. 168, 173-74 (E.D. Pa. 1997)). Indeed, our Court of Appeals has held that the "'interests of justice require that in a doubtful case . . . any error, if there is to be one, should be committed in favor of allowing the class action.'" Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir. 1985) (quoting Kahan v. Rosenstiel, 424 F.2d 161, 169 (3d Cir. 1970)).

Plaintiffs and Defendants both offer expert affidavits from their respective economists, and Defendants challenge vehemently the analysis of Plaintiffs' economist, Dr. Beyer. "To the extent that [class certification] involves a battle of experts, it [is] not appropriate for the Court to determine which expert is more credible at this time." In re Linerboard Antitrust Litig., 203 F.R.D. 197, 217 n.13 (E.D. Pa. 2001). To be sure, however, a court will not "grant class certification on fanciful or improbable suppositions." In re Mercedes-Benz, 213 F.R.D. at 190. That is, the Court will consider each opinion of the experts, unless it is shown that the "'opinion is the kind of "junk science" that a Daubert inquiry at this preliminary stage ought to screen.'" In re Linerboard, 203 F.R.D. at 217 n.13 (quoting In re Visa Check/Mastermoney Antitrust Litig., 192 F.R.D. 68, 78 (E.D.N.Y. 2000)).

Defendants argue that this Court must resolve factual disputes pertinent to class certification, particularly factual issues that concern the requirement that questions of law or fact common to class members predominate over questions affecting only individual class members. This argument is directed at Dr. Beyer, as Defendants dispute the factual basis of Dr. Beyer's economic analysis. In this regard, Defendants rely heavily on the analysis presented in In re Initial Public Offering Securities Litigation, 471 F.3d 24 (2d Cir. 2006).

In In re Initial Public Offering, the district court certified a class action in a securities fraud case where the plaintiff-investors alleged a scheme to defraud in connection with the issuance of securities in the initial public offering market. On appeal, the Second Circuit clarified its standards for class certification. Among other things, the court stated: "determinations [regarding the Rule 23 requirements] can be made only if the judge resolves factual disputes relevant to each Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requirement have been established." Id. at 41. The court added, "the obligation to make such determinations is not lessened by overlap between a Rule 23 requirement and a merits issue." Id. Applying these standards, the Second Circuit reversed the district court's decision.

In a securities fraud case, a plaintiff must show, among other things, he or she relied on the misrepresentation. Reliance is generally an individual question that will defeat class certification unless plaintiffs show the applicability of the presumption of reliance, known as the "fraud-on-the-market doctrine." Id. at 42 (citing Basic Inc. v. Levinson, 485 U.S. 224, 245-47 (1988)). For the presumption to apply, the plaintiffs must show that the securities at issue traded in an efficient market. The Second Circuit observed that, as a general rule, the market for an initial public offering is not efficient. Id. Concluding that "the Plaintiffs' own allegations and evidence demonstrate that an efficient market cannot be established in this case," the Second Circuit held that the predominance requirement could not be met. Id.

In this matter, Defendants dispute the factual basis of Dr. Beyer's economic analysis of the PSL industry and contend, citing In re Initial Public Offering, that this Court must resolve these factual disputes. The Court disagrees. First, to the extent In re Initial Public Offering can be read to require resolution of disputes of fact where the dispute concerns a merits issue, this Court is bound to follow Third Circuit precedent. See In re Hydrogen Peroxide Antitrust Litig., 240 F.R.D. 163, 170 n.6 (E.D. Pa. 2007) (suggesting In re Initial Public Offering imposes a higher burden than that applied by the Third Circuit in In re Linerboard). Second, this Court is not convinced that In re Initial Public Offering approves the fact finding envisioned by Defendants. In this regard, the court in In re Initial Public Offering sought to align the Second Circuit with other circuits, and quoted approvingly the Third Circuit's decision in Newton. See In re Initial Public Offering, 471 F.3d at 38 (quoting Newton, 259 F.3d at 166). While Newton allows an inquiry into the factual and legal issues of the plaintiffs' cause of action, it does not authorize the mini-trial that would result were this Court to embrace Defendants' position. Finally, Defendants fail to cite a single case in the antitrust context where the court resolved factual disputes regarding an expert's economic analysis of a particular industry. Moreover, their contention runs contrary to Third Circuit precedent. For example, in In re Linerboard, the Third Circuit reviewed Dr. Beyer's economic analysis that was premised on the characteristics of the linerboard and corrugated box industry. Significantly, the court did not determine whether Dr. Beyer's conclusions were correct. See In re Linerboard, 305 F.3d at 153-54. Instead, the court simply "'assure[d] itself that Plaintiffs' attempt to prove their allegations will predominantly involve common issues of fact and law.'" Id. at 152 (quoting Lumco Indus., 171 F.R.D. at 174); see also In re Linerboard, 203 F.R.D. at 220 (declining to resolve defendants' challenge to Dr. Beyer's economic analysis, and instead determining whether the plaintiffs' allegations involve generalized proof common to all class members).

Recent district court decisions in the antitrust context continue to subscribe to the view that "it is not necessary at the class certification stage for the Plaintiffs to establish the merits of their case." Behrend v. Comcast Corp., Civ. A. No. 03-6604, 2007 WL 1300725, at *17 (E.D. Pa. May 2, 2007). Accord In re OSB Antitrust Litig., No. 06-826, 2007 WL 2253418, at *6 (E.D. Pa. Aug. 3, 2007) ("I may reject Dr. Beyer's analysis only if it has no probative value . . . ."); In re Polyester Staple Antitrust Litig., MDL No. 3:03CV1516, 2007 WL 2111380, at *13 (W.D.N.C. July 19, 2007) ("The likelihood of the plaintiffs' success on the merits . . . is not relevant to the issue of whether certification is proper." (internal quotations omitted)); In re Foundry Resins Antitrust Litig., 242 F.R.D. 393, 410 (S.D. Ohio 2007) ("For purposes of class certification, this Court need not entertain Defendants' arguments that essentially question whether [Dr. Beyer] is correct in his assessment of these market characteristics . . . . Rather, this is for the trier of fact to ...


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