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In Re Florida Cement and Concrete Antitrust Litigation

January 3, 2012


The opinion of the court was delivered by: Cecilia M. Altonaga United States District Judge



THIS CAUSE came before the Court on Direct Purchaser Plaintiffs' Corrected Motion for Class Certification ("Motion") [ECF No. 326], filed on October 4, 2011. Defendants, Cemex, Inc. ("Cemex"), Florida Rock Industries, Inc. ("Florida Rock"), VCNA Prestige Ready-Mix Florida ("Prestige"), Inc., and Tarmac America LLC ("Tarmac") (collectively, "Defendants, filed their Joint Opposition to the Motion ("Response") [ECF No. 346] on November 16, 2011; and Plaintiffs filed their Reply [ECF No. 360] on December 13, 2011. The Court has carefully considered the parties' written submissions, oral arguments presented on December 19, 2011, and applicable law.


This case concerns an alleged price-fixing conspiracy in the Florida concrete industry.*fn1

Specifically, Plaintiffs claim Defendants were involved in an unlawful conspiracy in violation of Section 1 of the Sherman Antitrust Act (the "Sherman Act"), 15 U.S.C. § 1, among vertically-integrated cement companies to fix, raise, stabilize, or maintain prices of, and allocate customers and markets for, ready-mix concrete ("Concrete")*fn2 in the State of Florida. (See Fourth Consolidated Am. Compl. ("Compl.") ¶ 1 [ECF No. 249]). Plaintiffs allege that as a result of this conspiracy, for a time Defendants charged supra-competitive, artificially inflated prices for Concrete throughout the State of Florida, thereby injuring Plaintiffs. (See id. ¶¶ 1, 6).

Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs seek to certify a class consisting of:

All persons or entities who purchased Ready Mix Concrete directly from one or more of the Defendants in the State of Florida at any time during the period from February 11, 2008 to October 29, 2009 or until such a time as Defendants' conspiracy no longer had common impact on direct purchasers of Ready Mix Concrete. Excluded from the Class are Defendants and their subsidiaries, parents, or affiliates, Defendants' co-conspirators, whether or not named as a Defendant in this Complaint, and government entities. (Mot. 8). Defendants oppose certification of this class on the ground that common issues do not predominate over individual issues. Specifically, Defendants contend that Plaintiffs have no methodology for proving their case on a class-wide basis and thus fail to satisfy the requirements of Rule 23(b)(3).


"The class action is 'an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'" Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700--01 (1979)). "Questions concerning class certification are left to the sound discretion of the district court." Cooper v. Southern Co., 390 F.3d 695, 711 (11th Cir. 2004), overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006) (citing Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1386 (11th Cir. 1998)). With this "great power comes great responsibility; the awesome power of a district court must be 'exercised within the framework of [Federal Rule of Civil Procedure] 23.'" Klay v. Humana, Inc., 382 F.3d 1241, 1251 (11th Cir. 2004) (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996)). Thus, to be entitled to class certification, the party seeking certification must have standing and must meet each of the requirements specified in Federal Rule of Civil Procedure 23(a), as well as the requirements of at least one subsection of Federal Rule of Civil Procedure 23(b). See id., 382 F.3d at 1250.

Rule 23(a) "ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate." Wal-Mart, 131 S. Ct. at 2550. Under Rule 23(a), the party seeking class certification has the burden of showing that the four requirements of numerosity, commonality, typicality, and adequacy of representation are satisfied. Rule 23(a) provides as follows:

One or more members of a class may sue on behalf of all only if (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 and 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.

FED. R. CIV. P. 23(a).

The class must also satisfy one of the three additional requirements of Rule 23(b). Plaintiffs assert a class is appropriate under Rule 23(b)(3). Rule 23(b)(3) provides that certification is available if the Court finds "that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." FED. R. CIV. P. 23(b)(3).

In examining whether the party seeking certification has satisfied the requirements of Rule 23, the Eleventh Circuit has counseled that "[a]lthough the trial court should not determine the merits of the plaintiffs' claim at the class certification stage, the trial court can and should consider the merits of the case to the degree necessary to determine whether the requirements of Rule 23 will be satisfied." Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1188 n.15 (11th Cir. 2003).

Indeed, the Supreme Court recently acknowledged that "'sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,' and that certification is proper only if 'the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.'" Wal-Mart, 131 S. Ct. at 2551 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982))(internal citations omitted). "Frequently that 'rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped." Id.


A. Rule 23(a)

As stated, Plaintiffs must first satisfy the four requirements of Rule 23(a): (1) Numerosity; (2) Commonality; (3) Typicality; and (4) Adequacy. The Court examines each requirement in turn.

1. Numerosity

With regard to the numerosity requirement, Plaintiffs must establish the class is so numerous that joinder of all members is impracticable. See FED. R. CIV. P. 23(a)(1). As a general rule, a group of more than 40 satisfies the numerosity requirement of Rule 23, a group of fewer than 21 does not, and the numbers in between are subject to judgment based on additional factors. See Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009) (citation omitted). "To meet this requirement, plaintiffs need not prove the exact size of the proposed class, but rather need demonstrate only that the number is exceedingly large, and joinder impracticable." In re Infant Formula Antitrust Litig., No. MDL 878, 1992 WL 503465, at *3 (N.D. Fla. Jan. 13, 1992) (citing Anderson v. Bank of the South, N.A., 118 F.R.D. 136, 145 (M.D. Fla. 1987)). Essentially, a plaintiff seeking to certify a class must make a showing with factual support that the numerosity will be satisfied. Vega, 564 F.3d at 1267.

In this action, the proposed class is to include thousands of Concrete purchasers throughout the State of Florida who purchased Concrete directly from Defendants. (See Mot. 3, 29). Plaintiffs maintain that because the class numbers in the thousands, and because members of the class are geographically dispersed, joinder is impracticable. (See Mot. 29). Defendants do not contest this assertion. Based on the foregoing, the Court finds Plaintiffs' proposed class satisfies the requirement of numerosity.

2. Commonality

The second requirement for maintaining a class action under Rule 23 is that "there are questions of law or fact common to the class." FED. R. CIV. P. 23(a)(2). Rule 23(a)(2) "'does not require that all the questions of law and fact raised by the dispute be common' . . . or that the common questions of law or fact 'predominate' over individual issues." Vega, 564 F.3d at 1268 (quoting Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir. 1986)). Rather, "[t]he commonality requirement demands only that there be 'questions of law or fact common to the class.'" Id. (quoting FED. R. CIV. P. 23(a)(2)). As the Supreme Court recently explained, "[c]ommonality requires the plaintiff to demonstrate that the class members have suffered the same injury." Wal-Mart, 131 S. Ct. at 2551 (internal quotations and citation omitted). In other words, their claims "must depend upon a common contention" that 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 2545.

In this case, Plaintiffs allege a price-fixing conspiracy - that beginning on February 11, 2008, Defendants, who together control more than 75% of Florida's Concrete industry, engaged in a conspiracy to fix, stabilize, and maintain prices of Concrete sold in Florida. In cases containing allegations of price-fixing, courts have consistently held that the nature of the antitrust conspiracy action compels a finding that common questions of fact and law exist. See, e.g., In re Infant Formula, 1992 WL 503465, at *4 ("By the very nature of a conspiracy antitrust action, common questions of fact and law exist."); In re Carbon Dioxide Antitrust Litig., 149 F.R.D. 229, 232 (M.D. Fla. 1993) (same); In re Dynamic Random Access Memory (DRAM) Antitrust Litig., No. M 02-1486-PJH, 2006 WL 1530166, at *3 (N.D. Cal. June 5, 2006) ("[T]he very nature of a conspiracy antitrust action compels a finding that common questions of law and fact exist.") (citations omitted).

Likewise, here, the Court finds common questions of law and fact are implicated. Many of the issues in the instant action involve the Defendants' alleged conspiracy and the manner in which it may have affected the purported class as a whole. For example, questions such as whether the Defendants conspired to fix the prices for Concrete, the identity of each member in the conspiracy, and the time period during which the conspiracy existed - which could involve review of numerous documents going back years and testimony of Defendants' principals - would be better handled in one trial rather than in many trials. As the court reasoned in In re Commercial Tissue Products, "[i]f each class member proceeded individually, each would have to prove the existence and impact of the identical conspiracy to fix prices. Obviously, individual actions designed to prove identical elements would completely destroy any notions of judicial economy." 183 F.R.D. 589, 593 (N.D. Fla. 1998) (internal quotation marks and citation omitted).

The Eleventh Circuit has explained that the commonality requirement is a "relatively light burden." Vega, 564 F.3d at 1268. Given that common questions of fact and law exist among proposed class members, the burden is met in this case, and the commonality prong of the Rule 23(a) analysis is satisfied. Whether ...

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