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In Re Florida Cement and Concrete Antitrust Litigation

January 3, 2012

IN RE FLORIDA CEMENT AND CONCRETE ANTITRUST LITIGATION


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

(INDIRECT PURCHASER ACTION)

ORDER

THIS CAUSE came before the Court on Indirect Purchaser Plaintiffs' Motion for Class Certification ("Motion") [ECF No. 197], filed on September 21, 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. 228] on November 16, 2011, and Plaintiffs filed their Reply [ECF No. 242-1] on December 13, 2011. The Court has carefully considered the parties' written submissions, oral arguments presented on December 19, 2011, and applicable law.

I. BACKGROUND

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

Specifically, Plaintiffs claim Defendants were involved in an unlawful conspiracy 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 Fifth Amended Consolidated Compl. ("Compl.") ¶¶ 1--8, 60 [ECF No. 146]). Plaintiffs allege that as a result of this conspiracy, Plaintiffs suffered economic loss as they were forced to pay artificially-inflated prices for Concrete throughout the State of Florida. (See id. ¶ 5). In their Complaint, Plaintiffs bring claims pursuant to Section 1 of the Sherman Act, 15 U.S.C. § 1, and under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Florida Statutes §§ 501.201, et seq.

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

All persons or entities who indirectly purchased Concrete from one or more of the Defendants or their co-conspirators in the State of Florida for their own use and not for re-sale at any time during the period from on or about February 11, 2008 to the present (the "Class Period"). Excluded from the Class are [sic] anyone who purchased structures, including completed homes, containing concrete, if those purchases did not specifically break out the cost of Concrete. Also excluded are Defendants and their subsidiaries, parents, or affiliates, and Defendants' co-conspirators, whether or not named as a Defendant in this Complaint. (Mot. 9). At the December 19 hearing, Plaintiffs clarified that this class only includes persons or entities who indirectly purchased Concrete using a "cost plus contract."*fn3 (See Tr. of Dec. 19, 2011 Hr'g ("Hr'g Tr.") 16:12--14 [ECF No. 255]). Defendants oppose certification of this class on several grounds.

II. LEGAL STANDARD

"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 Klay, 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 Rules 23(b)(2) and 23(b)(3). Rule 23(b)(2) provides that certification is appropriate where: "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." FED. R. CIV. P. 23(b)(2). Alternatively, 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.

III. ANALYSIS

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 ...


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