Richmond, VA, December 27, 2023 — Mr. Dee’s filed its opening brief today appealing the denial of certification of a manufacturer class in its lawsuit against Inmar Inc. alleging market and customer allocation and price-fixing of shipping fees related to coupon processing in violation of the Sherman Antitrust Act.
Mr. Dee’s proposed a class consisting of 5,280 specifically identified manufacturers. The district court rejected the class as “fail-safe.” In a fail-safe class, however, membership is contingent on liability, such that a potential member is excluded from the class if they lose on the merits. In re White, 64 F.4th 302, 303 (D.C. Cir. 2023). On appeal, Mr. Dee’s argued that the class it proposed does not fit this definition because membership is immutable and not contingent on liability or any other finding. Mr. Dee’s appropriately created the class list by including only manufacturers that will rely on the same common evidence—that is, damage calculations in Dr. Grace’s regression. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 669 n.14 (9th Cir. 2022) (“the court may redefine [an] overbroad class to include only those members who can rely on the same body of common evidence to establish the common issue”) (emphasis added).
Mr. Dee’s proposed an alternative class definition of manufacturers meeting certain minimum-purchase requirements. The district court rejected the definition as not “ascertainable,” even though Mr. Dee’s has identified all 3,219 class members based on objective criteria.
Finally, Mr. Dee’s proposed an alternative class defined as all manufacturer purchasers of shipping fees. Based on the observation of Plaintiffs’ expert that her regression could not observe harm to 2,533 class members because fluctuations in volume masked harm, the district court found that those class members were “uninjured” and that the presence of so many uninjured class members defeated a finding of predominance. The district court erred in deciding the persuasiveness of the evidence on the merits, and in rejecting common evidence of harm to those class members. The district court also erred in applying a per se rule against certification of a class with many uninjured class members. Olean, 31 F.4th at 669 & n.13 (rejecting “a per se rule that a class cannot be certified if it includes more than a de minimis number of uninjured class members” as “inconsistent with Rule 23(b)(3)”).
Inmar’s motion for summary judgment was previously denied. While the court denied certification of a retailer class, the court certified a small class of retailer purchasers.
The case is Mr. Dee’s Inc. v. Inmar, Inc., No. 1:19-cv-141-WO-LPA (M.D.N.C.), No. 23-2165 (4th Cir.).
