Another Court Holds Daubert Analysis Required When Critical To Class Certification

With a split among the Circuits, no authoritative decision from the Third Circuit, and certiorari already granted by the U.S. Supreme Court on the issue, another district court has concluded that a thorough Daubert analysis is appropriate and necessary at the class certification stage when the expert testimony at issue is critical to the determination of class certification. In re Chocolate Confectionary Antitrust Litig., 08-MDL-1935 (M.D. Pa. Dec. 7, 2012).

In re Chocolate Confectionary Antitrust Litigation is a multidistrict price-fixing antitrust case brought pursuant to Section 1 of the Sherman Act, 15 U.S.C. § 1, as well as various state antitrust and consumer protection statutes. In that case, the Direct Purchasers alleged that Defendants, multi national corporate entities who produce approximately 75 percent of America's chocolate confectionary products, conspired to implement three price increases on chocolate from 2002 through 2007. The Direct Purchasers sought to certify a class comprised of "All persons and entities who directly purchased single serving standard and King size chocolate candy for resale directly from Defendants between December 9, 2002 and December 20, 2007." Defendants argued that the diverse nature of the customer base made this matter unsuitable for class action disposition. According to Defendants, the complex mixture of promotional programs and customer-specific pricing negotiations made it impossible to determine the actual price paid for chocolate confectionary products with evidence common to the class.

Plaintiffs sought to prove predominance — that issues common to the proposed class members predominated over issues affecting individual class members, an element required for class certification under Federal Rule of Civil Procedure 23(b)(3) — through the use of expert testimony, which was based on econometric modeling and focused on the nature of the chocolate confectionary industry as purportedly conducive to price-fixing. Defendants moved in limine to exclude the expert opinion testimony, which testimony was critical to whether the plaintiffs could show that issues common to the proposed class members predominated over issues affecting individual class members.

The threshold question before the District Court was whether Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702 presented any barriers to the court's consideration of the plaintiffs' expert...