United States District Court, E.D. Wisconsin
FOND DU LAC BUMPER EXCHANGE, INC., on Behalf of itself and others similarly situated, Plaintiff,
JUI LI ENTERPRISE COMPANY, LTD., et al., Defendants. DZIDRA FULLER, et al., Plaintiffs,
JUI LI ENTERPRISE COMPANY, LTD., et al., Defendants. FIREMAN’S FUND INSURANCE, CO., on Behalf of itself and others similarly situated, Plaintiff,
JUI LI ENTERPRISE COMPANY, LTD., et al., Defendants. NATIONAL TRUCKING FINANCIAL RECLAMATION SERVICES LLC, on behalf of itself and others similarly situated, Plaintiff,
JUI LI ENTERPRISE COMPANY, LTD., et al., Defendants.
DECISION AND ORDER
ADELMAN District Judge.
an antitrust case under The Sherman Act, 15 U.S.C. § 1.
Before me now is a motion for class certification, numerous
motions to seal, and several miscellaneous motions.
are manufacturers of aftermarket automotive sheet metal
parts. Cars require replacement parts as they age.
Replacement parts can be either original equipment
manufacturer parts (“OEM” parts), which are often
distributed through the auto manufacturers’ own service
channels (like dealerships) and sold under their brand names,
or aftermarket parts, which have the same specifications as
OEM parts but are usually not manufactured by OEMs or sold
with the auto manufacturers’ certification. The
aftermarket sheet metal parts at issue in this litigation
include hoods, doors, fenders, bonnets, floor panels, trunk
assemblies, tailgates, roof panels, and reinforcement parts.
Plaintiffs allege that defendants conspired to fix, raise,
maintain, and stabilize the prices of aftermarket sheet metal
parts in violation of The Sherman Act.
propose two classes: direct purchaser plaintiffs
(“DPPs”) and indirect purchaser plaintiffs
(“IPPs”). The DPPs filed the class certification
motion at issue. They wish to certify the following class:
All persons and entities in the United States, and its
territories and possessions, that purchased AM Sheet Metal
Parts directly from a Defendant between at least as early as
January 1, 2003, and September 4, 2009 (“the Class
Period.”). Excluded from the Class are any judicial
officer who is assigned to hear any aspect of this action,
governmental entities, Defendants, co-conspirators, and the
present and former parents, predecessors, subsidiaries and
affiliates of the foregoing.
Supp. of DPPs’ Mot. for Class Certification at 6 (ECF
No. 711). The named DPPs are Fond du Lac Bumper
Exchange Inc. (“Fond du Lac Bumper”) and Roberts
Wholesale Body Parts Inc. (“Roberts”), two
wholesale auto part distributors who directly purchased from
at least one named defendant during the class period.
Originally, defendants included Jui Li Enterprise Company
Ltd., Tong Yang Industry Co. Ltd., Taiwan Kai Yih Industrial
Co. Ltd. (“TKY”), Gordon Auto Body Parts, Auto
Parts Industrial Ltd., Cornerstone Auto Parts LLC, and
several subsidiary companies affiliated with these main
defendants. However, DPPs reached a class-wide settlement
with Tong Yang, TKY, and Gordon, which I approved on August
13, 2015. Thus, the only defendants remaining are
Auto Parts Industrial and Cornerstone, which are represented
by the same counsel and which I understand are affiliated,
and Jui Li. The remaining defendants oppose class
address defendants’ evidentiary objections to certain
documents which DPPs rely on to support their motion for
class certification. Defendants object to DPPs use of
documents produced by the settling defendants, arguing that
they are hearsay and have not been properly authenticated as
business records. See Fed. R. Evid. 803(6).
Defendants also object to documents used by DPPs’
expert, documents not directly related to the alleged
conspiracy, and 17 specific documents submitted by DPPs.
cite no authority in support of their claim that evidence
submitted in support of class certification must first be
found admissible under the Federal Rules of Evidence. The
cases that defendants cite deal with the admissibility of
evidence at trial, see, e.g., United States v.
Gomez, 763 F.3d 845 (7th Cir. 2014); Wheeler v.
Sims, 951 F.2d 796 (7th Cir. 1992); Datamatic
Servs., Inc. v. United States, 909 F.2d 1029 (7th Cir.
1990); Rambus, Inc. v. Infineon Techs. AG, 348
F.Supp.2d 698 (E.D. Va. 2004); in a bankruptcy proceeding,
see, e.g., Matter of James Wilson Assocs.,
965 F.2d 160 (7th Cir. 1992); or at summary judgment,
see, e.g., Eisenstadt v. Centel Corp., 113
F.3d 738 (7th Cir. 1997); Matthews v. Waukesha Cty.,
937 F.Supp.2d 975 (E.D. Wis. 2013). Seventh Circuit case law
does not require that authenticity and admissibility be
established prior to class certification. See, e.g.,
Blihovde v. St. Croix Cty., 219 F.R.D. 607, 618
(W.D. Wis. 2003); Perkins v. Dart, No. 12-cv-00577,
2014 WL 866166, at *2 (N.D. Ill. Mar. 5, 2014); Coan v.
Nightingale Home Healthcare, Inc., No.
1:05-CV-0101-DFH-TAB, 2005 WL 1799454, at *1 n.1 (S.D. Ind.
June 29, 2005); Dicker v. Allstate Life Ins. Co.,
No. 89 C 4982, 1990 WL 106550, at *6 (N.D. Ill. July 12,
1990). Class certification must be considered “[a]t an
early practicable time, ” Fed.R.Civ.P. 23(c)(1)(A),
making objections based on admissibility and authenticity
premature. See Dicker, 1990 WL 106550, at *6. The
questions of authenticity and admissibility raised by
defendants are pertinent to the merits of DPPs’ claims,
not the Rule 23 analysis. Perkins, 2014 WL 866166,
DPPs have not yet conducted discovery on admissibility and
authenticity issues. Defendants, themselves, argued that I
should not permit DPPs to conduct such discovery until after
class certification because it would be
“premature.” See, e.g., May 2015 Status
Conference Statement at 16 (ECF No. 688)
(“[S]tipulations as to authenticity and admissibility
of documents will not be utilized until the trial on the
merits of this matter. . . . Therefore, the exercise remains
premature and should take place closer to trial.”);
April 2015 Status Conference Statement at 3 (ECF No. 617)
(same); September 2015 Status Conference Statement at 6 (ECF
No. 767) (refusing to discuss admissibility issues
“before it has had an opportunity to oppose class
certification”). Thus, at this preliminary stage, I
will not require DPPs to establish the admissibility and
authenticity of documents supporting class certification.
See Coan, 2005 WL 1799454, at *1 n.1 (Hamilton, J.)
(“At this preliminary stage and for these preliminary
[class certification] purposes, plaintiffs need not come
forward with evidence in a form admissible at trial.”).
I were to consider defendants’ evidentiary objections,
they are too vague and conclusory to merit much discussion.
For example, defendants assert that the declarations from
settling defendants establishing authenticity and
admissibility filed by DPPs are inadequate as “blanket
assertion[s], ” but they cite no supporting authority.
See Defs. Jui Li Enter. Co. Ltd., Auto Parts Indus.
Ltd., and Cornerstone Auto Parts, LLC’s Objs. to
DPPs’ Evid. in Supp. of Mot. for Class Certification at
2 (ECF No. 880). And in objecting to the 17 documents,
defendants merely recite a laundry list of objections without
any argument or explanation as to how they apply to the
specific document at issue. See Id. at 3–11.
The objections fail for this reason as well. See Davis v.
Carter, 452 F.3d 686, 691–92 (7th Cir. 2006)
(stating that perfunctory and undeveloped arguments not
supported by pertinent authority are waived).
to class certification, Fed.R.Civ.P. 23(a) requires DPPs to
show that (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 or 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. DPPs must
also show that the litigation falls into one of the
categories listed in Rule 23(b), and they argue that, under
Rule 23(b)(3), it is a suit in which (1) questions of law or
fact common to the class predominate over questions affecting
only individual members, and (2) a class action is superior
to other available methods for adjudicating the controversy.
DPPs’ settlement with the Tong Yang, TKY, and Gordon
defendants, 468 settlement class members filed claims, and
the class DPPs seek to certify will include roughly the same
number of members. This is sufficiently numerous to render
joinder of all class members impracticable. See,
e.g., Hubler Chevrolet, Inc. v. Gen. Motors
Corp., 193 F.R.D 574, 577 (S.D. Ind. 2000) (concluding
that joinder of over 200 plaintiffs would be impracticable)
Scholes v. Stone, McGuire & Benjamin, 143 F.R.D.
181, 183–84 (N.D. Ill. 1992) (concluding that joinder
of an estimated 120 to 300 plaintiffs would be
impracticable). Thus, DPPs satisfy the numerosity
Typicality and Adequacy of Representation
must also establish typicality and adequacy of
representation, which often overlap. Typicality requires a
showing that the “claims or defenses of the
representative parties are typical of the claims or defenses
of the class.” Fed.R.Civ.P. 23(a)(3). “A claim is
typical if it arises from the same event or course of conduct
that gives rise to the claims of the other class members and
her claims are based on the same legal theory.”
Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir.
2006) (internal quotations and citation omitted).
Establishing typicality “simply requires a showing . .
. that others suffer from similar grievances.”
Eggleston v. Chi. Journeymen Plumbers’ Local Union
No. 130, U.A., 657 F.2d 890, 896 (7th Cir. 1981). Some
variation in the claims is acceptable as long “the
named plaintiff’s claim and the class claims [are] so
interrelated that the interests of the class members will be
fairly and adequately protected in their absence.”
Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147,
157 n.13 (1982); see also Oshana, 472 F.3d at 514
(“[S]ome factual variations may not defeat
typicality.”); In re Ready-Mix Concrete Antitrust
Litig., 261 F.R.D. 154, 168 (S.D. Ind. 2009)
(“[T]he representatives’ claims need not be
identical to the class members; rather, it is sufficient if
they are substantially similar.”).
related to typicality is Rule 23(a)’s requirement that
“the representative parties will fairly and adequately
protect the interests of the class.” In connection with
this requirement, I consider whether the putative class
representatives (1) have antagonistic or conflicting claims
with other class members, (2) have a sufficient interest in
the outcome of the case to ensure vigorous advocacy, and (3)
have competent, qualified, and experienced counsel capable of
vigorously litigating the suit. Herkert v. MRC
Receivables Corp., 254 F.R.D. 344, 350–51 (N.D.
Ill. 2008). The purpose of the typicality and adequacy of
representation requirements is to ensure that the class
representative’s interests are aligned with the
class’s interests “‘so that the [class
representative] will work to benefit the entire class through
pursuit of their own goals.’” Ready-Mix
Concrete, 261 F.R.D. at 168 (quoting In re
Prudential Ins. Co. of Am. Sales Practice Litig., 148
F.3d 283, 311 (3d Cir. 1998)).
argue that DPPs do not satisfy these requirements. First,
they assert that different class members had different
bargaining power. They point to class member, LKQ, which
apparently makes up 60 percent of the purchaser market and
cite such cases as Deiter v. Microsoft Corp., 436
F.3d 461 (4th Cir. 2006) and In re Graphics Processing
Units Antitrust Litig., 253 F.R.D. 478 (N.D. Cal. 2008),
which involved classes including both wholesale buyers of a
product, who negotiated prices with the seller, and retail
buyers, who paid prices set in advance. The present case,
however, is distinguishable in several respects. First, while
some class members in the present case may have had increased
bargaining power, unlike in Deiter and Graphics
Processing Units, there is no sub-set of class members
who had no bargaining power and simply paid prices set by
defendants. Second, the Deiter and Graphic
Processing Units courts concluded that the class
representatives’ claims were atypical of a large
portion of the putative class. In the present case, however,
only LKQ had substantially more bargaining power than other
class members. This is not enough to show that Fond du Lac
Bumper and Roberts’ claims are atypical of the class.
Further, defendants offer no reason to believe that some
difference in bargaining power would create antagonism
between the class representatives and the class or otherwise
render Fond du Lac Bumper and Roberts inadequate as class
representatives, and I fail to see how it would.
also point to certain facts which they contend render the
putative class representative atypical and inadequate, such
as the fact that Fond du Lac Bumper only purchased from one
defendant, a distributor rather than a manufacturer. This,
however, does not make Fond du Lac Bumper atypical or
inadequate. Fond du Lac Bumper purchased directly from a
named defendant, TYG Products Inc., thus it is within the
class definition. See Am. Compl. at 4, 25 (ECF No.
217) (defining the class as “[a]ll persons and entities
. . . that purchased AM Sheet Metal Parts directly from a
Defendant” and naming “TYG Products Inc.”
as a defendant). It is, thus, a typical DPP. Further, the
class definition requires only one purchase, id.,
and because defendants are subject to joint and several
liability, Fond du Lac Bumper has an incentive to proceed
against all defendants in order to maximize the recovery.
See In re Linerboard Antitrust Litig., 203 F.R.D.
197, 208 (E.D. Pa. 2001), aff’d, 305 F.3d 145
(3d Cir. 2002).
Roberts, defendants argue that it knew about certain tooling
agreementsand that such knowledge renders it atypical
and inadequate. While prior knowledge of a conspiracy may
create a conflict of interest with the class, the
defendants’ leap from knowledge of tooling agreements
to knowledge of a price-fixing conspiracy is tenuous at best.
Roberts’ representative testified that Roberts did not
see tooling agreements as indicative of a price-fixing
conspiracy but understood them to mean simply that a vendor
was “producing [a particular tool] out of one
warehouse.” Servais Decl. Ex. C at 6 (ECF No. 813-3).
Roberts had no knowledge of how vendors negotiated tooling
agreements. Id. at 8–11. There is no evidence
that Roberts knew of a price-fixing conspiracy, and
defendants provide no reason to believe that knowledge of
tooling agreements creates a conflict of interest between
Roberts and other class members, and I fail to see how it
also argue that Fond du Lac Bumper and Roberts made indirect
purchases of aftermarket sheet metal from non-defendants,
unlike other class members. The class representatives,
however, made direct purchases from defendants, and
defendants do not explain how the existence of other
purchases creates antagonism with class members, and I fail
to see how they would.
also contend that they have unique, individual defenses
against the putative class members which preclude a finding
of typicality and adequacy of representation. The existence
of individual defenses, however, does not defeat typicality.
“Typicality under Rule 23(a)(3) should be determined
with reference to the company’s actions, not with
respect to particularized defenses it might have against
certain class members.” Wagner v. NutraSweet
Co., 95 F.3d 527, 534 (7th Cir. 1996).
regard to adequacy of representation, claimants vulnerable to
unique defenses are not allowed to be representative
plaintiffs if they might be “distracted by a relatively
unique personal defense.” Koos v. First Nat’l
Bank of Peoria, 496 F.2d 1162, 1165 (7th Cir. 1974);
see also J.H. Cohn & Co. v. Am. Appraisal Assocs.,
Inc., 628 F.2d 994, 999 (7th Cir. 1980). Defendants
argue that Fond du Lac Bumper and Roberts are subject to
potential unique defenses such as lack of standing, absence
of damages, and statute of limitations, but they do not
elaborate on these arguments and fail even to specify which
defense would apply to which named representative. I assume
that the lack of standing defense relates to
defendants’ argument that Fond du Lac Bumper is not a
“direct” purchaser because it purchased from a
distributor subsidiary of defendant Tong Yang. As noted
above, however, this is a weak argument because Fond du Lac
Bumper directly purchased from a named defendant. I assume
the statute of limitations defense is related to
defendants’ argument that Roberts knew about the
conspiracy before 2000, but again, this is also a weak
argument because of the absence of a link between knowledge
of tooling agreements and knowledge of a price-fixing