December 8, 2015
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 10 C 5711 - Harry
D. Leinenweber, Judge.
Wood, Chief Judge, and Bauer and Williams, Circuit Judges.
antitrust laws prohibit competing economic actors from
colluding to agree on prices, either directly or through such
mechanisms as output restrictions. See United States v.
Socony-Vacuum Oil Co., 310 U.S. 150 (1940); Palmer
v. BRG of Georgia, Inc., 498 U.S. 46 (1990). That is
just what the plaintiffs in the case before us allege the
producers and sellers of containerboard did. The
plaintiff-purchasers filed this suit under Sherman Act §
1, 15 U.S.C. § 1, seeking to recover treble damages for
the overcharges they allegedly paid. See Clayton Act §
4, 15 U.S.C. § 15. What brings the case before us at
this time-well before the merits have been resolved-is the
district court's decision to certify a nationwide class
of purchasers under Federal Rule of Civil Procedure 23. The
defendants, International Paper Company, Georgia-Pacific LLC,
Temple-Inland Inc., RockTenn CP, LLC, and Weyerhauser Company
(to whom we will refer collectively as Defendants unless the
context requires otherwise), asked us to accept this
interlocutory appeal from the certification decision pursuant
to Rule 23(f). We agreed to do so. Finding no abuse of
discretion in the district court's decision, however, we
Purchasers allege in their complaint that the defendant
companies agreed "to restrict the supply of
container-board by cutting capacity, slowing back production,
taking downtime, idling plants, and tightly restricting
inventory." These actions predictably led to an increase
in the price of con-tainerboard-a price increase that caused
Purchasers to pay more for containerboard products than they
would have paid in the absence of the illegal agreement. The
named plaintiff on the complaint is Kleen Products LLC. It
asked the district court to certify the following class:
All persons that purchased Containerboard Products directly
from any of the Defendants or their subsidiaries or
affiliates for use or delivery in the United States from at
least as early as February 15, 2004 through November 8, 2010.
proposed definition carved out the defendants themselves,
entities or personnel related to them, and governmental
entities. The Defendants opposed class certification on a
number of grounds: whether common questions predominate;
whether antitrust injury can be proved using a common method;
whether the amount of damages can be proved using a common
method; and whether a class action is superior.
Supreme Court emphasized in Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338 (2011), "Rule 23 does not set
forth a mere pleading standard. A party seeking class
certification must affirmatively demonstrate his compliance
with the Rule ... ." Id. at 350. We must
therefore take a careful look at the evidence that the
Purchasers presented in support of class certification as we
assess the district court's ruling. Some of that evidence
was provided by experts, but at this stage we need say little
about them, because no defendant challenged the
Purchasers' experts under Federal Rule of Evidence 702 or
the Supreme Court's decision in Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993). See Tyson
Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1049 (2016)
(where there is no Daubert challenge, district court
may rely on expert evidence for class certification). The
district court also pointed out that "[f]or the most
part, the parties agree on the basic facts, and both
parties' experts rely upon the same data, so there are
little if any factual disputes that the Court must resolve to
decide class certification." For that reason, the court
concluded that there was no need for a comprehensive
evidentiary hearing. This, in our view, was a case-management
decision that we have no reason to second-guess, despite
Defendants' complaints. See American Honda Motor Co.
v. Allen, 600 F.3d 813, 815 (7th Cir. 2010) (evidentiary
hearing should be held "if necessary"); West v.
Prudential Sec, Inc., 282 F.3d 935, 938 (7th Cir. 2002)
final points are worth making before we turn to the evidence.
First, nothing in Wal-Mart changed the applicable
standard of review, which is deferential (as the cases say,
only for "abuse of discretion"). Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th
Cir. 2012). Second, it remains true that Rule 23 does not
demand that every issue be common; classes are
routinely certified under Rule 23(b)(3) where common
questions exist and predominate, even though other individual
issues will remain after the class phase. See, e.g.,
McMahon v. LVNV Funding, 807 F.3d 872, 875-76 (7th Cir.
2015); Pella Corp. v. Saltzman, 606 F.3d 391, 393
(7th Cir. 2010).
the requirements for class certification under Rule 23 are
familiar, we set out the critical sections of the rule here
for ease of reference:
(a) Prerequisites. One or more members of a class may sue or
be sued as representative parties on behalf of ...