On Apr. 8, 2015, the U.S. Court of Appeals for the 3d Circuit vacated a district court order that had certified a class of direct purchasers of traditional blood reagents who asserted price-fixing claims under Section 1 of the Sherman Act. In re: Blood Reagents Antitrust Litig., No. 12-4067, 2015 WL 1543101 at *1 (3d Cir. Apr. 8, 2015).
In Blood Reagents, plaintiffs alleged that defendants Immucor, Inc. and Ortho-Clinical Diagnostics, Inc. conspired to fix prices of blood reagents. Immucor settled and the court then certified the class over Ortho's objection. The 3d Circuit granted Ortho's Rule 23(f) petition.
Plaintiffs relied on expert testimony to produce their models for antitrust impact and damages. Ortho challenged the expert's testimony as a basis for certifying the class, but the district court certified the class in part by holding that the expert's testimony "could evolve to become admissible evidence" at trial, and therefore met Rule 23(b)(3)'s predominance requirement. This standard was based on the 3d Circuit's original decision in Behrend v. Comcast Corp., 655 F.3d 182, 204 n.13 (3d Cir. 2011) ("Behrend"), which later was reversed by the U.S. Supreme Court in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) ("Comcast").
The 3d Circuit held that the "could evolve to become admissible evidence" standard did not survive the Supreme Court's decision in Comcast. Instead, quoting its decision in In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2008), the 3d Circuit explained that "the 'proper task' of the trial court is to consider carefully all relevant evidence and make a definitive determination that the requirements of Rule 23 have been met before certifying a class." The district court erred in assuming that the expert's testimony "could evolve to become admissible evidence," rather than making that determination at the class certification stage. Blood Reagents, 2015 WL 1543101 at *4.
The 3d Circuit buttressed its decision by joining other circuits in holding that "a plaintiff cannot rely on challenged expert testimony, when critical to class certification, to demonstrate conformity with Rule 23 unless the plaintiffs also demonstrates, and the trial court finds, that the expert testimony satisfied the standard set out in Daubert."Id. at *3. If the expert testimony cannot satisfy Daubert, then it cannot be a basis for satisfying either Rule 23(a) or Rule 23(b). The district court erred by not conducting an appropriate Daubert inquiry at the class certification stage.
In light of these errors, the 3d Circuit vacated the district court's class certification order and remanded for further proceedings consistent with its opinion.
The 3d Circuit's opinion is available here.
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