A multidistrict litigation (MDL) court that is considering pre-trial matters in 91 consolidated antitrust lawsuits alleging that major chocolate manufacturers conspired to implement price increases from 2002 through 2007, has granted the direct-purchaser plaintiffs’ motion for class certification. In re Chocolate Confectionary Antitrust Litig., MDL No. 1935 (U.S. Dist. Ct., M.D. Pa., order entered December 7, 2012). The court did so after first determining whether the plaintiffs’ expert testimony in support of class certification is reliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

The U.S. Supreme Court is currently facing a similar issue, that is, “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” The MDL court, noting that the issue has not yet been decided in the Third Circuit, found persuasive the reasoning of the Fifth and Seventh Circuits, which have found that a full Daubert analysis is called for at the Rule 23 certification stage in appropriate situations. Given its role in deciding whether the class claims predominate, the MDL court said, “A court should be hard pressed to conclude that the elements of a claim are capable of proof through evidence common to the class if the only evidence proffered would not be admissible as proof of anything.”

The court found the plaintiffs’ expert testimony, which was based on econometric modeling and focused on the nature of the chocolate confectionary industry as purportedly conducive to price-fixing, admissible. Then the court certified a class of “All persons and entities who directly purchased standard (‘singles’) and King size (‘King’) single serve chocolate candy for re-sale from any Defendant or any predecessor, controlled subsidiary affiliates or division of any Defendant, in the United States or for delivery into the United States at any time from December 9, 2002 through December 20, 2007.”