Plaintiffs Face High Class Cert. Bar In Antitrust Cases - Law360, New York (February 8, 2016)

Aug 27, 2026

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Class-action antitrust litigation turns on whether plaintiffs can satisfy standing and Rule 23’s damages class certification requirements through common evidence. Drawing on Amchem, courts require proof that each class member suffered at least some antitrust impact. In Food Lion LLC v. Dean Foods Co., the Eastern District of Tennessee denied certification, rejecting statistical averaging models when negotiated pricing and individualized contract terms undermined showing injury for all putative class members.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages4

Reading Time10 min

AccessFree to download

Plaintiffs’ burden under Amchem and standing

Common evidence and injury to each class member

Statistical modeling and its limits in antitrust cases

Regression based on averaged price data

Food Lion LLC v. Dean Foods Co.

Court’s rejection of certification and reasons under Rule 23

Portfolio Media. Inc. | 860 Broadway, 6th Floor | New York, [NY 10003 | www.law360.com](NY 10003 | www.law360.com)[ ](NY 10003 | www.law360.com)Phone: +1 646 783 7100 | Fax: + [1 646 783 7161 | customerservice@law360.com](1 646 783 7161 | customerservice@law360.com) Plaintiffs Face High Class Cert. Bar In Antitrust Cases Law360, New York (February 8, 2016, 5:19 PM ET) -- In Amchem Products Inc. v. Windsor, the U.S. Supreme Court clearly stated that to certify a class seeking damages under Federal Rule 23(b)(3), a court’s “inquiry trains on the legal or factual questions that qualify each class member’s case as a genuine controversy.”[1] In other words, courts must consider whether, through common evidence, plaintiffs can demonstrate whether each and every class member was infact injured by the challenged conduct. This simple conclusion flows directly from a fundamental [precept of U.S. law](precept of U.S. law)—standing. Claimants in federal court must have suffered an actual injury in fact caused by the defendants that will likely be redressed by a favorable court decision. [2] If claimants lack standing, not only would courts exceed their constitutional authority to decide only “cases” and “controversies,”[3] but also proceedings would raise serious due process concerns should defendants be forced to pay “damages” compensating for nonexistent injury. Under the Rules Enabling Act, which authorized the creation of the Federal Rules of Civil Procedure, nothing about Rule 23 changes—or could change—this constitutional requirement. [4] The simplicity of Amchem’s unassailable conclusion has proven much more complicated in practice. In antitrust class actions in particular, plaintiffs routinely seek to demonstrate injury through statistical modeling based on highly averaged price data that infers classwide injury without direct proof. But in recent years, courts across the country have been pushing back and refusing to certify classes if plaintiffscan prove no more than that a hypothetical average class member was injured. On Jan. 25, 2016, the Eastern District of Tennessee became the latest court to deny class certification for exactly this reason. In Food Lion LLC v. Dean Foods Co., U.S. District Judge J. Ronnie Greer refused to certify a direct purchaser class challenging defendant milk producers and processors’ allegedly anticompetitive conduct. [5] The plaintiffs alleged the three defendants colluded in a wide variety of ways, including by allocating territories, submitting sham bids, and restricting production capacity. In their motion for class certification, plaintiffs sought to demonstrate that the putative class members were accordingly overcharged for all milk purchased from 2002 to 2009. Plaintiffs’ expert, Professor Ronald W. Cotterill, conducted a regression analysis using nearly 7 million pieces of defendants’ sales data by which he concluded that the price of processed milk during the relevant time period was 7.2 percent higher than could be explained by other factors that might affect the price of milk. However, as with many industries, defendants’ customers did not simply pay an easily identified, uniform market price. Instead, many large customers, including the named plaintiff Food Olivia Jennings Adendorff Lion, paid prices set through individually negotiated contracts. In fact, Food Lion was such a large customer of defendant Dean Foods that it was the only customer of two of Dean Foods’ processing plants in the Southeast. As such, Food Lion was able to use its purchasing power to negotiate a cost-plus supply contract and a “paid to stay” concession from Dean Foods by which Dean Foods agreed to pay Food Lion 1 percent of net milk sales for the right to continue to supply milk to Food Lion. Defendants argued that Cotterill’s model could not accurately determine whether Food Lion and many other putative class members were actually injured at all. Defendants charged that his model did no

FAQs

What must plaintiffs show to certify a damages class under Rule 23(b)(3) in antitrust cases?

Courts require that common evidence demonstrates each class member’s case is a genuine controversy, meaning plaintiffs must show at least some antitrust impact for every class member.

Why can statistical averaging be insufficient for class certification?

When averaged price models assume harm applies uniformly, they may fail to prove impact for all—or even substantially all—class members, especially where negotiated contracts set different pricing.

What did Judge Greer decide in Food Lion LLC v. Dean Foods Co.?

Judge Greer denied certification because the plaintiffs’ expert model did not plausibly explain injury for Food Lion or other putative class members with individualized negotiated pricing, and therefore common questions would not predominate.

Aug 27, 2026

Uploaded by Rowan