All Star Carts and Vehicles, Inc. v. BFI Canada Income Fund

280 F.R.D. 78, 81 Fed. R. Serv. 3d 712, 2012 WL 360011, 2012 U.S. Dist. LEXIS 12845
CourtDistrict Court, E.D. New York
DecidedJanuary 27, 2012
DocketNo. CV 08-1816
StatusPublished
Cited by5 cases

This text of 280 F.R.D. 78 (All Star Carts and Vehicles, Inc. v. BFI Canada Income Fund) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
All Star Carts and Vehicles, Inc. v. BFI Canada Income Fund, 280 F.R.D. 78, 81 Fed. R. Serv. 3d 712, 2012 WL 360011, 2012 U.S. Dist. LEXIS 12845 (E.D.N.Y. 2012).

Opinion

MEMORANDUM AND ORDER

WEXLER, District Judge:

This is an antitrust action stemming from Defendants’ use of certain contracts in connection with the business of small containerized waste hauling services on Long Island. The complaint originally alleged a conspiracy to restrain trade and an attempt to monopolize in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2. In a previous Memorandum and Order, this court dismissed Plaintiffs’ Section 1 and 2 claims of conspiracy, but allowed Plaintiffs to proceed with a Section 2 claim of attempted monopolization. All Star Carts and Vehicles, Inc. v. BFI Canada Income Fund, 596 F.Supp.2d 630, 642 (E.D.N.Y.2009).

Presently before the court are Defendants’ motion to exclude the expert opinion of Plaintiffs’ proffered expert, Dr. Barbara Stevens (“Dr. Stevens”) and Plaintiffs’ motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure.

BACKGROUND

I. Facts Supporting Class Claims

A. The Parties, the Relevant Markets and the Alleged Class

The facts forming the basis of Plaintiffs’ claims are set forth in greater detail in this court’s decision on Defendants’ motion to dismiss, and the court assumes familiarity therewith. The court states herein those facts relevant to disposition of the motion for class certification.

Plaintiffs allege an attempt to monopolize a stated relevant market for services in a stated geographic area. The relevant market alleged is that for small containerized waste hauling and disposal services. That market encompasses the market for the lifting of small containers of waste for emptying into the storage section of a vehicle which then transports the waste to a disposal site. Such services are provided primarily to commercial customers that generate more waste than residences, but less than larger entities that would typically utilize “roll-off’ containers which are transported to disposal sites, and returned to the customer. In contrast to roll off services, the market here provides the service of transporting waste from small containers that remain on the customers’ premises. The relevant geographic market in which Defendants are alleged to operate is the Long Island, New York Area.

The class asserted by consists of all persons and entities that have contracted with, and purchased small containerized waste disposal services in the relevant market directly from defendants (the “Plaintiff Class”). The relevant time period alleged covers May 5, 2004, through the present.

B. The Alleged Anti-Competitive Contracts

At the core of Plaintiffs’ complaint are certain contractual provisions binding customers who purchase disposal services from [82]*82Defendants. These contractual provisions are known as “Evergreen” clauses, that include allegedly anti-competitive provisions such as automatically renewable terms of between three and ten years. These renewal provisions extend the contracts for same period of time as the original term, and require customers to give notice of termination at least ninety days prior to the end of a term. Also identified as anti-competitive are liquidated damages provisions, and those that require customers to give notice to Defendants of any offer by a different solid waste hauling company. These “right to compete” clauses require customers to give Defendants a reasonable opportunity to respond to the competitor’s offer.

Defendants’ use of these clauses, in the context of their large market share and market power in the relevant market, is alleged to have had anti-competitive and exclusionary effects. These effects are described as significantly increasing barriers to entry facing new entrants to the relevant market, and barriers to expansion faced by competitors. Defendants’ market power is alleged to be maintained and enhanced by their use and enforcement of these contracts.

II. The Motions

As noted, before the court are Plaintiffs’ motion for class certification and Defendants’ motion to exclude the expert report of Dr. Stevens. Plaintiffs seeks class certification pursuant to Rules 23(b)(3) and 23(b)(2) of the Federal Rules of Civil Procedure. As to both subsections of Rule 23(b), Defendants argue that Plaintiffs cannot establish the Rule 23(a) threshold issue of commonality of class issues. Further, Defendants oppose the Rule 23(b)(3) certification motion on the ground that Plaintiffs cannot show predominance of class issues. The Rule 23(b)(2) motion is opposed on the ground that creation of an injunctive class is not warranted.

As to the motion to exclude the expert opinion of Dr. Stevens, Defendants, relying on the opinion of their proffered expert, Dr. James Lagenfeld, argue that Dr. Stevens’ report (the “Stevens Report”) must be rejected because Dr. Stevens fails to provide any reliable methodology to analyze causation, or to quantify the damages for any member of the proposed class.

A decision as to the admissibility of the Stevens Report bears directly and importantly on the motion for class certification. Exclusion of this report will make it difficult for Plaintiffs to show that a proper methodology exists to show the common proof required in support of their claim that class issues predominate. In particular, the admissibility of the report impacts whether Plaintiffs will be able to show that a common formula can be used to compare actual prices paid with the prices that would have paid, but for the Defendants’ anti-competitive activity.

After setting forth applicable legal standards the court will turn first to the merits of the expert opinion motion and then to the motion for class certification.

DISCUSSION

I. Motion to Exclude Expert Opinion of Dr. Stevens

A. Standards for Admissibility of Expert Testimony

The admissibility of an expert’s opinion is governed by Rule 702 of the Federal Rules of Evidence. That rule provides that a witness qualified by “knowledge, skill, experience, training, or education” may testify in the form of an opinion if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed.R.Evid. 702.

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All Star Carts & Vehicles, Inc. v. BFI Canada Income Fund
887 F. Supp. 2d 448 (E.D. New York, 2012)
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Cite This Page — Counsel Stack

Bluebook (online)
280 F.R.D. 78, 81 Fed. R. Serv. 3d 712, 2012 WL 360011, 2012 U.S. Dist. LEXIS 12845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/all-star-carts-and-vehicles-inc-v-bfi-canada-income-fund-nyed-2012.