Dial Corp. v. News Corp.

314 F.R.D. 108, 2015 U.S. Dist. LEXIS 79686, 2015 WL 4104624
CourtDistrict Court, S.D. New York
DecidedJune 18, 2015
DocketNo. 13cv6802
StatusPublished
Cited by25 cases

This text of 314 F.R.D. 108 (Dial Corp. v. News Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dial Corp. v. News Corp., 314 F.R.D. 108, 2015 U.S. Dist. LEXIS 79686, 2015 WL 4104624 (S.D.N.Y. 2015).

Opinion

MEMORANDUM & ORDER

WILLIAM H. PAULEY III, District Judge:

Plaintiffs The Dial Corporation, Henkel Consumer Goods Inc., H.J. Heinz Company, H.J. Heinz Company, L.P., Foster Poultry Farms, Smithfield Foods, Inc., HP Hood LLC, BEF Foods, Inc., and Spectrum Brands, Inc. (collectively, “Plaintiffs”) are consumer packaged goods firms (“CPGs”). They allege that Defendants News Corporation, News America Inc., News America Marketing FSI L.L.C., and News America Marketing In-Store Services L.L.C. (collectively, “News Corp.”) maintain a monopoly in the market for in-store promotion (“ISP”) services, and extract artificially high prices from their customers. Plaintiffs move to certify a class of CPGs that have “directly purchased in-store promotions from News [Corp.] at any time on or after April 5, 2008[.]” For the following reasons, Plaintiffs’ motion for class certification under Rule 23(b)(3) is granted.

BACKGROUND

News Corp. serves as a middleman in the ISP market between CPGs on the one hand, and groceries, drug stores, and other mass retailers on the other. Plaintiffs purchase a wide variety of ISPs, including print and electronic signage, end-of-aisle displays, shelf-mounted displays, freezer displays, and floor signage from News Corp. Those ISPs allow Plaintiffs to promote their products inside retail stores. (Fourth Amended Complaint (hereinafter, “FAC”) ¶ 54.) ISPs are a key component of Plaintiffs’ marketing because they reach consumers at the point of purchase, unlike other promotional tools, such as media advertising, which occur outside of the store.

News Corp. entered the ISP business in 1996 and gained a significant foothold by purchasing Heritage Media for $1.3 billion dollars the following year. Thereafter, News Corp. acquired FLOORgraphics, Inc. along with its retail network. News Corp. later settled a lawsuit with another competitor, Insignia, and etched a deal to distribute Insignia’s services through News Corp.’s retail network. (FAC ¶ 61.) Currently, News Corp. controls approximately 80% of the ISP market and is defending against monopolization claims by its only remaining competitor, Valassis, in the Eastern District of Michigan.

[112]*112News Corp.’s network of 52,500 retail stores is the only “one-stop shop” for nationwide access to a wide variety of ISPs. (FAC ¶ 57.) Access to retailers is essential to News Corp.’s success. Plaintiffs allege that to maintain its monopoly and erect barriers to competitive entry, News Corp. enters into long-term contracts with retailers for exclusive access to their stores. For example, if News Corp. provides at-shelf coupon dispensers for a retailer, News Corp.’s agreement prohibits that retailer from contracting with others to place at-shelf coupon dispensers elsewhere in the store. News Corp. also enters into exclusive, long-term contracts with CPGs to advertise their products. For example, News Corp. offers a specific “tactic” (i.e., shelf coupons) for a fixed period of time to only one CPG for a particular product category (i.e., cereal).

Plaintiffs allege that News Corp. maintains its monopoly by using these long-term, exclusive contracts with retailers and CPGs. (FAC ¶¶ 10-17, 74-85, 108-15.) Plaintiffs also allege that News Corp. engages in additional anti-competitive conduct by: hacking into computerized customer lists and marketing materials of its competitor, FLOORgraphics; staggering the terns of exclusive contracts; enforcing shelf exclusivity; using cash guarantees to derail competitor contracts; defacing competitor advertisements; and disparaging competitors’ compliance rates and their financial viability. (FAC ¶¶ 86-104.)

In addition to ISPs, Plaintiffs purchase free-standing-insert coupons (“FSIs”) from News Corp. for placement in newspapers nationwide. (FAC ¶ 66.) Plaintiffs allege that News Corp. also maintains market power in the FSI product market through similar long-term, exclusive contracts. (FAC ¶ 120.)

DISCUSSION

I. Class Certification

Plaintiffs’ definition of the proposed class has morphed since they filed their Fourth Amended Complaint. Back then, Plaintiffs defined two separate classes: (1) the “News In-Store Class”; and (2) the “News FSI Class.” More recently, in their class certification motion, they abandoned the “News FSI Class,” and defined the “News In-Store Class” as follows:

Persons residing in the United States who have directly purchased in-store promotions from News Corp. at any time on or after April 5, 2008, and have not purchased these services under News Corp. contracts with mandatory arbitration clauses.

(ECF No. 141.) But that definition seems overbroad given the focus of the parties’ arguments on the certification motion. The issue presented is whether the proposed class plaintiffs are representative of CPGs. And in their reply papers, Plaintiffs offer a further refinement of the proposed class definition to exclude “retail purchasers of ISP.” For the purposes of the following discussion, this Court defines the proposed class as follows:

Non-retailer consumer packaged goods firms residing in the United States which have directly purchased in-store promotions from News Corp. at any time on or after April 5, 2008, and were not subject to mandatory arbitration clauses.

a. Requirements of Rule 23(a)

A party seeking class certification must first show that the proposed class meets the requirements of Federal Rule of Civil Procedure 23(a), which “requires that a proposed class action (1) be sufficiently numerous, (2) involve questions of law or fact common to the class, (3) involve class plaintiffs whose claims are typical of the class, and (4) involve a class representative or representatives who adequately represent the interests of the class.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir.2010). “The party must also satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Comcast v. Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013). Here, Plaintiffs rely on Rule 23(b)(3), which “requires the party seeking certification to show that ‘questions of law or fact common to class members predominate over any questions affecting only individual members’ and that class treatment would be superior to individual litigation.” Myers, 624 F.3d at 547 (quoting Fed.R.Civ.P. 23(b)(3)).

[113]*113Rule 23 “does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). Rather, “[t]he party-seeking class certification must affirmatively demonstrate compliance with the Rule, and a district court may only certify a class if it is satisfied, after a rigorous analysis, that the requirements of Rule 23 are met.” In re Am. Int’l Grp., Inc. Sec. Litig., 689 F.3d 229, 237-38 (2d Cir.2012). Plaintiffs must show compliance with Rule 23’s requirements by a preponderance of the evidence. Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir.2008).

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314 F.R.D. 108, 2015 U.S. Dist. LEXIS 79686, 2015 WL 4104624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dial-corp-v-news-corp-nysd-2015.