Jerry Enterprises of Gloucester County, Inc. v. Allied Beverage Group, L.L.C.

178 F.R.D. 437, 1998 U.S. Dist. LEXIS 2072, 1998 WL 113700
CourtDistrict Court, D. New Jersey
DecidedFebruary 23, 1998
DocketNos. Civ.A. 96-2347, 97-282
StatusPublished
Cited by5 cases

This text of 178 F.R.D. 437 (Jerry Enterprises of Gloucester County, Inc. v. Allied Beverage Group, L.L.C.) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jerry Enterprises of Gloucester County, Inc. v. Allied Beverage Group, L.L.C., 178 F.R.D. 437, 1998 U.S. Dist. LEXIS 2072, 1998 WL 113700 (D.N.J. 1998).

Opinion

OPINION

ORLOFSKY, District Judge.

In this action alleging that distributors of distilled alcoholic beverages conspired to fix wholesale prices on such goods throughout the state of New Jersey in violation of the Sherman Act and the New Jersey Antitrust Act, presently before the Court is Plaintiffs’ motion for class certification. Defendants have not challenged the maintenance of this action as a class action on the numerosity, commonality, and typicality prongs of Rule 23(a) of the Federal Rules of Civil Procedure. Nor do Defendants dispute that the action may be maintained as a class action under Rule 23(b)(3), that is, that questions of law and fact common to the members of the class predominate over questions affecting individual members of the class, and that a class action is superior to other methods of adjudicating the controversy.

Instead, Defendants have generated much heat and little light in a strenuous effort to demonstrate that the proposed class representatives will not fairly and adequately protect the interests of the class. In opposing Plaintiffs’ motion, Defendants have raised the often perplexing question of the nature of the “representational responsibilities” of a class representative and who can serve in that capacity. Defendants have vigorously challenged the qualifications of the named Plaintiffs, including two former Plaintiffs who withdrew as named Plaintiffs, to serve as class representatives. In mounting this attack, Defendants have also called into question the conduct of class counsel in bringing these actions, suggesting that the named Plaintiffs are the mere “stalking horses” of counsel, and that counsel are the “real parties in interest” in this litigation. Defendants’ concerns about the adequacy of class representation amount to little more than a parade of horribles about how and why this litigation began. There need only be one class plaintiff to represent a class and Plaintiffs have identified at least one member of the class, Jerry Enterprises of Gloucester County, Inc., who can adequately perform that task. Accordingly, for the reasons set forth below, Plaintiffs’ motion for class certification will be granted.

I. Facts and Procedural History

On May 21, 1996,1501 Licensing Corporation (“1501 Licensing”), a New Jersey Corporation with its principal place of business in Neptune, New Jersey, filed a Complaint against Defendants, The Baxter Group, Inc., Majestic Wine & Spirits, Flagstaff Distributors, Banner Distributors, Joseph H. Reinfeld Distributors, F & A Distributing Co., Inc., Merchants’ Wine & Liquor Co., Fedway Associates, Inc., Federal Wine & Liquor Co., Perrone Wine & Spirits, Inc. d/b/a GatewayPerrone Distributors, Capital Wine & Spirits Co. d/b/a Jersey National Capitol Wine & Liquor, Co., the Jaydor Corporation, J & J Distributing Co., International Vintners, Dorchester, Inc., Hoffman Import and Distribution, R & R Marketing, L.L.C., Reitman Industries, and Royal Distributors and Importers, Inc. The centerpiece of their allegations was the factual contention that these Defendants conspired to fix, maintain, and stabilize the price of distilled alcoholic beverages in an unreasonable restraint of trade and commerce, in violation of both section 1 of the Sherman Act, 15 U.S.C. § 1, and the New Jersey Antitrust Act, N.J.S.A. §§ 59:9-1 et seq. See 1501 Licensing Corp. v. F & A Distributing Co., Inc., et al., Civil Action No. 96-2347, Complaint K 35 (dated May 21, 1996) (hereinafter the 1501 Licensing action or 1501 Licensing).

About three weeks later on June 11, 1996, a nearly identical class action complaint was filed on behalf of Temps, Inc. (“Temps”), a New Jersey corporation with its principal place of business in Seaside Heights, New Jersey. See Temps, Inc. v. F & A Distributing Co., Inc., Civil Action No. 96-2789, Complaint (dated June 6, 1996) (hereinafter the Temps action or Temps). On July 3, 1996, pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the two actions were consolidated for all purposes. See 1501 Licensing, Stipulation & Order (dated July 3, 1996).

On July 16, 1996, then-Plaintiffs, 1501 Licensing and Temps, applied for an order to [440]*440show cause and moved for a preliminary injunction restraining Defendants from, inter alia, retaliating and discriminating against 1501 Licensing and Temps in the sale of distilled alcoholic beverages. The order to show cause was adjourned without date on July 26,1996.1

On August 22, 1996, an Amended Complaint was filed in the 1501 Licensing action, adding Tagco, Inc. (“Tagco”) and Jack N. Bill’s, Inc. (“JNB”), as Plaintiffs, and adding Allied Beverage Group, L.L.C. (“Allied”) as Defendant. See 1501 Licensing, Amended Complaint 11115(c-d), 31 (dated Aug. 22, 1996) . Allied moved to dismiss the Amended Complaint for failure to state a claim and, on February 7, 1997,1 denied that motion. See 1501 Licensing, Opinion at 7 (dated Feb. 7, 1997) . In the meantime, a Second Amended Complaint was filed, adding Chefs International, Inc. (“Chefs”) and Jerry Enterprises of Gloucester County (“Jerry Enterprises”) as Plaintiffs. See 1501 Licensing, Second Amended Complaint ¶5(e-f) (dated Dec. 5, 1996) (hereinafter Second Amend. Compl.).

The Second Amended Complaint repeats the “centerpiece” allegations of the Complaint: that Defendants, distributors of, inter alia, distilled alcoholic beverages, “substantially control and dominated the ... market for ... wholesale distribution of distilled alcoholic beverages” in New Jersey, id. at 1136; that Defendants engaged in a “conspiracy, the purpose and effect of which was to fix, maintain, and stabilize the price of distilled •alcoholic beverages [unreasonably],” id. at 1137. As an example of the allegedly collusive price fixing scheme of Defendants, Plaintiffs point to the “lockstep” fashion in which Defendants’ prices moved and allege that this pattern is not coincidental. See id. at 111139-45 (describing required “blind” filing of current price list with state authorities and remarkable concurrence of prices across distributors).2

On February 11, 1997, Robert D. Dubin d/b/a INT Lands II, Inc. t/a Caesar’s Lounge & Liquors (“Dubin”), represented by a set of lawyers completely different from those representing the 1501 Licensing Plaintiffs, filed a Complaint alleging substantially similar causes of action against Defendants. See Robert D. Dubin d/b/a INT Lands II, Inc. t/a Caesar’s Lounge & Liquors, et al. v. Allied Beverage Group, Inc., et al., Civil Action No. 97-782, Complaint (dated Feb. 11, 1997) (hereinafter the Dubin action).

On March 6, 1997, Magistrate Judge Rosen granted the motion of Plaintiffs, 1501 Licensing and Temps, for leave to withdraw. See 1501 Licensing, Order (dated March 7, 1997). Finally, on April 25, 1997, Magistrate Judge Rosen consolidated the 1501 Licensing action and the Dubin action. See 1501 Licensing, Order of Consolidation (dated Apr. 25, 1997). Throughout the remainder of this Opinion, I shall refer to the consolidated actions collectively as

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178 F.R.D. 437, 1998 U.S. Dist. LEXIS 2072, 1998 WL 113700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerry-enterprises-of-gloucester-county-inc-v-allied-beverage-group-njd-1998.