Kenett Corp. v. Massachusetts Furniture & Piano Movers Ass'n

101 F.R.D. 313
CourtDistrict Court, D. Massachusetts
DecidedFebruary 9, 1984
DocketCiv. A. No. 82-140-Z
StatusPublished
Cited by5 cases

This text of 101 F.R.D. 313 (Kenett Corp. v. Massachusetts Furniture & Piano Movers Ass'n) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kenett Corp. v. Massachusetts Furniture & Piano Movers Ass'n, 101 F.R.D. 313 (D. Mass. 1984).

Opinion

MEMORANDUM OF DECISION

ZOBEL, District Judge.

Plaintiff alleges that defendants and unnamed coconspirators conspired to raise, fix, maintain, or stabilize the prices of moving household goods and office equipment in Massachusetts. The case is before me now on plaintiff’s motion for class certification.1

The defendant companies are engaged in the moving business. This includes the transportation of household goods and office equipment as well as related services such as packing, intermediate storage, hoisting and lowering, piano and organ carrying, and stair and distance carrying. The Massachusetts Furniture and Piano Movers Association (“Mass. Movers”), also a defendant, is an association organized to promote and advise the moving industry in Massachusetts. It has 300 members, constituting approximately 80% of all movers doing some intrastate business in Massachusetts. Mass. Movers performs no moving services itself.

The Massachusetts intrastate trucking industry is regulated by the Massachusetts Department of Public Utilities (“MDPU”). MDPU certifies truckers to move household goods and office equipment within Massachusetts. In addition, each mover must file a tariff with MDPU containing the mover’s charges for the services it provides. A mover cannot depart from the tariff once it is accepted by MDPU.

One of the primary functions of Mass. Movers is to prepare and file with MDPU joint rates on behalf of its members. Such joint tariffs are authorized by MDPU regulations. Both members and nonmembers of Mass. Movers are free to acquiesce in any part of the joint tariff (unless it is suspended by MDPU) by filing concurrence forms with MDPU, or they may file their own tariffs for approval. Mass. Movers last filed a joint tariff with MDPU in 1971. The tariff consisted of nine complete hourly rate tables, of which movers were free to accept any one. Two additional tables at higher rates were added between 1971 and 1974. MDPU has refused to accept any higher rate tables filed by Mass. Movers since 1974, although many of its members have successfully filed individual tariffs at higher rates since then.

On June 12, 1980, the Federal Trade Commission filed a complaint against Mass. Movers charging a price fixing conspiracy in violation of the Federal Trade Commission Act, 15 U.S.C. § 45. The Administrative Law Judge issued an initial decision on December 1, 1981; he found that Mass. Movers and its members, by arriving at mutually agreeable rate schedules to be filed with MDPU, violated Section 1 of the Sherman Act and Section 5 of the Federal Trade Commission Act.

On the motion for class certification, plaintiff has the burden of showing that the suit meets the specific requirements of Fed.R.Civ.P. 23. See, e.g., Delga[315]*315do v. McTighe, 91 F.R.D. 76, 78 (E.D.Pa.1981); Bass v. Boston Five Cent Savings Bank, 478 F.Supp. 741, 745 (D.Mass.1979). Since it seeks certification under the provisions of Fed.R.Civ.P. 23(b)(3); it must satisfy the requirements of both Rule 23(a) and 23(b)(3).2 Under the latter, plaintiff must establish that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Defendants forcefully contend that this requirement is not satisfied in this case and the certification should be denied. I agree.

In order to impose civil liability on defendants in a private antitrust action, plaintiff must establish: (1) a violation of the antitrust laws; (2) direct injury to plaintiff from such violation; and (3) damages sustained by plaintiff. See Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309, 317 (5th Cir.1978); Windham v. American Brands, Inc., 565 F.2d 59, 65 (4th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978). Absent proof of direct injury to or impact on plaintiff, a mere finding of a conspiracy in violation of the antitrust laws is insufficient to establish liability. Plaintiff argues that the first two of these issues, the existence of a conspiracy and impact, can be proved in common for the class as a whole and, therefore, common questions predominate.

At the outset, defendants raise the specter of hundreds of “mini-trials” to assess damages. Each member of the putative class paid a different price for a different set of moving services purchased from one of 28 defendants. Although it is likely that the question of damages will require individualized proof, this alone is insufficient to deny class certification. See In re Screws Antitrust Litigation, 91 F.R.D. 52, 58 (D.Mass.1981); Shelter Realty Corp. v. Allied Maintenance Corp., 75 F.R.D. 34, 37 (S.D.N.Y.1977), appeal dismissed, 574 F.2d 656 (2d Cir.1978) (noting that if individualized proof of damages was alone sufficient to defeat class, “there would be little if any place for the class action device in the adjudication of antitrust claims”). The conspiracy and impact issues must, therefore, be examined.

Plaintiff argues that the existence of a conspiracy is an issue common to the proposed class. Although this may be true, as a general proposition, in cases of alleged horizontal price fixing conspiracies, see, e.g., In re Screws Antitrust Litigation, 91 F.R.D. at 56; Chevalier v. Baird Savings Association, 72 F.R.D. 140, 149 (E.D.Pa.1976), each case must, nonetheless, be considered on its individual facts. See In re Hotel Telephone Charges, 500 F.2d 86, 89 (9th Cir.1974) (“allegation that a conspiracy existed to violate the antitrust laws does not insure that common questions will predominate”).

In the instant case, the decision issued by the Federal Trade Commission Administrative Law Judge and affidavits filed by defendants demonstrate that moving services in Massachusetts are provided in several local markets, rather than in a single statewide market. The Administrative Law Judge found that Mass. Movers divided its membership into six zones and worked within each zone to achieve uniform rates. Proof of a conspiracy in the Boston area in 1979, therefore, would have [316]*316no relevance to proving the existence of a conspiracy among Cape Cod movers at the same time, or, for that matter, among Boston movers in 1981. Plaintiff would have the burden of showing the configuration of the relevant markets and that the defendants and unnamed coconspirators serving each market knowingly participated in a conspiracy at the times alleged. Plaintiff has given no indication beyond mere ipse dixit how such an analysis is amenable to generalized proof.3 Given the facts of this case, the issue of the existence of a conspiracy requires an individualized inquiry.4 See, e.g., Alabama v. Blue Bird Body Co., Inc.,

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Bluebook (online)
101 F.R.D. 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenett-corp-v-massachusetts-furniture-piano-movers-assn-mad-1984.