USCA4 Appeal: 23-2165 Doc: 64 Filed: 02/12/2025 Pg: 1 of 18
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-2165
MR. DEE’S INC., on behalf of themselves and all others similarly situated; RETAIL MARKETING SERVICES, INC., on behalf of themselves and all others similarly situated; CONNECTICUT FOOD ASSOCIATION, on behalf of themselves and all others similarly situated,
Plaintiffs – Appellants,
v.
INMAR, INC.; CAROLINA MANUFACTURER’S SERVICES, INC.; CAROLINA SERVICES; CAROLINA COUPON CLEARING, INC.,
Defendants – Appellees.
------------------------------
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,
Amicus Supporting Appellee.
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:19−cv−00141−WO−LPA)
Argued: December 10, 2024 Decided: February 12, 2025
Before WILKINSON, QUATTLEBAUM, and BERNER, Circuit Judges. USCA4 Appeal: 23-2165 Doc: 64 Filed: 02/12/2025 Pg: 2 of 18
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Quattlebaum and Judge Berner joined.
ARGUED: Daniel Lee Low, KOTCHEN & LOW LLP, Washington, D.C., for Appellants. Lisa R. Bugni, KING & SPALDING LLP, San Francisco, California, for Appellees. ON BRIEF: Daniel Kotchen, KOTCHEN & LOW LLP, Washington, D.C.; Kearns Davis, Matthew B. Tynan, BROOKS PIERCE MCLENDON HUMPHREY & LEONARD LLP, Greensboro, North Carolina, for Appellants. Anne M. Voigts, Palo Alto, California, Mateo de la Torre, New York, New York, Matthew V.H. Noller, KING & SPALDING LLP, San Francisco, California; Samuel B. Hartzell, Pressly McAuley Millen, WOMBLE BOND DICKINSON (US) LLP, Raleigh, North Carolina, for Appellees. Jennifer B. Dickey, Jonathan D. Urick, UNITED STATES CHAMBER LITIGATION CENTER, Washington, D.C.; Brian D. Schmalzbach, MCGUIREWOODS LLP, Richmond, Virginia, for Amicus Curiae.
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WILKINSON, Circuit Judge:
Plaintiffs-appellants Mr. Dee’s Inc., Retail Marketing Services, Inc., and
Connecticut Food Association are purchasers of coupon processing services. They sought
class certification in a lawsuit alleging that Inmar, Inc. and its subsidiaries participated in
an anticompetitive conspiracy to raise coupon processing fees. After multiple rounds of
briefing, the district court rejected plaintiffs’ attempts to certify a manufacturer purchaser
class. Plaintiffs appealed, arguing that each of the three manufacturer class definitions they
proposed satisfied the requirements of Federal Rule of Civil Procedure 23. Because we
find that the district court did not abuse its discretion in declining to certify any of the
proffered manufacturer classes, we affirm.
I.
A.
This case arose out of alleged anticompetitive conduct in the coupon processing
industry. Stated simply, coupon processing is what happens to coupons after they have
been redeemed at grocery stores and other retailers. When a manufacturer issues a coupon,
a consumer may present the coupon to a retailer in exchange for a discount on the purchase
price of the manufacturer’s product. Naturally, retailers want to be reimbursed for the
discount they provide in honoring the coupon. Manufacturers, meanwhile, want to ensure
that they only reimburse retailers for coupons that have been properly redeemed. This is
where coupon processing comes into play. J.A. 854–55.
Traditionally, processing paper coupons involved two additional players beyond
retailers and manufacturers. First, retailers would send the coupons to a “retailer processor”
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to count them and invoice the manufacturer. Next, the coupons would be sent to a
“manufacturer processor” hired by the manufacturer to re-count the coupons and verify the
retailer processor’s invoice. The amount that manufacturers were ultimately asked by
retailers and retailer processors to pay included the face value of the coupons plus
additional processing fees, including shipping fees. J.A. 855–57.
Importantly, because retailers and retailer processors did not contract directly with
manufacturers for coupon processing services, manufacturers were not contractually
obligated to pay shipping fees. Adding another layer of complication, manufacturers
sometimes disagreed with the amounts they were invoiced. When this happened, the
manufacturer might refuse to pay, or “charge back,” part of the invoiced amount. In
response, a retailer could “deduct” chargebacks from what the retailer owed the
manufacturer for the products they purchased. J.A. 856–58, 2055.
B.
The three named plaintiffs in this case are purchasers of coupon processing services.
Mr. Dee’s, Inc. is a manufacturer that issues coupons and purchases coupon processing
services. Retail Marketing Services, Inc. and Connecticut Food Association purchase
coupon processing services on behalf of retailers. Defendants Inmar, Inc. and its subsidiary
Carolina Manufacturer’s Services, Inc. (“CMS”) sell processing services to manufacturers.
Inmar’s subsidiaries Carolina Coupon Clearing, Inc. (“CCC”) and Carolina Services
(collectively “Inmar”) sell processing services to retailers. J.A. 2053–54.
The plaintiffs allege that Inmar entered a horizontal price-fixing agreement with
competitor International Outsourcing Services, LLC (“IOS”) that resulted in higher
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shipping fees. The alleged conspiracy lasted from 2001 until 2007 when certain IOS
personnel were criminally indicted. The antitrust case against Inmar was first brought in
the United States District Court for the Eastern District of Wisconsin in 2008, but
proceedings were stayed to allow resolution of the criminal charges. IOS was eventually
dismissed from the antitrust case after filing for bankruptcy, leaving only the Inmar
defendants. In 2019, the case was transferred to the Middle District of North Carolina. J.A.
2053–56, 2061.
As is typical in the antitrust context, the plaintiffs relied heavily on expert testimony
to make their case. The centerpiece of plaintiffs’ evidence was a report prepared by expert
witness Dr. Kathleen Grace. Dr. Grace used a dataset of fees charged to manufacturers to
calculate a “mean shipping fee payment per 1,000 coupons” for Inmar, IOS, and NCH
(another coupon processor not part of the alleged conspiracy) for each year between 2000
and 2007. J.A. 2057. She then performed regression analyses “to estimate shipping fee
overcharges,” that is, the amounts manufacturers paid above a forecasted competitive
shipping fee. J.A. 2057–60. Dr. Grace also estimated shipping fee overcharges for retailers
that resulted from manufacturers refusing to pay shipping fees. J.A. 2060–61.
Plaintiffs sought certification for two classes, one of manufacturer purchasers of
coupon processing services (which the district court denied) and another of retailer
purchasers (which the district court granted). For simplicity, we focus only on the proffered
manufacturer classes as to which we granted permission to appeal. J.A. 2117, 2119.
The district court denied plaintiffs’ first two motions for class certification without
prejudice. The first was denied after issues arose during discovery. J.A. 2061–62. The
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second sought to certify “a class of manufacturers that directly paid observably higher CCC
or IOS shipping fees during the class period (April 11, 2001 through March 28, 2007),
identified on the list attached to Plaintiffs’ supporting brief at Exhibit 24, Appendix A.”
J.A. 1249. Appendix A was a list of 5,280 manufacturers which Dr. Grace identified as
having “directly paid observably higher CCC or IOS shipping fees during the class period.”
J.A. 1249, 1728–1828. The district court rejected the proposed class as an “impermissible
fail-safe class[] because class membership is conditioned on having suffered antitrust
injury or impact in the form of increased shipping fees.” J.A. 1447.
Plaintiffs’ third motion sought certification of “a class of manufacturers that directly
paid CCC shipping fees during more than 8 different calendar months during the class
period (April 11, 2001 through March 28, 2007) and/or were clients of CMS and directly
paid shipping fees to IOS for at least 2.2 million coupons during the class period” (the
“Limited Payer Class”). J.A. 1452, 2066–67. After a motions hearing, the district court
directed the parties to file additional briefing discussing whether a class could be certified
without the month and volume cutoffs. In response, the plaintiffs added a new potential
class definition: “manufacturers that directly paid CCC shipping fees during the class
period and/or were clients of CMS and directly paid shipping fees to IOS” (the “All Payer
Class”). J.A. 2067. Plaintiffs also proposed that the classes could, alternatively, be defined
simply as the “manufacturers listed in [Appendix A].” J.A. 2097 n.10 (the “Fixed List
Class”).
The district court rejected each of the three proffered manufacturer classes. With
respect to the Fixed List Class, the district court determined that the revised definition
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“mirror[ed] the fail-safe class[]” that it previously refused to certify and “fail[ed] for the
same reason.” Id. Regarding the Limited Payer Class, the district court found that the class
excluded “more than 2,000 manufacturers who were allegedly victims of the same Sherman
Act violation.” J.A. 2073. Because, on the court’s view, the scope of the proposed class
was “untethered from Defendants’ alleged wrongs,” the class failed Rule 23’s implicit
ascertainability requirement. J.A. 2052–53. Finally, the district court rejected the All Payer
Class for failing to satisfy Rule 23(b)(3)’s predominance requirement. The district court
found that of the 7,813 members of the All Payer Class, 2,533 suffered no demonstrable
antitrust injury. Without “expert testimony showing impact and damages to almost a third
of the class,” the district court determined that the plaintiffs had not met their burden to
show that common questions would predominate. J.A. 2089–90, 2104.
Invoking Rule 23(f), the plaintiffs appealed the district court’s denial of certification
of a manufacturer class. This court granted review. J.A. 2119.
II.
We have long recognized that district courts possess “broad discretion in deciding
whether to certify a class.” Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001)
(quoting In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996)). Accordingly, this
court reviews class certification decisions for abuse of discretion. Gregory v. Finova Cap.
Corp., 442 F.3d 188, 190 (4th Cir. 2006). In applying this standard, we are “cognizant of
both the considerable advantages that our district court colleagues possess in managing
complex litigation and the need to afford them some latitude in bringing that expertise to
bear.” Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 654 (4th Cir. 2019).
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In the class action context, an “abuse of discretion occurs when a district court
‘materially misapplies the requirements of Rule 23.’” Stafford v. Bojangles’ Rests., Inc.,
123 F.4th 671, 678 (4th Cir. 2024) (quoting EQT Prod. Co. v. Adair, 764 F.3d 347, 357
(4th Cir. 2014)). A district court also abuses its discretion when it “clearly errs in its factual
findings.” Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 317 (4th Cir. 2006). To find
that the district court clearly erred in the factual findings underlying a certification decision,
we must be “left with the definite and firm conviction that a mistake has been committed.”
Williams v. Martorello, 59 F.4th 68, 86 (4th Cir. 2023) (quoting United States v. Hall, 664
F.3d 456, 462 (4th Cir. 2012)).
Rule 23(a) requires that every class satisfy four basic prerequisites: “numerosity of
parties, common questions of law or fact, typicality of claims or defenses of the
representative parties, and adequacy of representation.” G.T. v. Bd. of Educ. of Cnty. of
Kanawha, 117 F.4th 193, 202 (4th Cir. 2024). Along with these four explicit requirements,
we have also required every class to satisfy Rule 23’s implicit “ascertainability”
requirement, which precludes certification “unless a court can readily identify the class
members in reference to objective criteria.” EQT Prod. Co., 764 F.3d at 358.
A class must also “fall within one of the three categories enumerated in Rule 23(b).”
Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 423 (4th Cir. 2003). Here, plaintiffs
sought class certification under Rule 23(b)(3). This category of class action “requires a
finding that common questions ‘predominate over’ any individualized questions, and that
‘a class action is superior to other available methods for fairly and efficiently adjudicating
the controversy.’” Stafford, 123 F.4th at 678–79 (quoting Fed. R. Civ. P. 23(b)(3)).
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The Supreme Court has made it clear that “[a] party seeking class certification must
affirmatively demonstrate his compliance” with Rule 23. Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 350 (2011). This is so because the class action device is “an exception to the
usual rule that litigation is conducted by and on behalf of the individual named parties
only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki,
442 U.S. 682, 700–01 (1979)). In this regard, we have emphasized that “the district court
has an independent obligation to perform a ‘rigorous analysis’ to ensure that all of the
prerequisites have been satisfied.” EQT Prod. Co., 764 F.3d at 358 (citation omitted). The
need to perform this rigorous analysis means that a district court may engage in a limited
merits inquiry to ensure that the Rule 23 requirements are met. Id.
III.
Mindful of the standards outlined above, we review the district court’s denial of
each of the proposed classes in turn.
We begin with the court’s rejection of the Fixed List Class. In their third attempt to
certify a class of manufacturer purchasers, the plaintiffs proposed to certify a class of
“manufacturers listed in [Appendix A].” J.A. 2097 n.10. The district court noted that this
definition was identical to the one it had previously considered and rejected but for deletion
of the phrase “that directly paid observably higher CCC or IOS shipping fees during the
class period.” Id. Because the revised definition referenced the same list of manufacturers
generated from Dr. Grace’s regressions, the district court concluded that this class too was
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an “impermissible fail-safe class[] because class membership is conditioned on having
suffered antitrust injury or impact in the form of increased shipping fees.” Id.
A “fail-safe” class is “defined so that whether a person qualifies as a member
depends on whether the person has a valid claim.” Messner v. Northshore Univ. HealthSys.,
669 F.3d 802, 825 (7th Cir. 2012). In EQT Production Co. v. Adair, we instructed the
district court in a footnote to “consider” on remand whether the classes could be defined
“without creating a fail-safe class.” 764 F.3d at 360 n.9. But we have not expressly
recognized an independent prohibition against fail-safe classes as some of our sister circuits
have done. 1
On appeal, the plaintiffs advance several arguments for why the Fixed List Class is
not a fail-safe class. They contend that the class members have been definitively identified
in Appendix A and will remain class members regardless of the merits outcome, and that
merely having paid higher prices, standing alone, would not be sufficient to prove liability
under the Sherman Act. See Opening Brief at 21–22, 29–30. Moreover, they argue that this
court should decline to adopt a prohibition against fail-safe classes that goes beyond the
certification requirements prescribed by Rule 23. See id. at 35–36.
1 See, e.g., In re Nexium Antitrust Litig., 777 F.3d 9, 22 (1st Cir. 2015); Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012); McCaster v. Darden Rests., Inc., 845 F.3d 794, 799 (7th Cir. 2017); Ford v. TD Ameritrade Holding Corp., 995 F.3d 616, 624 (8th Cir. 2021); Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 669 n.14 (9th Cir. 2022). But see In re Rodriguez, 695 F.3d 360, 370 (5th Cir. 2012) (rejecting an independent fail-safe class prohibition); In re White, 64 F.4th 302, 313 (D.C. Cir. 2023) (same). 10 USCA4 Appeal: 23-2165 Doc: 64 Filed: 02/12/2025 Pg: 11 of 18
We need not reach the viability of fail-safe classes because the Fixed List Class
suffers from more basic defects under Rule 23. See Cochran v. Morris, 73 F.3d 1310, 1315
(4th Cir. 1996) (invoking “the well-recognized authority of courts of appeals to uphold
judgments of district courts on alternate grounds”). Fatal to the Fixed List Class is the fact
that it fails to define a class at all. The text of Rule 23 and our cases interpreting the Rule
make clear why “it is insufficient merely to provide a list, however lengthy, of persons said
to be in the class and leave it to the court to devise a class definition.” 1 McLaughlin on
Class Actions § 4:2 (21st ed. 2024).
For one, Rule 23(c) requires the district court to “determine by order whether to
certify” a class action “[a]t an early practicable time after a person sues.” Fed. R. Civ. P.
23(c)(1)(A). And the “order that certifies a class action must define the class.”
Fed. R. Civ. P. 23(c)(1)(B). Where, as here, the party moving for certification merely
submits a list of names, the district court is left with the task of puzzling out the
commonalities that could support a valid class definition. Requiring the district court to
engage in this kind of preliminary legwork is at best in tension with Rule 23’s direction
that a certification order be issued promptly.
More fundamentally, it is the burden of the party seeking class certification, not the
district court’s, “to demonstrate compliance with Rule 23.” EQT Prod. Co., 764 F.3d at
358. And a plaintiff cannot “affirmatively demonstrate” that the various requirements of
Rule 23 have been met if the proposed class is identified by nothing more than a reference
to a list of names. Wal-Mart, 564 U.S. at 350. We will not unsettle the district court’s denial
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of certification of the Fixed List Class where the plaintiffs have attempted to transfer to the
district court the burden of demonstrating the class’s compliance with Rule 23.
We next turn to the district court’s rejection of the Limited Payer Class. Plaintiffs
moved to certify “a class of manufacturers that directly paid CCC shipping fees during
more than 8 different calendar months during the class period (April 11, 2001 through
March 28, 2007) and/or were clients of CMS and directly paid shipping fees to IOS for at
least 2.2 million coupons during the class period.” J.A. 1452. The district court observed
that the Limited Payer Class was comprised of “3,219 injured manufacturers and 65
uninjured manufacturers” but excluded “more than 2,000 manufacturers who were
allegedly victims of the same Sherman Act violation.” J.A. 2072–73.
The court found that this class failed to satisfy Rule 23’s implicit ascertainability
requirement. We have explained that for a proposed class to be ascertainable, individual
members must be identifiable “in reference to objective criteria.” EQT Prod. Co., 764 F.3d
at 358. At the motions hearing, the plaintiffs contended that the month and volume cutoffs
reflected a “natural breaking point” in the data “above which almost all manufacturers were
injured.” J.A. 2073. The district court reasoned, however, that because “Plaintiffs’ model,
rather than the Defendants’ alleged conspiracy, determines which retailers and
manufacturers receive the benefits of class membership,” the scope of the class was not
objectively determined. J.A. 2073–74. The district court also raised a concern that by
excluding thousands of manufacturers with valid claims, certification of the Limited Payer
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Class would frustrate the class action goal of “avoiding multiple lawsuits.” J.A. 2075
(quoting Fariasantos v. Rosenberg & Assocs., LLC, 303 F.R.D. 272, 278 (E.D. Va. 2014)).
The district court did not abuse its discretion in declining to certify the Limited
Payer Class. An essential purpose of any class action is to redress an injury. If the criteria
for class membership bear little relationship to the defendants’ conduct, then the class
definition is untethered from the purpose of employing the class action procedure in the
first instance. Here, the fact that more than 2,000 manufacturers—39% of those identified
as having paid observably higher shipping fees—were excluded by the date and volume
cutoffs demonstrates that the Limited Payer Class definition is untethered from the
plaintiffs’ own evidence of harm.
By the same token, excising such a large share of potential claimants from the
proposed class raises a superiority problem. Certification under Rule 23(b)(3) requires that
the class action mechanism be “superior to other available methods for fairly and efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Because the Limited Payer Class
cutoffs exclude thousands of manufacturers purporting to show the same harm as the
included class members, certifying such an incomplete class might expose defendants to a
continued trickle of individual lawsuits and thereby impair the efficiency goal which is a
key purpose of the class action mechanism.
To be sure, we do not mean to suggest that a plaintiff must necessarily prove that a
class action would be the “best” method for adjudicating a controversy before a class may
be certified. See Krakauer, 925 F.3d at 655 (observing that because “claims aggregated
under Rule 23(b)(3) can be resolved without the class mechanism,” predominance and
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superiority “ensure that a class action is only used when it makes sense”). We find only
that, under the standard of review and the circumstances present here, it was not an abuse
of discretion for the district court to conclude that the Limited Payer Class cutoffs rendered
certification inappropriate.
C.
Finally, we consider the district court’s rejection of the All Payer Class. That class
was defined as “manufacturers that directly paid CCC shipping fees during the class period
and/or were clients of CMS and directly paid shipping fees to IOS.” J.A. 2067. The district
court found that the All Payer Class could not satisfy Rule 23(b)(3)’s predominance
requirement because Dr. Grace’s regressions did not show impact for 2,533 (32%) of the
7,813 class members, and the plaintiffs “fail[ed] to proffer additional evidence that all
manufacturers in the class suffered antitrust impact and damages.” J.A. 2089.
The plaintiffs raise two primary challenges to this conclusion. First, they argue that
the district court erred in finding as a matter of fact that 32% of the members of the All
Payer Class were uninjured. Opening Brief at 50. Second, they contend that nothing in Rule
23 permits the district court to deny certification to a class because of a high share of
uninjured class members. Id. at 52–53.
We disagree on both counts. When it comes to the share of class members lacking
evidence of injury, we are hardly “left with the definite and firm conviction that a mistake
has been committed.” Williams, 59 F.4th at 86 (quoting Hall, 664 F.3d at 462). 2 Plaintiffs
2 Although the Supreme Court has indicated that a district court’s determination of whether an econometric model is capable of proving antitrust damages is a legal finding rather than 14 USCA4 Appeal: 23-2165 Doc: 64 Filed: 02/12/2025 Pg: 15 of 18
concede that according to the model prepared by Dr. Grace, the plaintiffs’ only expert
witness, “there were no observable price increases during the conspiracy period” for 32%
of the All Payer Class. Opening Brief at 50. Given that the plaintiffs “lack expert testimony
showing impact and damages” for almost a third of class members, it was not clearly
erroneous for the district court to conclude that that portion of the class was uninjured. J.A.
2104, 2089. Nor did the district court err in declining to infer harm for this segment of the
class from evidence of market-wide harm, “including record evidence, admissions, [and]
market characteristics.” Reply Brief at 24. The district court carefully considered these
arguments and explained why they were insufficient to support an inference of injury for
the 32% of class members that could not demonstrate harm using Dr. Grace’s regressions.
See J.A. 2104–11.
The district court did not abuse its discretion in finding that the high share of class
members with no demonstrable injury presented a predominance problem. Rule 23(b)(3)
requires that “questions of law or fact common to class members predominate over any
questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). We cannot
conclude that the district court erred in finding that common questions of injury and
damages would not predominate where the plaintiffs’ only expert witness failed to show
harm for nearly one-third of the class. See Stafford, 123 F.4th at 681 (finding that “no
a finding of fact, see Comcast, 569 U.S. at 36 n.5, this is distinct from the discrete finding that the “All Payer Manufacturer class contains 2,533 uninjured members.” J.A. 2095. Nor does either party dispute that this is a factual finding. 15 USCA4 Appeal: 23-2165 Doc: 64 Filed: 02/12/2025 Pg: 16 of 18
question of law or fact is common” to class members who “may lack” the very claims at
the heart of the plaintiffs’ proposed class definitions).
And even among the class members that arguably did show injury, the
circumstances surrounding the payment of shipping fees varied substantially. Because, as
the district court noted, manufacturers were not contractually obligated to pay shipping
fees, J.A. 2055, the fees that manufacturers paid depended on company-specific policies.
J.A. 1387–88 (declaration of Inmar president Robert Carter) (stating that “payments were
made (or not made) according to written policies set by the manufacturers” and describing
individual agreements between CMS and certain large retailer customers to cap shipping
fees). Given the disparate payment decisions of manufacturers during the class period, the
district court was within its discretion to find class treatment inappropriate under the
circumstances presented here.
Finally, we note that attempting to define a class with such a high share of uninjured
members also raises Article III standing concerns. Going as they do to the existence of
judicial authority, such concerns are not to be ignored. In TransUnion LLC v. Ramirez, the
Supreme Court held that “every class member must have Article III standing in order to
recover individual damages.” 594 U.S. 413, 431 (2021). But the Court left open “the
distinct question whether every class member must demonstrate standing before a court
certifies a class.” Id. at 431 n.4; see Lab’y Corp. of Am. v. Davis, No. 24-304, 2025 WL
288305, at *1 (U.S. Jan. 24, 2025) (mem.) (granting certiorari to resolve “[w]hether a
federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3)
when some members of the proposed class lack any Article III injury”).
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Our circuit has also underscored the importance of standing concerns in class action
litigation. See Alig v. Rocket Mortg., LLC, --- F.4th. ---, 2025 WL 271563, at *6–7 (4th Cir.
Jan. 23, 2025). Some of our sister circuits have addressed the issue of class member
standing in conjunction with the requirements of Rule 23. See, e.g., Green-Cooper v.
Brinker Int’l, Inc., 73 F.4th 883, 891 (11th Cir. 2023) (emphasizing the importance of Rule
23’s predominance requirement post-TransUnion “because a district court must ultimately
weed out plaintiffs who do not have Article III standing before damages are awarded to a
class”). Whatever the resolution of the question posed in Laboratory Corp., the presence
of 32% of uninjured members in a proposed class strikes us as much too high. Just as the
question of under-inclusiveness was not a marginal one with respect to the Limited Payer
Class, so too the question of over-inclusiveness for the All Payer Class is not a close call.
In view of both the predominance and standing issues, it was not an abuse of discretion for
the district court to decline to certify the All Payer Class.
IV.
A class action is a compromise between opposing forces of individuality and
commonality. Because this procedural mechanism is an exception to the usual practice of
litigating cases for named parties only, a party seeking class certification must make a
positive showing that common issues will rule the day. The need for common issues to
predominate is an explicit and indispensable requirement for classes certified under Rule
23(b)(3) and underscores the issues with certifying the manufacturer classes proposed here.
We note in conclusion that manufacturers can propose antitrust class actions that
avoid the certification pitfalls delineated above. We are bound in this case, however, to
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address the particular classes that the plaintiffs proposed and that the district court
addressed and rejected. Under the circumstances, we cannot fault the trial court for its
decision. In view of the latitude afforded district courts in making class certification
rulings, we cannot rightly overturn what the district court did here as an abuse of discretion.
Accordingly, its judgment is hereby affirmed.
AFFIRMED