Paper Systems Inc. v. Mitsubishi Corp.

193 F.R.D. 601, 2000 U.S. Dist. LEXIS 6548, 2000 WL 575479
CourtDistrict Court, E.D. Wisconsin
DecidedMay 5, 2000
DocketNos. 96-C-959, 97-C-412, 97-C-508
StatusPublished
Cited by21 cases

This text of 193 F.R.D. 601 (Paper Systems Inc. v. Mitsubishi Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paper Systems Inc. v. Mitsubishi Corp., 193 F.R.D. 601, 2000 U.S. Dist. LEXIS 6548, 2000 WL 575479 (E.D. Wis. 2000).

Opinion

DECISION AND ORDER

ADELMAN, District Judge.

In these three consolidated antitrust actions, plaintiffs contend that sellers of heat-sensitive facsimile paper conspired to fix prices from February 1990 through March 1992, in violation of the Sherman Act, 15 U.S.C. § 1. Suit is brought under § 4 of the Clayton Act, 15 U.S.C. § 15. Plaintiffs seek to bring the suit as a class action under Rule 23 of the Federal Rules of Civil Procedure. Currently before me is plaintiffs’ motion to certify a proposed class.

I. FACTUAL AND PROCEDURAL BACKGROUND

At the time these complaints were filed in 1996, thermal facsimile paper was a $120 million per year industry in the United States. Thermal facsimile paper is covered with a chemical coating that produces an image when heat is transferred from a print head. The paper is manufactured in “jumbo rolls” weighing up to 2,000 pounds. The jumbo rolls are then sold by manufacturers and distributors to converters. The converters cut the jumbo rolls into smaller rolls that are then sold to the retail market. The end users are primarily small businesses and individuals owning inexpensive facsimile machines that do not use plain paper, as well as users of certain medical printing and other equipment. Plaintiffs and members of the proposed class are converters. (Paper Sys. Compl. ¶¶ 24-25.) Defendants include both thermal facsimile manufacturers and distributors. Plaintiffs allege that both the manufacturers and distributors participated in the price-fixing conspiracy. Previously the Department of Justice prosecuted defendants in this case for violation of the antitrust laws for some of the conduct alleged here. According to defendant Appleton Papers, several other defendants pled guilty, but it was acquitted.

The case was randomly assigned to Magistrate Judge Patricia J. Gorence but the parties did not consent to full magistrate judge jurisdiction. Pursuant to plaintiffs’ motion, Magistrate Judge Gorence recommended that the proposed class be certified. Defendants objected to the recommendation. I now address the issue. The standard of review is de novo. See 28 U.S.C. § 636(b)(1)(C).

II. ANALYSIS

It is often observed that “the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action.” General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)) (internal quotation marks omitted). Nonetheless, the pre[604]*604ferred procedure is for the district court to dispose of a motion for class certification before ruling on the merits of the case. See Mira v. Nuclear Measurements Corp., 107 F.3d 466, 475 (7th Cir.1997). Discovery frequently is necessary to determine whether the class should be certified. See Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir.1993).

Pursuant to Fed.R.Civ.P. 23, plaintiffs must satisfy all four subsections of Rule 23(a), and one subsection of Rule 23(b), here, Rule 23(b)(2). Rule 23(a) provides:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Rule 23(b)(2) requires “that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” I am required to conduct a rigorous analysis to ensure that the prerequisites of Rule 23 are satisfied. See Falcon, 457 U.S. at 161, 102 S.Ct. 2364.

The plaintiffs’ modified proposed class is as follows:

All individuals and entities who, during the period February 1, 1990 through March 31, 1992, purchased jumbo roll thermal facsimile paper in.the United States directly from one or more of the defendants, but excluding from the class defendants, Honshu paper Co., Ltd., Japan Pulp & Paper Co., Ltd., Mitsui & Co., Ltd., Japan Pulp & Paper(U.S.A.) Corporation, Mitsui & Co. (U.S.A.) Inc. and Elof Hansson K.K.

(Pls.’ Resp. to Ct.’s Request for Status of Mot’n for Prelim. Approval of Partial Settlement & Mot’ns for Relief from Scheduling Ord. & for Certification of Modified Class (1/14/98) at 4.) I will refer to the period from February 1, 1990 to March 31, 1992 as “the class period.”

A. Rule 23(a)(1): Numerosity and Impracticability of Joinder

The number of members in the proposed class is an important but not the only focus of inquiry under Rule 23(a)(1); courts have certified very small classes, and declined to certify much larger classes. Compare Manning v. Princeton Consumer Discount Co., 390 F.Supp. 320, 324 (E.D.Pa. 1975) (certifying class of 14 members) with Minersville Coal Co. v. Anthracite Export Ass’n, 55 F.R.D. 426, 428 (M.D.Pa.1971) (declining to certify class of 330 members). The Supreme Court has observed that potential claimants in antitrust actions will often be so numerous that joinder of all is impracticable and that a class action will therefore be necessary. See Illinois Brick Co. v. Illinois, 431 U.S. 720, 739, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). A class with more than forty members is generally sufficiently numerous that joinder is considered impracticable. See Chandler v. Southwest Jeep-Eagle, 162 F.R.D. 302, 307 (N.D.Ill.1995); Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D.Cal.1988) (“As a general rule, classes of 20 are too small, classes of 20-40 may or may not be big enough depending on the circumstances of each case, and classes of 40 or more are numerous enough.”). The proposed class in this case would consist of between 74 and 100 members, suggesting that, absent persuasive reasons to the contrary, joinder should be considered impracticable.

A second factor pointing towards certification arises when the potential class members do' not reside in the same judicial district. See Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D.Ill.1986) (finding that because the twenty-nine proposed class members resided in nine states, joinder was impracticable).

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Bluebook (online)
193 F.R.D. 601, 2000 U.S. Dist. LEXIS 6548, 2000 WL 575479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paper-systems-inc-v-mitsubishi-corp-wied-2000.