137 F.R.D. 677, 699 (N.D. Ga. 1991)
This action consists of over forty private actions that were consolidated for pretrial proceedings and transferred to this Court by the Judicial Panel on Multidistrict Litigation on November 2, 1990.1 Pursuant to Pretrial Order No. 2, plaintiffs filed their amended consolidated motion for class certification on January 3, 1991.2 Defendants submitted their opposition to plaintiffs’ motion on March 8, 1991, and included affidavits of defendants’ primary expert witnesses.3 Plaintiffs replied to defendants’ opposition on April 15, 1991, and included the affidavit of their chief expert witness, Dr. John C. Beyer.4
At defendants’ request, the Court ordered a limited evidentiary hearing on the amended motion for class certification to allow the parties the opportunity to present and cross-examine each others’ experts.5 The Court conducted a limited evidentiary hearing on the amended consolidated motion for class certification on June 5, 1991.6 Pursuant to the Court’s Order of May 7, 1991, plaintiffs submitted the written direct testimony of their experts, Dr. Beyer and Herbert B. Newberg, in support of their motion for class certification, and defendants submitted the written direct testimony of Drs. Franklin M. Fisher and Gary J. Dorman in opposition to the motion for class certification.7 Defendants then conducted a limited cross-examination of Mr. Newberg and an extensive cross-examination of Dr. Beyer.8
Plaintiffs seek to represent a class defined as all persons in the United States, who, during the period January 1, 1988, to the present, purchased domestic airline passenger tickets from one or more of the defendant airlines for air transportation on a single defendant airline to and/or from a defendant’s hub.9 The hubs referred to in the class definition are the airports at Pittsburgh, Baltimore, Dayton, Charlotte, Minneapolis/St. Paul, Memphis, Detroit, Houston, Newark, Atlanta, Cincinnati, Salt Lake City, Chicago (O’Hare), Denver, Dallas/Ft. Worth, Nashville, Raleigh/Durham, St. Louis, Philadelphia, Cleveland, San Jose, Syracuse, and Washington (Dulles).10 In its Order of May 7, 1991, the Court found that plaintiffs had satisfied the numerosity, typicality, and adequacy of representation requirements of Rule 23(a).11 The class action hearing of June 5-6, therefore, was limited to questions concerning certification under Rule 23(b)(3).12
Dr. Beyer testified that for any particular coach, first-class or discount fare, the individual fares of the defendants serving the city pair are usually identical.13 When differences in the defendants’ fares for a particular fare or code did occur, the deviations were only a few dollars in most instances.14 Plaintiffs submitted internal documents under seal at the evidentiary hearing, largely produced by defendants, in support of defendants’ alleged aversion to price competition and desire to avoid price competition at each others’ hubs.15 Plaintiffs also submitted under seal several internal documents of defendants referring to responses by the airline defendants to what are described as industry proposals concerning fares.16 Plaintiffs’ preliminary plan for the administration of class member claims estimates that the class will number close to 12.5 million purchasers.17
Whether questions of law or fact common to the members of the class predominate over any questions affecting only individual members?18
Under Federal Rule of Civil Procedure 23(b)(3), a class action may be maintained if the court finds that the 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.19 To determine predominance, the court must identify the substantive law controlling the outcome and examine whether plaintiffs' proposed proof of the antitrust claim will be common to the class as a whole.
Yes. The court applied the rule to the established facts by noting that Dr. Beyer's testimony established a structure in airline pricing where fares for particular types are usually identical across defendants, with deviations of only a few dollars in most instances.20 Plaintiffs presented documents under seal showing a common nucleus of operative facts regarding the alleged conspiracy not to compete at hubs and use of the ATPC system to monitor fares.21 The evidence of conspiracy, impact through yield analysis showing higher yields on class traffic, and formulaic methodologies for damages all constitute generalized proof common to the class.22
The product is fungible air passenger service.23 The conspiracy would impact all class members uniformly by maintaining inflated base prices from which fares were negotiated or discounted.24
Common questions predominate, satisfying the predominance requirement for class certification under Rule 23(b)(3).25
Whether a class action is superior to other available methods for the fair and efficient adjudication of the controversy?26
Under Federal Rule of Civil Procedure 23(b)(3), the court must find that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.27 The court considers factors such as the interest of members in individually controlling separate actions, the extent of other litigation, the desirability of concentrating litigation in the particular forum, and the difficulties likely to be encountered in the management of the action.28
Yes. Applying the rule to the facts, the court determined that individual claims are so small that the cost of individual litigation would exceed their value, making a class action the only fair method.29 The class size of approximately 12.5 million purchasers does not render the action unmanageable.30 Formulaic approaches to damages exist.31
Modern technology like computers can handle the data.32 Notice can be accomplished through publication in national publications and hub city newspapers as well as in airline magazines and at ticket offices.33 This satisfies the best notice practicable under the circumstances without requiring individual notice to all since identities are not readily known from defendants' records.34
The class action is superior, satisfying Rule 23(b)(3).35