Case 3:14-cv-03264-JD Document 2231 Filed 11/14/18 Page 1 of 18
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE CAPACITORS ANTITRUST
`LITIGATION (NO. III)
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`Case No. 17-md-02801-JD
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`ORDER RE DIRECT PURCHASER
`PLAINTIFFS’ CLASS
`CERTIFICATION MOTION AND
`DEFENDANTS’ DAUBERT MOTIONS
`TO EXCLUDE EXPERT OPINIONS
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`Re: Dkt. Nos. 1693, 1679, 1685
`(Case No. 14-cv-03264-JD)
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`The plaintiffs in this multi-district antitrust litigation are putative classes of direct and
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`indirect purchasers, along with a few companies that opted out of the direct purchasers group to
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`pursue claims on their own. The core allegation is that defendants profited from a long-running,
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`global price-fixing conspiracy in the capacitor industry. This order resolves the direct purchaser
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`plaintiffs’ class certification motion and defendants’ Daubert motions to exclude plaintiffs’ expert
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`opinions.
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`BACKGROUND
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`The relevant product is the capacitor, an electronic component used to temporarily store
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`and even out the flow of electrical energy. Capacitors are essential for the functionality of
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`virtually all electrical circuits. Everything that runs on electricity usually has at least one capacitor
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`in it, and complex devices like cell phones typically have hundreds.
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`Capacitors come in different types and are categorized by the material used in the
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`dielectric, which is the insulating layer between a capacitor’s chargeable plates. Capacitor
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`dielectrics are typically made out of aluminum, tantalum, plastic film or ceramic material.
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`Aluminum and tantalum capacitors are further classified as electrolytic capacitors, which are
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`polarized. Electrostatic capacitors are not polarized.
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`Case 3:14-cv-03264-JD Document 2231 Filed 11/14/18 Page 2 of 18
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`The direct purchaser plaintiffs (DPPs) seeking certification bought standalone capacitors
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`directly from one or more of the defendants. The four named direct purchaser plaintiffs are Chip-
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`Tech, Ltd., Dependable Component Supply Corporation, eIQ Energy, Inc., and Walker
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`Component Group, Inc. All are United States companies. The defendants are for the most part
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`overseas capacitors manufacturers in Japan and other parts of East Asia. The DPPs allege a single
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`conspiracy among the defendant electrolytic capacitor manufacturers and film capacitor
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`manufacturers to fix prices and suppress competition in the markets for aluminum and tantalum
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`electrolytic capacitors, and film capacitors.
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`The DPPs contend that the defendants, which number in the dozens, effectuated the
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`conspiracy through regular cartel meetings. These meetings ranged from informal group
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`communications by email and telephone to formal gatherings of senior executives in Asia, all for
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`the purpose of illegally colluding on capacitor pricing and production. To illustrate the level of
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`collusion among the conspirators, the DPPs say that the presidents and other high-level executives
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`at the electrolytic manufacturers convened “presidents’ meetings” and “joint committee meetings”
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`two or three times a year to coordinate on pricing practices. Dkt. No. 1766-1 (“Mot.”) at 7. The
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`DPPs also point to frequent meetings and interactions between less senior personnel. Id. at 7-8.
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`Film capacitor meetings are alleged to have been held approximately six times a year. Id. The
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`conspiracy meetings regularly included a social component of golf outings, dinner and drinks,
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`which provided additional opportunities for collusion. Id. DPPs contend that the conspiratorial
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`effort was successful, and that the defendants artificially raised the prices of capacitors that were
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`billed or shipped to the United States.
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`As this domestic civil action has unfolded, several parallel government investigations have
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`been underway in overseas jurisdictions. China’s National Development and Reform
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`Commission, the Fair Trade Commissions of Japan, South Korea, and Taiwan, the competition
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`commission of Singapore, Brazil’s Administrative Council for Economic Defense, and the
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`European Commission’s competition authority have all pursued inquiries into price fixing for
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`Case 3:14-cv-03264-JD Document 2231 Filed 11/14/18 Page 3 of 18
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`capacitors. Dkt. No. 1766-2 (“Saveri Decl.”), Ex. 1 ¶ 18.1 Several of the investigations have
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`resulted in the imposition of fines on various defendants.
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`In the United States, the Department of Justice brought parallel criminal prosecutions for
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`the price-fixing conspiracy against a number of the defendants in this action and their individual
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`employees. This Court is presiding over the parallel criminal cases. To date, the Court has taken
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`guilty pleas from defendants NEC Tokin Corporation (Case No. 15-cr-426), Hitachi Chemical
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`Co., Ltd. (Case No. 16-cr-180), Elna Co., Ltd. (Case No. 16-cr-365), Holy Stone Holdings Co.
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`Ltd. (Case No. 16-cr-366), Rubycon Corporation (Case No. 16-cr-367), Nichicon Corporation
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`(Case No. 17-cr-368), Matsuo Electric Co. Ltd. (Case No. 17-cr-73), and Nippon Chemi-Con
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`Corporation (Case No. 17-cr-540). The Court sentenced each of these corporations to fines
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`ranging from $600,000 to $60 million, along with a condition to implement detailed compliance
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`programs to prevent future price fixing and other anti-competitive conduct. Two individual
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`employees of defendant companies, Satoshi Okubo (Case No. 17-cr-74) and Tokuo Tatai (Case
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`No. 15-cr-163), also pled guilty and were each sentenced to a term of imprisonment of one year
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`and a day.
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`I.
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`LEGAL STANDARDS
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`DISCUSSION
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`The class action is “an exception to the usual rule that litigation is conducted by and on
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`behalf of the individual named parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)
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`(quotations omitted). To proceed under this special exception, the party seeking class
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`certification must satisfy through evidentiary proof, and not just through pleading, that all of the
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`requirements of Federal Rule of Civil Procedure 23 have been met. Id. That includes each of the
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`four requirements of Rule 23(a) -- “sufficiently numerous parties, common questions of law or
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`fact, typicality of claims or defenses, and adequacy of representation” -- and at least one of the
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`provisions of Rule 23(b). Id. The DPPs seek certification under Rule 23(b)(3), which is
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`1 The corrected version of the declaration can be found at Dkt. No. 1766-2, and unless otherwise
`noted, all “Ex.” references in this order are to exhibits to that declaration. The exhibits themselves
`were filed as attachments to Dkt. No. 1693.
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`appropriate when “questions of law or fact common to class members predominate over any
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`questions affecting only individual members,” and a class action is “superior to other available
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`methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
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`For both the Rule 23(a) and Rule 23(b) requirements, the Court’s analysis must be
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`“rigorous” and may “entail some overlap with the merits of the plaintiff’s underlying claim.”
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`Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 465-66 (2013); see also Wal-Mart
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`Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011); Comcast, 569 U.S. at 33-34. This is because
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`“the class determination generally involves considerations that are enmeshed in the factual and
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`legal issues comprising the plaintiff’s cause of action.” Id. (quotations omitted). But the rigorous
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`analysis must not be confused with a “license to engage in free-ranging merits inquiries at the
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`certification stage”; merits questions should “be considered to the extent -- but only to the extent --
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`that they are relevant to determining whether the Rule 23 prerequisites for class certification are
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`satisfied.” Amgen, 568 U.S. at 466.
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`The purpose of Rule 23 is “‘to select the metho[d] best suited to adjudication of the
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`controversy fairly and efficiently.’” Alcantar v. Hobart Service, 800 F.3d 1047, 1053 (9th Cir.
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`2015) (quoting Amgen, 568 U.S. at 460, alteration in original). Consequently, class certification is
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`not summary judgment by another name. The plaintiffs’ burden is to present enough evidence to
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`warrant adjudication of their claims on a class basis, not to win their case.
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`For the commonality inquiry under Rule 23(a)(2), what matters “is not the raising of
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`common ‘questions’ . . . but rather the capacity of a classwide proceeding to generate common
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`answers.” Wal-Mart, 564 U.S. at 350 (quotations omitted, emphasis in original). Plaintiffs must
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`show that their claims “depend upon a common contention” that is “of such a nature that it is
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`capable of classwide resolution -- which means that determination of its truth or falsity will
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`resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. For
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`Rule 23(b)(3), plaintiffs must also show that the proposed class is “‘sufficiently cohesive to
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`warrant adjudication by representation’” in that common issues predominate over questions
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`affecting only individual class members. Amgen, 568 U.S. at 469 (quoting Amchem Products, Inc.
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`v. Windsor, 521 U.S. 591, 623 (1997)). Plaintiffs need not prove that each element of their claim
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`is susceptible to classwide proof. Id. The “more important questions apt to drive the resolution of
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`the litigation are given more weight in the predominance analysis over individualized questions
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`which are of considerably less significance to the claims of the class.” Torres v. Mercer Canyons
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`Inc., 835 F.3d 1125, 1134 (9th Cir. 2016). Rule 23(b)(3) permits certification when “one or more
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`of the central issues in the action are common to the class and can be said to predominate, . . . even
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`though other important matters will have to be tried separately, such as damages or some
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`affirmative defenses peculiar to some individual class members.” Tyson Foods, Inc. v.
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`Bouaphakeo, 136 S.Ct. 1036, 1045 (2016) (internal quotations omitted). It is well-established that
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`“damage calculations alone cannot defeat certification,” Yokoyama v. Midland Nat’l Life Ins. Co.,
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`594 F.3d 1087, 1094 (9th Cir. 2010), and “the presence of individualized damages cannot, by
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`itself, defeat class certification under Rule 23(b)(3).” Leyva v. Medline Indus. Inc., 716 F.3d 510,
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`514 (9th Cir. 2013).
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`This Court has discussed in other orders the fuzzy line separating the Rule 23(a)(2)
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`commonality inquiry and the Rule 23(b)(3) predominance determination. See Ochoa v.
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`McDonald’s Corp., No. 3:14-cv-02098-JD, 2016 WL 3648550, at *5 (N.D. Cal. July 7, 2016).
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`Our Circuit has recognized that the United States Supreme Court’s decision in Wal-Mart
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`established a “‘rigorous’ commonality standard” under Rule 23(a)(2). Leyva, 716 F.3d at 512.
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`Courts have consequently found it appropriate to assess Rule 23(a)(2) commonality and Rule
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`23(b)(3) predominance together. See, e.g., Just Film, Inc. v. Buono, 847 F.3d 1108, 1120-21 (9th
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`Cir. 2017). That is the approach the Court takes here, while being mindful of the observation that
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`“Rule 23(b)(3)’s predominance criterion is even more demanding than Rule 23(a).” Comcast, 569
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`U.S. at 34.
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`In addition to the DPPs’ class certification motion, the Court has before it defendants’
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`motions to exclude certain of DPPs’ experts’ testimony offered in support of class certification.
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`The motions were made pursuant to Rules 104(a) and 702 of the Federal Rules of Evidence, as
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`well as Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The analysis under
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`Daubert is “flexible” and there is no “definitive checklist or test.” 509 U.S. at 593-54. The two
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`touchstones for admissibility are reliability and relevancy. Id. at 599.
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`Case 3:14-cv-03264-JD Document 2231 Filed 11/14/18 Page 6 of 18
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`The parties’ Daubert and Rule 23 arguments often overlapped, and so the Court’s Daubert
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`analysis is woven into the class certification analysis, with any remaining Daubert issues taken up
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`at the end of the order.
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`II.
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`DPPS’ CLASS CERTIFICATION MOTION
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`The DPPs seek to certify this class:
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`All persons that purchased capacitors directly from any of the
`Defendant Entities from January 1, 2002 to December 31, 2013 (the
`“Class Period”), where such persons are:
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`(a) inside the United States and were billed or invoiced for
`capacitors by one or more Defendant Entities during the Class
`Period (i.e., where capacitors were “billed to” persons within the
`United States); or
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`(b) outside the United States and were billed or invoiced for
`capacitors by one or more Defendant Entities during the Class
`Period, where such capacitors were imported into the United States
`by one or more Defendant Entities (i.e., where the capacitors were
`“billed to” persons outside the United States but “shipped to”
`persons within the United States).
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`Mot. at i.
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`DPPs clarify that “capacitors” as used in the proposed definition include aluminum,
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`tantalum and film capacitors. Id. n.1. The defendant entities are AVX Corporation; ELNA Co.,
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`Ltd.; ELNA America Inc.; Holy Stone Enterprise Co., Ltd.; Milestone Global Technology, Inc.
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`(d/b/a HolyStone International); Vishay Polytech Co., Ltd.; KEMET Corporation; KEMET
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`Electronics Corporation; Matsuo Electric Co., Ltd.; Nichicon Corporation; Nichicon (America)
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`Corporation; Nippon Chemi-Con Corporation; United Chemi-Con, Inc.; Nissei Electric Co., Ltd.;
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`Panasonic Corporation; Panasonic Corporation of North America; SANYO Electric Co., Ltd.;
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`SANYO North America Corporation; Rubycon Corporation; Rubycon America Inc.; Shinyei
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`Kaisha; Shinyei Technology Co., Ltd.; Shinyei Capacitor Co., Ltd.; Shinyei Corporation of
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`America, Inc.; Shizuki Electric Co., Ltd.; Taitsu Corporation; Taitsu America, Inc.; and TOSHIN
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`KOGYO Co., Ltd. Id. n.2.2 The “billed to” or “shipped to” the United States limitation in the
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`class definition is undoubtedly related to the DPPs’ stipulation to accept the Court’s prior FTAIA
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`2 The Court eliminated from DPPs’ list those defendants that are marked as “settled/dismissed” in
`the most recent status update provided to the Court. Dkt. No. 2226.
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`Case 3:14-cv-03264-JD Document 2231 Filed 11/14/18 Page 7 of 18
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`ruling and to limit their case only to those categories of transactions the Court ruled were properly
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`in the case. Dkt. Nos. 1302, 1421.
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`A.
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`Numerosity (23(a)(1))
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`Rule 23(a)(1) requires that the proposed class be “so numerous that joinder of all members
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`is impracticable.” Fed. R. Civ. P. 23(a)(1). Plaintiffs state that the proposed class contains
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`“almost two thousand members.” Mot. at 18. That sizable number, and the facts and
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`circumstances of this case, indicate that joinder of all members would be impracticable. The
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`numerosity requirement is not contested by the defendants and the Court finds it satisfied.
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`B.
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`Commonality (23(a)(2)) and Predominance (23(b)(3))
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`Defendants do not contest commonality. See Dkt. No. 1745 (“Opp.”). Their main
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`challenge is to predominance, and for that inquiry, the Court is guided by the elements of the
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`underlying cause of action. Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809
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`(2011). There is just one here, for fixing prices in violation of the Sherman Act, 15 U.S.C. § 1.
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`Dkt. No. 1831 ¶¶ 433-43. To prevail on that claim, DPPs will have to establish an “antitrust
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`violation” (here, the alleged conspiracy), “antitrust impact,” and “the fact of damages.” Comcast,
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`569 U.S. at 42 (Ginsburg, J., and Breyer, J., dissenting); see also In re Cathode Ray Tube (CRT)
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`Antitrust Litigation, 308 F.R.D. 606, 620 (N.D. Cal. 2015) (elements of price-fixing claim are
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`“(1) a conspiracy to fix prices in violation of the antitrust laws (‘conspiracy’); (2) an antitrust
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`injury -- i.e., the impact of the defendants’ unlawful activity (‘impact’); and (3) damages caused
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`by the antitrust violations (‘damages’).”).
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`1.
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`Conspiracy
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`Whether defendants entered into a price-fixing conspiracy is of course a fundamental
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`liability issue in this case. DPPs do not need to prove the fact of a conspiracy for certification, but
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`only that the issue is common to the class and “is capable of classwide resolution . . . in one
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`stroke.” Wal-Mart, 564 U.S. at 350. This can be a relatively straightforward task because, as
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`many courts have noted, the claim of a conspiracy to fix prices inherently lends itself to a finding
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`of commonality and predominance, even when the market involves different products and prices.
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`In re Urethane Antitrust Litigation, 768 F.3d 1245, 1254-56 (10th Cir. 2014).
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`There is no doubt that the question of a conspiracy is a common issue under Rule 23(a),
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`which defendants do not deny. The dispute here is whether the DPPs have shown under Rule
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`23(b) that the existence of a conspiracy to fix prices is amendable to classwide proof. The record
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`before the Court establishes that they have.
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`To a considerable degree, the fact of a conspiracy to fix prices has already been established
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`by the criminal pleas. Eight corporations have pled guilty to conspiring, and accepted substantial
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`criminal fines for their collusion. Two individuals have also pled guilty and been sentenced to
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`time in a federal prison for their related conduct. In their plea agreements, defendants admitted
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`they had “participated in a conspiracy . . . the primary purpose of which was to fix prices and rig
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`bids of certain electrolytic capacitors sold in the United States and elsewhere.” See, e.g., Dkt.
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`No. 9-2 at 3 (¶ 4(a)) in Case No. 16-cr-366 (Holy Stone); see also Mot. at 5 & n.8 (listing
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`additional plea agreements). In addition, defendant Panasonic has applied for, and received on a
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`conditional basis, leniency from the United States government under the Antitrust Criminal
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`Penalty Enforcement and Reform Act (“ACPERA”). Plaintiffs state, without objection by
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`defendants, that Panasonic must have admitted its “participation in a criminal antitrust violation.”
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`Id. at 4. It is worth noting that other jurisdictions outside the United States have also imposed
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`fines for the conspiracy.
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`But the DPPs do not rely on the guilty pleas alone. They also present a substantial
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`quantum of emails, reports, and other evidence harvested in discovery. For example, DPPs cite to
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`a core set of 141 documents as “common documentary evidence and data confirming defendants’
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`illegal conduct” that “reveals defendants’ participation in hundreds of illegal cartel meetings and
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`numerous illegal bilateral and multilateral meetings and communications.” Mot. at 3-4. The
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`documents show defendants discussing their goals of “restrain[ing] useless competition” and
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`“striv[ing] to sustain prices by cooperating,” Ex. 96, and exchanging information “in order to
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`ensure all makers’ profit generation and maintenance of [a] healthy market price.” Ex. 85. They
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`also show actual exchanges of competitively sensitive information such as pricing on capacitor
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`sales. See, e.g., Exs. 10, 12, 15, 30, 35. Many other documents evidence frequent, formal and
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`informal meetings among defendants. See, e.g., Exs. 9, 17, 20, 35, 36, 37, 38, 39, 59.
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`This record demonstrates that plaintiffs have enough common evidence to support
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`classwide treatment of their conspiracy claim. Defendants have not identified any matters that
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`would require a degree of individualized proof sufficient to defeat the DPPs’ showing.
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`Commonality and predominance are established for the element of a conspiracy.
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`2.
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`Classwide Injury or Impact
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`The next question is whether plaintiffs can prove impact through classwide proof.
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`Defendants treat this as a major battleground and focus their opposition on Daubert challenges to
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`the plaintiffs’ experts, Drs. James T. McClave and J. Douglas Zona.3 Dr. McClave is an
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`econometrician and statistician, and Dr. Zona an applied economist. Dr. McClave is plaintiffs’
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`primary expert on the issue of impact, see Mot. at 14-15, and the majority of defendants’
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`challenges are directed to his analysis. Defendants do not differentiate their challenges between
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`classwide impact and damages. See, e.g., Opp. at 8 (“DPPs cannot show predominance because
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`their proposed econometric models are incapable of reliable proving class-wide impact or
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`damages”). But the fact of injury is different from the amount of injury, and impact and damages
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`should be analyzed separately, which the Court will do.
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`The appropriate concerns at this stage are not about the quality of the data Dr. McClave
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`used or whether he included all the potential variables in his model. Challenges along those lines
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`do not go to the admissibility of his opinions, but rather to matters of weight and probative value
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`for a jury to evaluate. Urethane, 768 F.3d at 1261, 1263. Many of defendants’ attacks miss this
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`salient point by criticizing what Dr. McClave did or didn’t take into account in running his
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`analysis. Those observations may be grist for a good cross-examination at trial, but they do not
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`play a material role in deciding whether Dr. McClave’s work should be admitted under Rule 702.
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`See Obrey v. Johnson, 400 F.3d 691, 695-96 (9th Cir. 2005) (a “regression analysis does not
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`become inadmissible as evidence simply because it does not include every variable that is
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`quantifiable and may be relevant to the question presented . . . [I]t is for the finder of fact to
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`3 At the certification motion hearing, the Court mused out loud about the possibility of a further
`evidentiary proceeding. After spending a substantial amount of time reviewing the reports and
`Daubert arguments, the Court finds that the motions can all be resolved on the papers, and that the
`parties can be spared the time and expense of a further hearing.
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`consider the variables that have been left out of an analysis, and the reasons given for the
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`omissions, and then to determine the weight to accord the study’s results”) (internal citation
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`omitted).
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`The proper question is whether Dr. McClave practiced a generally accepted method for
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`determining antitrust impact, or whether his work was “junk science” akin to predicting
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`criminality by feeling the bumps on a person’s head. General Electric Co. v. Joiner, 522 U.S.
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`136, 153 n.6 (1997). The materials presented to the Court show that his work is sound and
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`reliable, and consistent with established econometric methods.
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`To start, Dr. McClave used a multiple regression approach that is a widely used
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`econometric technique for determining whether prices were higher during a class period than they
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`otherwise would have been without anti-competitive conduct. See, e.g., Urethane, 768 F.3d at
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`1260-61; Fond Du Lac Bumper Exchange, Inc. v. Jui Li Enterprise Co., Ltd., No. 09-cv-0852,
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`2016 WL 3579953, at *9 (E.D. Wis. 2016); In re Graphics Processing Units Antitrust Litigation,
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`253 F.R.D. 478, 495-96 (N.D. Cal. 2008) (“GPU”). Multiple regression analysis is a type of
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`statistical tool that tests the relationship between dependent and independent variables to
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`determine how the variables might impact each other or are causally related. Urethane, 768 F.3d
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`at 1260-61; GPU, 253 F.R.D. at 493.
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`A fair reading of Dr. McClave’s report leaves no doubt that he performed a multiple
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`regression analysis in a reliable and professionally accepted manner. His analysis compared the
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`prices charged during the period when the conspiracy allegedly operated (the “class period”) with
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`prices charged before or after the class period, when the market was unaffected by the alleged
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`conspiracy (“benchmark” period). He called the difference between these prices the “overcharge.”
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`Saveri Decl., Ex. 2 (“McClave Opening”) at 4. To perform this analysis, he constructed a
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`transaction database, based on the transaction data produced by defendants and comprising over
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`seven million individual transactions. Id. at 3. To test whether, “while accounting for factors that
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`determine prices in a competitive market, prices [were] elevated above their competitive levels as
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`a result of the alleged conspiratorial behavior,” id. at 5, he included explanatory variables such as
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`those based on the cost of the raw material used for the capacitor’s dialectric, and demand. Id. at
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`Case 3:14-cv-03264-JD Document 2231 Filed 11/14/18 Page 11 of 18
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`6-7. He included a time variable, “to account for price-related factors not captured explicitly by
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`the other supply and demand variables,” as well as an “indicator or ‘dummy’ variable” for each
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`type of capacitor at issue in DPPs’ case. Id. at 5-7.
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`He concluded that his model accounted “for nearly all -- more than 98% -- of the
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`variability in capacitor transaction prices,” and found the “estimates of all three conspiracy period
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`indicators” to be “positive and statistically significant,” indicating that “aluminum product prices
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`were elevated by 9.8%, tantalum product prices by 7.5%, and film product prices by 7.2%.” Id. at
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`8. He takes these results as “empirical evidence” pointing to “an effective conspiracy that caused
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`plaintiffs to pay supracompetitive prices.” Id. He additionally opined that his model results lead
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`to the “inference that all, or nearly all, class members are impacted.” Id. He stated that the
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`estimates provided by his multiple regression model could be used to calculate aggregate class
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`overcharges during the class period as follows:
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`Capacitor Type
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`Revenue
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`Overcharge Percent
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`Overcharges
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`Aluminum
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`$3,062,325,188
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`Film
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`Tantalum
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`TOTAL
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`Id. at 9.
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`$382,759,263
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`$3,107,828,081
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`$6,552,912,532
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`8.9%
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`6.7%
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`7.0%
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`$272,546,942
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`$25,644,871
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`$217,547,966
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`$515,739,778
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`To be sure, defendants dispute Dr. McClave’s conclusions, but they do not identify any
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`methodological flaws sufficiently grave to bar admission of his work. They say, for example, that
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`the data he used was “fatally deficient and unrepresentative,” but it appears that Dr. McClave
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`analyzed all reliable data that was produced by defendants and provided to him, see McClave
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`Opening at 3 & n.5, including the non-trivial sum of over seven million individual transactions.
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`And while defendants argue that Dr. McClave failed to account for rebates and discounts on a
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`classwide basis, Dr. McClave’s report itself states that “[p]rice adjustments were taken into
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`account when sufficient information was provided to relate the adjustment to the original
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`transactions.” Id. at 3 n.6. In any event, these challenges again go to weight and not admissibility.
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`Defendants press the point that Dr. McClave’s model is based on the “assumption that
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`every purchaser of each of the three different types of capacitors at issue paid the same uniform
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`overcharge (7.2% for film capacitors, 9.8% for aluminum capacitors, and 7.5% for tantalum
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`capacitors) for all purchases during the twelve-year class period.” Opp. at 4. Defendants say that
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`while Dr. McClave claimed to have done a “customer-by-customer” analysis, this was nothing
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`more than a comparison of each customer’s actual prices with the “but-for” predicted prices for
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`each customer, where the “but-for” price was based purely on the 8.9%, 6.7%, and 7.0%
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`respective aggregate overcharge percentages he calculated for aluminum, film and tantalum
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`capacitors over the entire 12-year alleged conspiracy period. They also contend that
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`Dr. McClave’s method “did not calculate separate overcharges for class members on an individual
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`basis.” Opp. at 4; see also Dkt. No. 1745-1 (“Papendick Decl.”), Ex. 1 (“McClave depo excerpt”)
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`at 137:21-139:12 (“customer-specific” calculation uses uniform overcharge percentage for that
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`product and compares that to actual prices paid; but-for overcharge percentage is never varied by
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`customer).
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`Even if these criticisms were accepted for the sake of discussion, they do not warrant
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`exclusion of Dr. McClave’s work on Daubert grounds, or a denial of the DPPs’ certification
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`motion. That is because defendants demand too much. In effect, they argue that DPPs must prove
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`that each and every putative class member was harmed before certification can be granted. But
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`Rule 23 does not require proof of impact on each purchaser before a class can be certified. Kleen
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`Products LLC v. International Paper Co., 831 F.3d 919, 927 (7th Cir. 2016). Rule 702 and
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`Daubert do not require what Rule 23 does not. In addition, the prevailing view, which the Court
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`agrees with, is that “price-fixing affects all market participants, creating an inference of class-wide
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`impact even when prices are individually negotiated.” Urethane, 768 F.3d at 1254. Setting the
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`certification bar at the extreme height defendants propose would almost certainly kill off most
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`antitrust class actions well before an adjudication of the merits of the case.
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`What really matters “is whether the class can point to common proof that will establish
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`antitrust injury (in the form of cartel pricing here) on a classwide basis.” Kleen, 831 F.3d at 927.
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`On this point, if DPPs had relied solely on Dr. McClave’s analysis as common proof of classwide
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`Case 3:14-cv-03264-JD Document 2231 Filed 11/14/18 Page 13 of 18
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`impact, defendants’ argument might pack some punch. But DPPs present much more than
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`Dr