Anderson Contracting, Inc. Vs. Dsm Copolymers, Inc. ( 2009 )

IN THE SUPREME COURT OF IOWA
No. 07–0722
Filed December 18, 2009
ANDERSON CONTRACTING, INC.,
Appellee,
vs.
DSM COPOLYMERS, INC.,
Appellant,
BAYER AG; BAYER POLYMERS, L.L.C.
n/k/a BAYER MATERIALSCIENCE, L.L.C.;
BAYER CORPORATION; CROMPTON
CORPORATION, UNIROYAL CHEMICAL
CORPORATION, INC., n/k/a CROMPTON
MANUFACTURING COMPANY, INC., THE DOW CHEMICAL
COMPANY; E.I. DUPONT DE NEMOURS & COMPANY;
DUPONT DOW ELASTOMERS, L.L.C.; DSM
ELASTOMERS EUROPE B.V.; and
EXXON MOBIL CHEMICAL CORPORATION,
d/b/a EXXON MOBIL, INC.
Defendants.
Appeal from the Iowa District Court for Polk County, Richard G.
Blane II, Judge.
Defendant manufacturer of synthetic rubber appeals from the
district court’s certification of a class action. AFFIRMED.
Edward W. Remsburg of Ahlers & Cooney, P.C., Des Moines,
Andrew S. Marovitz and Britt M. Miller of Mayer Brown LLP, Chicago, IL,
and Richard J. Favretto, Gary A. Winters, and Andrew A. Nicely of Mayer
Brown LLP, Washington, D.C., for appellant.
2
Joseph R. Gunderson and Jason D. Walke of Gunderson, Sharp &
Walke, LLP, Des Moines, Rex A. Sharp of Gunderson, Sharp & Walke,
LLP, Prairie Village, KS, and Isaac L. Diel of Sharp McQueen, PA,
Overland Park, KS, for appellee.
3
HECHT, Justice.
A manufacturer appeals from the district court’s order certifying a
class in an action alleging price fixing of the market for ethylene
propylene diene monomer (EPDM). We affirm.
I. Factual and Procedural Background.
Anderson Contracting, Inc. (Anderson), an Iowa corporation that
performs roofing work, brought suit against various manufacturers,
marketers, and distributors of EPDM 1 (EPDM manufacturers) for
violations of the Iowa Competition Law.
EPDM is a synthetic rubber composed of ethylene, propylene, and
diene monomers. EPDM is produced in various grades which exhibit
different properties and is then used to make various products. It is
most heavily used in the automobile industry to make weatherstripping,
seals, belts, hoses, and tires. It is also used in roofing compounds,
electrical insulation, garden hoses, golf club grips, and in gaskets and
seals for many household appliances.
Anderson brought suit alleging the EPDM manufacturers
conspired to restrain trade and fix the price of EPDM in violation of the
Iowa antitrust laws. Anderson claims it purchased various items
containing EPDM for a higher price than it would have had the
conspiracy not existed and seeks to represent all end purchasers of
products containing EPDM in the state of Iowa.
Anderson moved for class certification in June 2006. A contested
hearing was held on December 1, 2006, and the district court granted
1The only defendant participating in the appeal is DSM Copolymers, Inc. The
other defendants have settled, including Bayer AG; Bayer Polymers, L.L.C., n/k/a Bayer
MaterialScience, L.L.C.; Bayer Corporation; Crompton Corporation; Uniroyal Chemical
Corporation, Inc. n/k/a Crompton Manufacturing Company, Inc.; The Dow Chemical
Company; E.I. Dupont de Nemours & Company; Dupont Dow Elastomers, L.L.C.; DSM
Elastomers Europe B.V.; and Exxon Mobil Chemical Company, Inc.
4
class certification on March 16, 2007. The district court certified the
class to include “all persons who indirectly purchased Defendants’ EPDM
in the State of Iowa, other than for resale, from January 1994 through
December 2002.”
The EPDM manufacturers appealed, contending the district court
abused its discretion in certifying the class.
II. Scope of Review.
We review a district court’s decision to grant a request to certify a
class action for an abuse of discretion. Luttenegger v. Conseco Fin.
Servicing Corp., 671 N.W.2d 425, 436 (Iowa 2003). “Our class-action
rules are remedial in nature and should be liberally construed to favor
the maintenance of class actions.” Comes v. Microsoft Corp., 696 N.W.2d
318, 320 (Iowa 2005) (Comes II). When a district court’s grounds for
certification are clearly unreasonable, an abuse of discretion can be
found. Varner v. Schwan’s Sales Enters., Inc., 433 N.W.2d 304, 305
(Iowa 1988). However, if the district court “weigh[ed] and consider[ed]
the factors and [came] to a reasoned conclusion as to whether a class
action should be permitted for a fair adjudication of the controversy,” we
will affirm. Luttenegger, 671 N.W.2d at 437; accord Comes II, 696 N.W.2d
at 321.
III. Discussion.
When determining whether to certify a class action, a district court
is guided by Iowa Rules of Civil Procedure 1.261–1.263. “[A]s soon as
practicable after the commencement of a class action the court shall hold
a hearing” and determine whether the action should proceed as a class
action. Iowa R. Civ. P. 1.262(1). The court may certify a class if it finds
three requirements are established: (1) the requirements of rule 1.261
are met, (2) a class action would provide for the fair and efficient
5
adjudication of the case, and (3) the representative parties will protect
the interests of the class. Iowa R. Civ. P. 1.262(2). The requirements of
rule 1.261 are established if the class is either so numerous or
constituted in such a way that joinder is impracticable and there is a
question of law or fact common to the class. Iowa R. Civ. P. 1.261. To
determine whether a class action will provide a fair and efficient
adjudication of the case, rule 1.263 provides “the court shall consider
and give appropriate weight to [thirteen listed factors] and other relevant
factors.” Iowa R. Civ. P. 1.263(1).
We have recognized that the language of rule 1.263 indicates the
district court has “considerable discretion” in weighing the factors.
Vignaroli v. Blue Cross of Iowa, 360 N.W.2d 741, 744 (Iowa 1985). The
court will determine what weight, if any, to give to each of the listed
factors. Vos v. Farm Bureau Life Ins. Co., 667 N.W.2d 36, 45 (Iowa 2003);
Martin v. Amana Refrigeration, Inc., 435 N.W.2d 364, 369 (Iowa 1989).
“Whether or not we agree with the decision arrived at by the trial court is
not the issue. The issue is one of abuse of discretion.” Martin, 435
N.W.2d at 369.
The district court issued a twenty-two page ruling examining each
requirement for class certification, as well as each of the thirteen factors
relevant to the determination of whether a class action is a fair and
efficient method of litigation in this case. The district court described its
decision to certify the class as a “close call” and acknowledged several
concerns. When considering rule 1.263(1)(e), the court noted the
potential difficulties confronting indirect purchasers when proving injury
and damages, but ultimately concluded common questions predominate
over individual ones and weigh in favor of certifying the class. When
considering rule 1.263(1)(k), the court acknowledged the broad definition
6
of the class coupled with the potential difficulty of identifying specific
products containing the defendants’ EPDM posed significant
manageability problems which could prove insurmountable. Although
the court did determine this factor weighed against certification, the
court concluded that the requirements of rule 1.262 were met and
certified the class. The district court noted it has the authority to amend
the certification order at a later time or even to decertify the class if the
circumstances later render such action appropriate. See Iowa R. Civ. P.
1.265; Vos, 667 N.W.2d at 46.
Several of the EPDM manufacturers appealed, 2 contending the
district court abused its discretion in (1) certifying the class action
despite its recognition of the potential manageability problems and (2)
concluding common issues predominate over individual issues.
A. Manageability. The EPDM manufacturers allege the district
court correctly determined the manageability factor weighs against class
certification as a fair and efficient means to litigate the case, but argue
the court abused its discretion by certifying the class. The
manufacturers argue that because EPDM has a similar appearance to
natural rubber, plastic, and vinyl, and because of the wide range of
products that use EPDM and these other substances, it will be difficult, if
not impossible, for potential class members to establish they are
members of the class. Further, the manufacturers contend, even if
potential class members can determine they purchased a product
containing EPDM during the relevant time period, it will be even more
difficult to determine if the EPDM was manufactured by one of the
defendants. They also contend the definition of the class is ambiguous
2Allof the appellants have since withdrawn their appeal with the exception of
DSM Copolymers, Inc.
7
and problematic because the limitation to people who have purchased
EPDM “other than for resale” is confusing and unclear. The parties agree
that because of the prevalence of EPDM products, the class could
potentially include every resident of Iowa during the established time
frame. Thus, the EPDM manufacturers contend, the identification of
class members will require hundreds of thousands of “mini-trials” for
each putative class member to establish his or her membership in the
class.
The distribution channels of EPDM are complicated and extensive
due to the nature of the substance. EPDM is extremely versatile.
Because it is manufactured in various grades with different qualities, its
uses vary widely, and it tends to be combined with other components to
create other products. Often, these products are sold and, in turn,
combined with or implemented into other products and again resold.
(For example, consider the case of EPDM that is sold to a purchaser who
combines it with other products to create a rubber hose which is then
sold to a car manufacturer to be used in the assembly of motor vehicles.)
The end product will not have “EPDM” or the original manufacturer’s
identity stamped on it, and indeed the EPDM-containing component part
itself may be well-concealed within the final product (an appliance or
automobile). Thus, the EPDM manufacturers contend identifying the
members of the class will require a mini-trial for each potential class
member to establish that he has indeed purchased not only a product
containing EPDM and not another substance, but has purchased a
product containing the defendants’ EPDM.
Anderson does not dispute that the distribution channels are
complicated and widely varied. It contends, however, that because it will
prove class-wide injury and damages in the aggregate during trial, there
8
will be no need for mini-trials establishing that each individual class
member purchased an EPDM product for an inflated price. Assuming,
only for argument’s sake, that Anderson is successful at trial and proves
one or more of the defendants violated the Iowa Competition Law, Iowa
Code chapter 553, any potential mini-trials establishing class
membership and entitlement to damages will occur during the claims
administration process.
Anderson seeks to utilize a “top down” approach in proving class-
wide injury and asserts damages should be assessed in the aggregate as
established through expert testimony. See Comes II, 696 N.W.2d at 323–
25. Under this approach advocated by Anderson, there would be no
need during the trial to address the potential manageability problems
described by the EPDM manufacturers and noted by the district court in
its ruling. Instead, such potential problems would be confronted, if
necessary, after the trial of the liability and class-wide injury issues is
completed. Further, Anderson contends the manageability problems
asserted by the manufacturers could be avoided altogether if any
judgment for class-wide injury is distributed cy pres. See 2 William B.
Rubenstein, Alba Conte & Herbert B. Newberg, Newberg on Class Actions
§ 4:33 (4th ed. 2002) (explaining cy pres distribution of settlement
proceeds in antitrust class action litigation).
The EPDM manufacturers cite In re Phenylpropanolamine Products
Liability Litigation (PPA) to support their argument that the district court
should not have certified the class because the class members must
establish individual injury and damages. 214 F.R.D. 614, 619–20 (W.D.
Wash. 2003). In PPA, the federal district court’s order declined a request
for certification of a class because the court concluded the class
members would be virtually impossible to identify and that even allowing
9
a “fluid recovery” or cy pres procedure would not alleviate the
identification problems. 214 F.R.D. at 618–20. We do not find the
court’s decision in PPA persuasive in this case. First, although the court
in PPA determined a “fluid recovery” procedure was unsuitable, this
court has already recognized an aggregate approach to injury and
damages as appropriate in an antitrust case. See Comes II, 696 N.W.2d
at 323–24. Further, PPA is a case in which a federal district court
concluded, in the exercise of its discretion, that a class should not be
certified. PPA, 214 F.R.D. at 614, 623. In contrast, this court is
reviewing for abuse of discretion the district court’s determination that a
class should be certified.
The EPDM manufacturers next assert the exclusion from the class
of indirect purchasers who bought EPDM-containing products “other
than for resale” is vague and confusing. Specifically, they argue it is
unclear whether purchasers who intended to resell the product when
they purchased it, those who did not intend to resell but did ultimately
resell, and those who intended to resell but were unable to resell are all
excluded from the certified class. We conclude the district court’s
delineation of the class clearly is intended to exclude persons who resold
the EPDM or product containing the substance, no matter what their
intent was at the time of purchase. The definition of the class makes no
mention of the purchasers’ intent, and we see no reason the purchasers’
intent informs a determination of whether a purchaser has been harmed
by the alleged conduct of the defendant manufacturers.
In conclusion, we note the district court did conclude the potential
manageability issues weighed against certification of the class. However,
manageability is but one of thirteen factors the court considered when it
determined a class action is a fair and efficient method of litigating the
10
case. As we have already noted, rule 1.263 does not require any
particular factor be weighed more heavily than another. In fact, the rule
gives ample discretion to the district court to weigh the factors as it sees
fit. We also observe that a number of courts have concluded
manageability issues alone are rarely sufficient to refuse certification.
See In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 140–41
(2d Cir. 2001); In re Workers’ Compensation, 130 F.R.D. 99, 110 (D.
Minn. 1990). Further, the district court emphasized that if necessary, it
could modify the certification order or decertify the class altogether at a
later time. Considering these possible remedies should the class become
unmanageable, and given our belief that any need for individualized
determinations will arise, if at all, during the claims administration
process after a trial of the liability and class-wide injury issues, we
conclude the district court did not abuse its discretion.
B. Common Issues vs. Individual Issues. The EPDM
manufacturers also take issue with the district court’s application of rule
1.263(1)(e)—“[w]hether common questions of law or fact predominate
over any questions affecting only individual members.” Iowa R. Civ. P.
1.263(1)(e). The EPDM manufacturers and Anderson agree that the
claim against the manufacturers involves three elements: (1) proof of a
conspiracy to fix the price of EPDM, (2) injury to the plaintiffs, and (3)
damages. The parties further agree that the first of these elements can
be established with common proof and the third element will require
some individualized proof. However, they dispute whether the second
element may be established with common proof. Both parties offered
expert opinions supporting their positions. The district court considered
both expert opinions and noted the fighting issue between them was
whether a method of establishing class-wide injury could be devised.
11
The court concluded this issue went to the merits of the case and was “a
factual issue for the jury to determine based on expert testimony.” It
concluded that if Anderson’s expert is ultimately unable to provide a
method of calculating the alleged conspiracy’s effect on pricing, a motion
for summary judgment or directed verdict would appropriately address
the issue. Concluding the difficulties of proving injury and damages in a
class action brought by indirect purchasers are very challenging but not
insurmountable, the court determined that common issues predominate
over individual issues in this case and rule 1.263(1)(e) therefore weighs
in favor of certification of the class.
The EPDM manufacturers contend the district court’s assessment
of this factor was flawed in two respects. First, the manufacturers argue
the court should not have applied the low standard articulated in Comes
II for the evaluation of expert testimony at the class certification stage.
Second, they contend the district court abused its discretion by
concluding common issues predominated and should have refused to
certify the class had it determined otherwise.
The district court acknowledged that the EPDM manufacturers had
offered an expert opinion contradicting Anderson’s expert’s claimed
ability to assess injury on a class-wide basis. The court nonetheless
concluded it is inappropriate, during class certification proceedings, to
resolve “battles between the experts.” Citing Comes II, the district court
said “[a]t this point the Court is only concerned with ensuring that the
basis of the expert opinion is not so flawed that it would be inadmissible
as a matter of law.” The EPDM manufacturers contend the district
court’s application of the “not inadmissible” standard was erroneous
because the case Comes II relied on for the standard, Visa Check, 280
12
F.3d at 135, has since been disavowed. See In re Initial Pub. Offerings
Secs. Litig., 471 F.3d 24, 42 (2d Cir. 2006) (IPO).
After reviewing Supreme Court authority, as well as decisions from
other federal circuits, the Second Circuit Court of Appeals did disavow
the “not inadmissible” standard and joined a clear majority of
jurisdictions applying a somewhat more searching standard in the
determination of whether a class should be certified. The court
concluded
[a] district judge is to assess all of the relevant evidence
admitted at the class certification stage and determine
whether each [class certification] requirement has been met,
just as the judge would resolve a dispute about any other
threshold prerequisite for continuing a lawsuit.
Id.; see also Blades v. Monsanto Co., 400 F.3d 562, 575 (8th Cir. 2005)
(stating that “in ruling on class certification, a court may be required to
resolve disputes concerning the factual setting of the case” and resolve
“expert disputes concerning the import of evidence”); Unger v. Amedisys,
Inc., 401 F.3d 316, 319 (5th Cir. 2005) (requiring a careful certification
inquiry including findings); Szabo v. Bridgeport Machs., Inc., 249 F.3d
672, 676 (7th Cir. 2001) (requiring a judge to make whatever legal and
factual inquiries are necessary to determine if class certification is
appropriate); Love v. Turlington, 733 F.2d 1562, 1564 (11th Cir. 1984)
(stating that while the court may not reach the merits of a claim, it also
should not artificially limit its review of the class certification
requirements in deference to that principle).
The EPDM manufacturers contend we should adopt the more
searching standard now applied by the Second Circuit and a majority of
jurisdictions. The manufacturers assert that if such a standard is
applied in this case, Anderson’s expert’s claimed ability to devise a
13
workable formula to assess damages on a class-wide basis will not
survive scrutiny.
Although the Second Circuit Court of Appeals’ decision in IPO was
partially based on amendments to the Federal Rules of Civil Procedure
which have not been adopted in Iowa, 3 we find the reasoning of IPO’s
rejection of the “not inadmissible” standard persuasive and adopt it. We,
however, do not find our disavowal of the “not inadmissible” standard
requires us to reverse the decision of the district court in this case.
First, we do not find the standard articulated in IPO to be radically
different from the standards of evaluating a motion for class certification
this court has articulated in the past. Although we have cautioned that
a certification hearing should not involve a determination of whether the
plaintiffs will prevail on the merits, “that is not to say that the court may
not require sufficient information to form a reasonable judgment in
deciding whether to certify a class.” Martin, 435 N.W.2d at 367–68.
“[T]he question of predominance necessitates a ‘close look’ at ‘the
difficulties likely to be encountered in the management of a class
action.’ ” Vos, 667 N.W.2d at 46 (quoting Rothwell v. Chubb Life Ins. Co.
of Am., 191 F.R.D. 25, 28–29 (D.N.H. 1998)). While the decision in IPO
requires a more searching analysis than earlier Second Circuit
precedent, the Second Circuit Court of Appeals also warned courts
3The Second Circuit Court of Appeals concluded that
[t]wo changes arguably combine to permit a more extensive inquiry into
whether [class certification] requirements are met than was previously
appropriate. First, the amended rule removes . . . the provision that
class certification “may be conditional.” Second, the amended rule
replaces the provision . . . that a class certification decision be made “as
soon as practicable” with a provision requiring the decision “at an early
practicable time.”
IPO, 471 F.3d at 39.
14
against engaging in such an extensive analysis of an expert’s credibility
that it must make a decision on the merits of the case. 471 F.3d at 41.
Additionally, we conclude the opinion of Anderson’s expert survives
this more searching scrutiny. Anderson’s expert, Dr. Conner, concluded
that based on his extensive experience and studies, 4 “all class members
were similarly affected by paying a higher price for the defendants’ EPDM
during the class period than they otherwise would have paid in the
absence of the defendants’ anticompetitive conduct.” He additionally
asserted that “there is a reasonable method sanctioned by orthodox
economic principles that will permit the computation of class-wide
damages using a common formula.” In his affidavit, Dr. Conner
described four different methods of calculating the class-wide damages
commonly accepted in federal and state courts, which he has used in
other class action litigation. In his deposition, Dr. Conner conceded he
could not tell at this early juncture which of the four methods would
prove to be the most effective and reliable “[b]ecause that would require
actual immersion into the data.” He explained that while he had not
attempted to include calculations of the manufacturers’ overcharge in his
4Dr. Conner has been a professor in the Department of Agricultural Economics
at Purdue University since 1989 where he teaches price analysis, industrial-
organization economics, and quantitative research methods primarily to graduate
students. He earned his Ph.D. and M.S. in Agricultural Economics from the University
of Wisconsin at Madison. His research has specialized in industrial-organization
economics, and in the last ten years, more specifically in cartel studies and antitrust
enforcement. He has published or is preparing to publish more than fifty academic
publications analyzing various facets of the economics of price-fixing or antitrust
enforcement. This research has been stimulated by his involvement as an expert in
various class action lawsuits. He has most recently submitted expert reports in cases
alleging price-fixing conspiracies in the marketing of lysine, methionine, smokeless
tobacco, fed cattle, district heating pipes, and grocery wholesaling. Dr. Conner has
served as a consultant to the U.S. Subcommittee on Multinational Corporations, the
U.S. Congress’ Office of Technology Assessment, the Antitrust Division of the U.S.
Department of Justice, the National Association of Attorneys General, the Organization
of Economic Cooperation and Development, and the United Nations.
15
report because of his limited access to industry pricing records, he had
prepared a “back-of-the-envelope” estimate of the percentage price
change during the collusive period and estimated that the direct
overcharge amount extracted by the defendants from the market was
about nine percent.
The EPDM manufacturers contend Dr. Conner wavered in his
assertion that he could calculate class-wide injury.
Q: Have you concluded that it would be possible to
determine the effect of injury in this case on a class-wide
basis? A: I’ve not yet determined that. I see no
impediments to doing such an analysis with further
discovery in the future and information from end users, from
retailers. I have no reason to suspect that it’s not feasible to
form such an analysis. But I don’t have—I have not yet been
provided with—with prices, for example, at lower levels of the
EPDM channels that would allow me to make a preliminary
conclusion in the matter.
Q: Have you formed a conclusion about whether it would be
possible to prove damages to the [putative] class in this case
on a class-wide basis? A: I am confident that one or more of
the methods that I outlined in this affidavit will permit me or
some other well-trained analyst to do so.
We do not find Dr. Conner’s testimony as faltering as the
manufacturers would characterize it. Rather we read any hesitation of
Dr. Conner to be a reluctance to identify the most appropriate method of
calculating the indirect overcharge until he has access to more complete
records following thorough discovery. As we noted before, when pressed,
Dr. Conner offered a preliminary rough estimate of the direct overcharge,
but consistently declined to estimate the indirect overcharge because he
did not yet have enough information to calculate it.
The defendants also assert the district court should have
considered the opinion of their expert who contradicted Dr. Conner’s
assertion that it would be possible to calculate damages on a class-wide
basis. The EPDM manufacturers’ expert, Dr. Snyder, in a well-written
16
and persuasive report, criticized Dr. Conner’s conclusions on two key
issues. First, Dr. Snyder challenged Dr. Conner’s lack of knowledge of
the EPDM industry and channels of distribution. Second, Dr. Snyder
claimed Dr. Conner’s methods are simplistic and insufficient to calculate
class-wide damages in an industry as complex and wide-ranging as the
EPDM industry. We conclude the first of these issues would be
appropriately considered by the court when making a class certification
decision, but the second goes to the heart of the merits of the case, and
as such, should be deferred by the trial court, even under the standard
articulated in IPO. While a court should consider all of the relevant
evidence admitted at the class certification stage and resolve any factual
disputes necessary to determine if the class certification requirements
are met, the court “should not assess any aspect of the merits unrelated
to a [class certification] requirement” and has the discretion to limit
discovery and the extent of a hearing “to assure that a class certification
motion does not become a pretext for a partial trial of the merits.” Id.
Considering all the evidence admitted in the class certification
proceedings, including Dr. Snyder’s report, we conclude the trial court
did not abuse its discretion in concluding Anderson had submitted
sufficient evidence tending to demonstrate that class-wide injury can be
quantified in this case. See Comes II, 696 N.W.2d at 322–23. Given that
the class certification decision must be made “as soon as practicable
after the commencement of a class action,” rule 1.262(1), we would
expect a district court to consider a plaintiff’s expert’s limited access to
discovery (as well as the defendants’ expert’s superior access to the
defendant’s records) when assessing the experts’ opinions in the early
stages of complex litigation. Dr. Snyder’s contention that Dr. Conner’s
methods are flawed and incapable of calculating injury and damages to
17
the class as a whole constitutes a challenge going directly to the merits of
the case and should not be resolved at this preliminary stage. We note,
as did the trial court, that “a safety net is provided for cases in which
certification is improvidently granted: the court may decertify the class at
a later time.” Comes II, 696 N.W.2d at 324. The trial court may also
modify the certification order by narrowing the class or establishing
subclasses. 5 Iowa R. Civ. P. 1.265.
IV. Conclusion.
We find no abuse of discretion in the district court’s decision to
certify the class action lawsuit.
AFFIRMED.
All justices concur except Cady, J., who takes no part.
5Dr. Conner himself suggested, indirectly, that subclasses may be appropriate
for this class,
[b]ecause the pass-on rates may vary according to which channel
one is studying. The task of an analyst faced with this problem of
determining damages may—it may turn out that the subclasses
make more sense from the point of view of economic analysis
than developing a model for the entire class.
He, however, asserted that he would need “to gather the appropriate data and do the
appropriate analysis in order to determine the pass-on rate in the channels as a whole
or in individual channels involving EPDM.”