# In re Polyurethane Foam Antitrust Litigation

> District Court, N.D. Ohio · April 9, 2014 · 314 F.R.D. 226

URL: https://www.frixlaw.com/law-library/cases/8775197

## Case

- **Full name:** IN RE POLYURETHANE FOAM ANTITRUST LITIGATION
- **Court:** District Court, N.D. Ohio
- **Decided:** April 9, 2014
- **Citations:** 314 F.R.D. 226; 2014 WL 11199430
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Zouhary
- **Judges:** Zouhary
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8775197

## How later opinions describe it (automated extraction)

- explaining the impact burden plaintiffs have in indirect purchaser actions
- rejecting challenges to the plaintiffs’ expert’s statistical analyses

## Opinion text

*229
CLASS CERTIFICATION MEMORANDUM OPINION AND ORDER
JACK ZOUHARY, U.S. DISTRICT JUDGE
Introduction
In these consolidated proceedings, two putative classes allege that dominant firms in the flexible polyurethane foam market engaged in a decade-long conspiracy to fix, raise, and maintain the price of foam products. Pending before this Court are Motions for Class Certification by two groups of plaintiffs: Direct Purchasers (Doc. 584) and Indirect Purchasers (Doc. 577). Defendants opposed the Motions (Docs. 680, 682, 683 & 686), and Plaintiffs replied (Docs. 740, 741 & 744). The parties papered the docket with numerous expert reports (Does. 581-83, 584-10 at 22-42, 584-14, 590, 594, 679-1, 680-1, 682-1, 682-2, 683-2, 743, 744-13, 744-48, 744-49, 752, 892-1, 892-2, 892-3 & 893-1). (Other parties in this case, Direct Action Plaintiffs, proceed separately from the putative classes.)
This Court then held oral argument on both Motions, and heard testimony from several experts — Leitzinger, Lamb, Ordover, and Burtis (Docs. 898, 938, 954, 957, 959-60 & 967). There is more. The parties engaged in a parade of filings with post-heating supplemental authorities and other materials covering a range of topics (Docs. 963-64, 985, 990, 1020, 1024, 1031, 1035, 1085-86 & 1098). After an exhaustive review of the record, this Court grants both Motions for the reasons that follow.
Background
The Parties and Products
Polyurethane Foam. Market
The polyurethane foam (“foam”) market consists of several types of products. Foam *230 products are created from a mixture of toluene diisocyanate (“TDI”) and polypropylene glycol (“polyol”) (Doc. 584-14 at 10; Doc. 581 at 13 (explaining “all of the TDI produced in the United States” is used in foam production); Doc. 682-1 at 37; Doc. 680-1 at 40). Pricing for each chemical is influenced by petroleum prices (Doc. 682-1 at 41-42 (quoting a Foamex SEC filing attributing foam input price increases to “oil and natural gas prices and the current geopolitical instability and its impact on oil production and prices”)). The principal chemical manufacturing plants for TDI and polyol, run by industry-dominant firms like Lyondell Chemical Company (now LyondellBasell Industries), Huntsman, Dow, and BASF, are or were located in the Gulf Coast region (Doc. 682-1 at 40-41; Doc. 680-1 at 43-44; Doe. 584-14 at 44 n.226). Together, these two chemicals account for roughly ninety percent (90%) of foam production costs (Doc. 584-14 at 10 (estimating TDI and polyols to be “80 to 90 percent of slab-stock manufacturing costs”); Doc. 581 at 13 (same); Doc. 682-1 at 38 (quoting various Defendants’ internal cost-share estimates from 85 to 90 percent of aggregate cost); Doc. 680-1 at 41)).
Water also figures in the foam blend, serving as a “blowing agent” that produces an exothermic reaction in the foam blend causing it to expand (Doc. 680-1 at 40). Product-specific additives, discussed below, are important in determining foam type. But, like water content, the cost of these additives does not cause large variations in the cost of producing foam products of comparable foam volume — TDIs and polyols are dominant throughout.
From here, production processes and alterations to the general foam blend effectively split the generic foam market into “sub-markets.” Some foam, termed “rigid,” is used for building or automotive insulation (see Doc. 680-1 at 38 (noting Woodbridge’s production of rigid foam products); Doc. 581 at 12 (noting that rigid foam accounts for 46 percent of polyurethane foam demand, with the remainder tied to flexible foam)). “Molded” foam, primarily found in automobile cushions, is formed after the foam blend is “poured into custom tooled molds the shape of the desired product” (Doc. 680-1 at 40-41). Foam is near ubiquitous, appearing in a vast array of product uses. “Packing peanuts,” for example, derive from the same general foam blend (Doc. 682-1 at 51). Flexible foam alone amounts to 1.2 billion pounds per year in domestic consumption (Doe. 581 at 13).
But the present Motions, while broad in scope, do not encompass the entire foam industry. Rather, only two foam sub-markets, distinguished from other sub-markets by their production processes and end uses, are relevant: slabstock and underlay.
Slabstock
As noted above, the foam blend undergoes an exothermic reaction with the addition of a blowing agent, typically water; that reaction generates a release of heat, forming bubbles within the foam blend. “The bubbles in the foam produce ‘cells’ containing air” (Doc. 682-1 at 37; Doc. 680-1 at 40). For slab-stock, the expansion process occurs as foam is continuously “poured” onto a moving conveyor belt (Doc. 584-14 at 9). That conveyor belt is equipped with “sides from [three to four feet] high” (Doc. 581 at 13), with length and width dimensions that vary depending on intended uses (Doc. 584-14 at 9 & n.16). Cured slabstock, which resembles a loaf of bread, is also referred to as a “bun” (id. at 9 & n.15).
But not all slabstock is created equal. Foam manufacturers regularly vary foam blends to produce varying characteristics or “grades” (see id. at 15 (noting combustion modifiers and other additive types)). Slab-stock can vary by density, with more dense foam typically providing better support and comfort (Doc. 682-1 at 47; Doc. 680-1 at 50). Slabstock can also be more or less firm, measured according to an industry-standard Indentation Force Deflection calculation (Doc. 584-14 at 17; Doc. 682-1 at 48; Doc. 680-1 at 51). “Support factor,” a measure of “deep down support,” can also be adjusted in the production process (Doc. 680-1 at 51), as can resilience or springiness, a quality measured by dropping a steel ball onto foam and measuring the ball’s rebound height as a percentage of the drop height (Doc. 584-14 at 19). The paities identify other ways slab-stock can vary (see, e.g., id. 18-19 (describ *231 ing hysteresis, flex fatigue, roller shear, tear strength, air flow, and combustibility qualities of slabstoek and how those qualities are measured)). These characteristics “are determined by the specific formulation of chemicals that are combined to produce [the foam], and are largely independent of each other,” such that high resilience foam can be more or less dense (Doc. 680-1 at 52).
Slabstoek with a given set of characteristics may vary by form (see, e.g., Doc. 682-1 at 49). A bun can be sold in the same form in which it leaves the conveyor belt (Doc. 584-14 at 20). Or, extending the industry’s apparent penchant for baking metaphors, a bun can become a “roll” by slicing the bun lengthwise and then winding the resulting foam sheets into a roll. Or a bun can be otherwise fabricated, either by the bun manufacturer itself or by another firm, through various post-pouring technologies “involving] combining foam with another material, such as a nonwoven substrate or fiber,” or joining foam types together (id. at 21).
Underlay
Underlay, or carpet cushion, is produced in two primary forms. Most commonly, underlay is composed of “rebond” (id. at 23). Re-bond joins together slabstoek “scrap” or “trim” generated during the fabrication process — for example, the waste material created in the course of cutting a bun to some desired shape. The scrap is shredded further, and then combined in a mold with a binding agent. Heat and pressure are applied, forming a rebond bun or log (id.). A rebond bun can then be sliced lengthwise to produce underlay (Doc. 581 at 15-16). A rebond log is “rotated against a knife blade to peel the log into a long sheet of rebond foam padding” (Doc. 584-14 at 23). In both cases, a backing material of some type is applied to the rebond sheets (id.). Two-thirds of rebond production costs are attributable to the price of scrap (Doc. 680-1 at 48 & n,89). Another 20 percent of costs can be traced to the binding agent (Doc. 967 at 73). Not all the rebond-producing Defendants internally source the scrap used to produce rebond. For example, Mohawk “has always fulfilled all of its scrap foam needs on the open market” (Doc. 679-1 at 9).
In recent years, domestic scrap’s place in the rebond “mix” has declined, due in part to the rising price of domestic slabstoek (Doc. 682-1 at 46 (noting a shortage in domestic scrap following Hurricanes Katrina and Rita)). Between 2000 and 2008, underlay producers substantially increased the use of “take up” in producing rebond; “take up” is underlay removed from a prior use in residential or commercial buildings (id. at 43-44; Doe. 680-1 at 46-47). Similarly, over the same period, scrap imports increased (Doe. 682-1 at 43-44; Doc. 680-1 at 46-47). Re-bond demand has declined since 2004, owing to shifts in consumer preferences for wood or tile flooring products (Doc. 581 at 16).
Carpet cushion also can contain “prime underlay.” Prime underlay is not formed from the waste of fabrication operations or post-consumer recycled materials; instead, prime underlay is poured in the same manner as slabstoek, for the immediate purpose of serving as foam for underlay (Doc. 584-14 at 24). Prime underlay is a very small portion of the underlay market, amounting to “less than one percent” of underlay sales in 2009 (id.). See also Doc. 682-1 at 43 n.83; Doc. 679-1 at 27 n.58.
Finally, like slabstoek, underlay of a particular type can vary according to product attributes. For instance, underlay can include noise dampening qualities and antimicrobial coatings. And, like slabstoek, its density can vary. These varying attributes affect underlay prices (Doc. 679-1 at 12).
Plaintiffs and the Proposed Classes
The pending Motions seek certification of classes that include most of Defendants’ immediate customers, as well as all end-use purchasers, for certain foam products. Seven Plaintiffs (Doc. 52 at ¶¶ 6-12) seek certification of a Direct Purchaser class, defined to include (Doc. 584 at 1):
All persons or entities that purchased flexible polyurethane foam (but excluding molded foam) directly from Defendants and/or their co-conspirators from January 1, 1999 to July 31, 2010 for purchase from or delivery into the United States. Excluded from the Class are governmental *232 entities, Defendants, their co-conspirators, and their officers, employees, agents, representatives, parents, subsidiaries and affiliates.
Indirect Purchasers, 1 individual consumers and “authorized managing agents” for hotels and other entities operating in various states, seek certification of a class consisting of (Doc. 577 at 1-2):
All persons or entities in Alabama, Arizona, California, Colorado, [the] District of Columbia, Florida, Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, West Virginia, and Wisconsin who purchased products containing flexible polyurethane foam [“product” here defined to include only carpet underlay, bedding, and upholstered furniture products], not for resale, which were manufactured, produced or supplied by Defendants or their unnamed co-conspirators from January 1, 1999 to the present. Excluded from the Class are governmental entities, Defendants, their co-conspirators and their representatives, parents, subsidiaries and affiliates.
Defendants
As a group, Defendants dominate the domestic market for the manufacture and sale of flexible polyurethane foam (“flexible foam”). Defendants’ internal records trace a gradual increase in Defendants’ combined control of the “North American flexible slab production” market over the course of the Class Period — from 80 percent in 1999 to 96 percent of “total U.S. production” in 2010 (Doc. 584-14 at 26-27). See also Doc. 581 at 24 (calculating a Herfindahl-Hirschman Index (“HHI”) 2 as “moderately concentrated” for the 2004 foam market); id. at 25-26 (HHI scores of 2,868 and 2,200 for Defendants’ foam used in the 2009 bedding and furniture markets). A similar upward trend is reflected in Defendants’ share of the underlay market, from 91 percent in 2001 to 94 percent in 2009 (Doc. 584-14 at 27). See also Doc. 581 at 25 (calculating a 2009 HHI score of 2,073). Individual Defendants during the Class Period have engaged in these two general markets, among others, to greater or lesser degrees (see, e.g., Doc. 680-1 at 53 fig. 4 (showing Defendants’ 2005-10 relevant sales, and the percentage of that total sales figure attributable to bun, roll, fabricated foam and carpet cushion sales)).
Carpenter manufactures polyurethane foam products, polyols, polyester fibers, and expanded polystyrene products (Doc. 682-1 at 33). See also Doc. 744-49 at 36 n.151 (noting Carpenter’s self-sourced polyols). Carpenter had $269 million in 2009 foam sales (Doc. 682-1 at 33).
FXI produces foam for the home, healthcare, electronics, industrial, personal care, and transportation markets. FXI’s products include finished goods, sub-assemblies, ser *233 vices, and raw material for OEMs, fabricators, and retailers. FXI had $247 million in 2009 foam sales. In June 2009, FXI purchased assets of the former Foamex International Inc. (“Foamex”) at a bankruptcy sale. Defendants represent FXI as “a distinct company [from Foamex] with different ownership that did not exist before 2009” (id. at 34). (Defendants claim certain Plaintiffs’ experts omit the FXI/Foamex distinction in their references to FXI.)
Future Foam manufactures polyurethane foam for the furniture industry. Future Foam also operates carpet cushion plants and fabricates foam. Future Foam had $221 million in 2009 sales (id.).
Flexible Foam manufactures carpet cushion and flexible foam for bedding, furniture, and specialty applications. Flexible Foam had sales of $269 million in 2009 (id. at 34-35).
Woodbridge primarily manufactures molded foam products for the automotive and transportation industries, and also manufactures rigid foam insulation products, technical foams, and unfabricated and fabricated products (see Doc. 680-1 at 38). Woodbridge had foam sales of $52 million in 2009 (Doc. 682-1 at 35).
Leggett & Platt manufactures products for the residential, automotive, and transportation markets (Doc. 680-1. at 39). Rebond underlay accounts for the overwhelming majority of Leggett & Platt’s sales to direct purchasers (Doc. 679-1 at 5). Leggett & Platt sold its slabstock production and sales operations in March 2007, and now only produces underlay using purchased scrap (id. at 7). Leggett & Platt had $185 million in 2009 underlay sales (Doc. 682-1 at 36).
Hickory Springs similarly manufactures flexible foam products for the furniture and bedding industries, totaling $180 million in 2009 sales (Doc. 682-1 at 36).
Mohawk produces carpet cushion products made from recycled flexible polyurethane foam, latex rubber, and other fibers (id.). Mohawk’s relevant sales were limited to carpet underlay during the Class Period (Doc. 679-1 at 5), with only a “small fraction,” $92 million out of $5 billion, in 2009 total revenues from such underlay sales (Doc. 680-1 at 40).
Vitafoam sold its American polyurethane foam manufacturing operations in 2005-06 (Doc. 683-2 at 8), and differs from other Defendants in two respects: Vitafoam has settled with Direct Purchasers; and Vita-foam is a Department of Justice (“DOJ”) colórate leniency applicant — a decision on that application in still pending (Doc. 682 at 23). Vitafoam also cooperates with Plaintiffs in hopes of securing damages limitations under the Antitrust Criminal Penalties Enhancement and Reform Act of 2004 (“ACP-ERA”), in the event judgment is entered against Vitafoam (Doc. 686 at 5).
Distribution Chains
Earlier discussion identified links in the foam distribution chain. Chemical manufacturers, like BASF, sell TDIs and polyols to slabstock manufacturers, or “foamers,” like Flexible Foam. Flexible Foam might then sell unfabricated foam buns or partially fabricated foam rolls to foam fabricators. Further foam fabrication may be followed by sale of the resulting fabricated foam product to an original equipment manufacturer (“OEM”), like a mattress producer. Or the fabricated foam can be sold directly to a retailer or distributor, without further finishing. In either case, after purchasing flexible foam from a Defendant, an OEM, retailer, or distributor eventually sells a product incorporating flexible foam to an end-use consumer (see Doc. 581 at 17-18, 18 fig. 2; Doe. 680-1 at 129 fig. 25).
The underlay distribution chain is similar to the slabstock and fabricated foam distribution chains. Again, chemical manufacturers sell inputs to foamers who then pour slab-stock. Foamers sell unfabricated slabstock to foam fabricators, who in turn sell trim generated during fabrication of slabstock to rebond producers. Alternatively, rebond manufacturers can purchase take-up from vendors of that input, or imported scrap from brokers, or rely on internal scrap. Rebond is then produced from these primary inputs. The same firm, or a different firm, then fashions underlay from the rebond bun or log. Underlay is then sold to retailers, dis *234 tributors, and buying co-ops. Builders, or homeowners directly, then purchase the underlay for end-use in commercial and residential buildings (Doc. 581 at 19 fig. 3; Doe. 680-1 at 130 fig. 26).
Defendants fill a number of these roles in the supply chain. Carpenter, a producer of polyols, is both a chemical manufacturer and a foamer (Doc. 680-1 at 36), while Mohawk is not a foamer, and instead manufactures only underlay using purchased scrap (id. at 40). The fact that not all Defendants engage in the slabstock and underlay markets to the same extent means that situations like the following hypothetical can arise: Flexible Foam might sell slabstock to Fabricator A. Fabricator A could then sell scrap to Mohawk. Or Flexible Foam could sell its internal scrap to Mohawk, directly or through a scrap broker. It may even be that a Defendant firm could sell an unfabricated bun to a fabricator, and then purchase, from the same fabricator, scrap cast off from the earlier-sold bun for use in rebond production.
Eventually a product reaches its “end-use.” Indirect Purchasers describe three relevant end-use categories: (1) carpet underlay; (2) “bedding (i.e., mattresses, pillows, and toppers)” and; (3) “upholstered furniture products, including upholstered sofas and chairs.” These three categories account for three-fourths of all domestic foam consumer uses (see Doc. 581 at 15 & tbl. 1). In consumption terms, underlay is the largest of these end-use markets, followed by bedding and then furniture (id.). Defendants’ flexible foam products appeal’ in each of the end-use mai’kets to varying degrees (see Doc. 680-1 at 54 fig. 5).
The Alleged Conspiracy
Plaintiffs allege Defendants joined in a conspiracy to fix and raise the price of flexible polyurethane foam, and to allocate customers in that market (Doc. 46 at ¶¶ 1, 3; Doc. 371 at ¶¶ 1, 3). The Direct Purchaser Class Period spans more than eleven years, from January 1, 1999 through July 31, 2010 (Doc. 584 at 1). The Indirect Purchaser Class Period shares the same start date, but runs through the present (Doc. 577 at 1).
Plaintiffs allege that law enforcement first learned of the conspiracy when, in February 2010, Vitafoam sought admission to the DOJ corporate leniency program (Doc. 46 at ¶ 60; Doc. 371 at ¶ 72). DOJ issued Vitafoam a “conditional leniency letter ..., which means that Vitafoam has admitted to its participation in a conspiracy to violate the U.S. antitrust laws” (Doc. 46 at ¶ 61; Doc. 371 at ¶ 73). Further, in connection with Vita-foam’s participation in that program, and in cooperation with Canadian antitrust authorities, Vitafoam employees “revealed the mechanisms, participants, duration, and impact of the conspiracy” (Doc. 46 at ¶ 62; Doc. 371 at ¶ 74).
According to these Vitafoam employees, the conspiracy worked as follows: chemical manufacturers would announce a price increase for TDIs or polyols, providing Defendants the “pretext” for a collusive price increase. Defendants would then resort to an “established practice” to “reach an agreement or understanding” on the amount and timing of price increases for their foam products, by phone or in person. Face-to-face talks were typically held two to three times per year and often coincided with foam industry trade shows. Price increase letters also played an important role in reaching and enforcing the conspiratorial agreement. Pri- or to sending customers formal notice, the exchange of draft price increase letters provided a basis for discussing the level and timing of increases. After publishing price increase letters, exchange of the letters helped Defendants police co-conspirator’s compliance with the agreed-on pricing policy (Doc. 46 at ¶¶ 63-66, 96; Doc. 371 ¶¶ 75-78, 107). See also id. at ¶¶ 95-112 (quoting excerpts of telephone and e-mail conversations that purport to show Defendants “implementing and enforc[ing] the conspiracy”).
Plaintiffs then detail the participation of four Vitafoam employees in the conspiracy, discussing their use of these same coordination practices to agree on anticompetitive pricing and naming other Defendants’ employees who joined in these discussions. These Vitafoam employees include: a former Vitafoam President; the then-current Vita-foam President; a former Vitafoam Vice President of Sales; and a succeeding Vice President of Sales (see Doe. 46 at ¶¶ 67-94; *235 Doc, 371 at ¶¶ 79-105). This last Vitafoam employee also appears as “Witness A” in a Canadian sworn information in support of a search warrant, identifying foam industry employees involved in the conspiracy (Doc. 46 at ¶¶ 83-84 & tbls.; Doc. 371 at ¶¶ 95-96 & tbls.).
Plaintiffs allege that every flexible foam price increase letter issued during the Class Period was “the result of conspiratorial discussions among Defendants on pricing” (Doc. 46 at ¶ 94; Doc. 371 at ¶ 105)
Class Certification Standard
Direct Purchasers seek certification of a nationwide class, comprised of individuals who directly purchased products containing slabstock and underlay from Defendants or their coconspirators (Doc. 584 at 1). Indirect Purchasers seek certification of a class that includes residents of twenty-nine (29) states and the District of Columbia who purchased items falling within three end-use products— underlay, bedding, and furniture products— and containing slabstock or underlay manufactured by Defendants or their co-conspirators(Doc. 577 at 1 n.l). Both Motions seek certification of classes under Federal Civil Rule 23(a) and (b)(3) (Doc. 577 at 1; Doc. 584-1 at 34-38).
To be certified under Rule 23, a putative class action first must satisfy Rule 23(a), which provides:
One or more members of a class may sue or be sued as representative parties on behalf of all members 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.
Second, the putative class action must satisfy one of three sets of conditions under subsection (b) of the same Rule. Relevant here, Rule 23(b)(3) requires this Court to determine if:
[Questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Plaintiffs bear the burden of showing the relevant components of the rule are met. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir.1996), Rule 23(a) and (b)(3) require Plaintiffs to establish six requisites before a class may be certified: numerosity, commonality, typicality, adequacy, predominance, and superiority.
Some courts note a seventh “implied” requirement of “ascertainability.” See, e.g., In re High-Tech Employee Antitrust Litig., 289 F.R.D. 555, 563 (N.D.Cal.2013). Both proposed class definitions meet that requirement. For a class to be ascertainable, the proposed definition “must be precise, objective, and presently ascertainable.” It must not rely on “subjective” factors like a class member’s state of mind. “For example, the class may consist of those persons and companies that purchased specified products ... from the defendants during a specified period____” Ann. Manual On Complex Lit. § 21.222 (4th ed.).
At the class certification stage, Plaintiffs must show that there are “in fact sufficiently numerous parties, common questions of law or fact, typicality of claims or defenses, and adequacy of representation” under Rule 23(a), and must further “satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Comcast Corp. v. Behrend, *236 — U.S. -, 133 S.Ct. 1426, 1432, 1436 , 185 L.Ed.2d 515 (2013) (internal quotation mark omitted) (emphasis in original). The Sixth Circuit recently declined to adopt a standard, embraced in other circuits, that would require “a district court, when deciding whether to certify a class [to] resolve factual disputes by a preponderance of the evidence.” Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402 , 418 n. 8 (6th Cir.2012) (internal quotation marks omitted). The court concluded there was “no reason to superimpose [on the Circuit’s longstanding “rigorous analysis” standard] a more specific standard”— specifically, a preponderance standard— “than the Supreme Court” did in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 , 131 S.Ct. 2541 , 180 L.Ed.2d 374 (2011). Id. But the court also concluded that “the result [in Gooch ] would not differ [if a preponderance standard had been adopted] ... because factual issues [were] not in play.” Id.
The “rigorous analysis” in which this Court must engage may “overlap with the merits of the plaintiffs underlying claim.” Comcast Corp., 133 S.Ct. at 1436 . See Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 , 168 (3d Cir.2001) (“In reviewing a motion for class certification, a preliminary inquiry into the merits is sometimes necessary to determine whether the alleged claims can be properly resolved as a class action.”). But at the same time, this Court has no “license to engage in free-ranging merits inquiries” at this stage of the proceedings. It may consider “[m]erits questions ... to the extent — but only to the extent — that they ai*e relevant to determining whether Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Con. Retirement Plans and Trust Funds, 568 U.S. -, 133 S.Ct. 1184, 1195 , 185 L.Ed.2d 308 (2013). See also Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir.2012) (noting a district court’s class certification inquiry is not “a dress rehearsal for the trial on the merits”); Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 677 (7th Cir.2001) (“A court may not say something like ... ‘I’m not going to certify a class unless I think that the plaintiffs will prevail’ ”). Where this Court must probe merits questions, it must resolve any material evidentiary disputes. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 324 (3d Cir.2008) (the task of “[r]esolving expert disputes in order to determine whether a class certification requirement has been met is always a task for” a district court). See also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.2011) (noting a district court erred when “[i]nstead of judging the persuasiveness of the evidence presented, the district court seemed to end its analysis of the plaintiffs’ evidence after determining such evidence was merely admissible”).
This Court’s Rule 23 inquiry requires it to “sift[ ] the [parties’] evidence through the sieve of the legal claims.” In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 852 (6th Cir.2013) (“In re Whirlpool Corp.”), cert. denied, Whirlpool Corp. v. Glazer, — U.S. -, 134 S.Ct. 1277 , 188 L.Ed.2d 298 (2014). Plaintiffs must prove: “(1) Defendants violated [the Sherman Act or, in Indirect Purchasers’ case, state-law analogues]; (2) Defendants’ violation caused Plaintiffs to suffer some injury to their business or property (injury-in-fact or impact); and (3) the extent of this injury can be quantified with requisite precision.” In re Cardizem CD Antitrust Litig., 200 F.R.D. 326, 331 (E.D.Mich.2001). Thus, Rule 23 proof is framed in terms of liability, impact, and damages. In addition, because each putative class seeks damages for purchases made during the entire Class period, they must show fraudulent concealment is susceptible of proof on a classwide basis. See Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 446 (6th Cir.2012) (listing the three elements of fraudulent concealment, proof of which is necessary to toll applicable statutes of limitations). “The nature of the evidence that will suffice to resolve a question determines whether the question is common or individual.” Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir.2005).
Should this Court conclude that either Motion should be granted, this Court must then appoint class counsel, considering under Rule 23(g)(1)(A):
(i) the work counsel has done in identifying or investigating potential claims in th[is] action;
*237 (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in th[is] action;
(iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class.
This Court may also consider other relevant factors outlined in Rule 23(g)(l)(B)-(D). Appointed class counsel must “fairly and adequately represent the interests of the class.” Rule 23(g)(4).
Plaintiffs Satisfy Rule 23(a)
Each putative class satisfies the numerosity requirement of Rule 23(a)(1), a point Defendants do not dispute. “[W]hile there is no strict numerical test, ‘substantial’ numbers usually satisfy the numerosity requirement.” Daf fin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir.2006). As noted below in this Court’s predominance discussion, expert analysis shows each proposed class contains (at minimum) thousands of members.
Nor do Defendants seriously dispute that each putative class has identified “questions of law or fact common to the class.” Rule 23(a)(2). Plaintiffs need identify only one common question of law or fact for purposes of “commonality.” See Wal-Mart Stores, Inc., 131 S.Ct. at 2556 . See also Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir.1998). The resolution of a common question must “drive the resolution of the litigation.” Wal-Mart Stores, Inc., 131 S.Ct. at 2551 . See also In re Deepwater Horizon, 739 F.3d 790, 811 (5th Cir.2014) (characterizing a plaintiffs commonality burden as requiring “evidence to demonstrate that a particular contention is common, but not that it is correct” or true). Plaintiffs’ identified common questions do just that — they are common and critical, in that resolution of all putative class members’ claims depend on a single answer provided by a factfinder (see Doc. 584-1 at 35 (noting common questions to include the existence of the alleged price-fixing and customer allocation conspiracy, antitrust injury, and aggregate damages calculations); Doc. 578 at 23-24 (same)).
Rule 23(a)(3) demands that “claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” This element of the Rule serves to “limit the class claims to those fairly encompassed by the named plaintiffs claims.” Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 , 100 S.Ct. 1698 , 64 L.Ed.2d 319 (1980). “[A] plaintiffs claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.” In re Am. Med. Sys., Inc., 75 F.3d at 1082 .
Defendants argue in passing that the claims of certain Indirect Purchasers are atypical of the class claims (Doc. 680 at 22). Defendants note that two Indirect Purchasers — Kathleen Nolan and Kirsten Luenz— received rebates or other discounts when purchasing the products on which their claims are predicated — in Nolan’s case, a pillow, and in Luenz’s case, mattresses (id.). But Defendants do not, and cannot, dispute that Nolan and Luenz assert claims based on a legal theory, which, if proven, would also entitle those less thrifty class members to recover. See Sprague, 133 F.3d at 399 (noting typicality does not exist if “a named plaintiff who proved his own claim [does] not necessarily prove[] anybody else’s claim.”). See also In re Cardizem CB Antitrust Litig., 200 F.R.D. 297, 304 (E.D.Mich.2001) (“[C]laims in antitrust price-fixing cases generally satisfy Rule 23(a)(3)’s typicality requirement, even if members purchase different quantities and pay different prices”). If Nolan and Luenz secure damages in this ease, they would do so only because a factfinder has accepted Indirect Purchasers’ proof establishing the alleged conspiracy and found credible and persuasive expert analysis of impact and damages. So too for the other class members’ claims.
Defendants’ standing-based challenges to Nolan and the Parker entities fare no better. (See Doe. 742 at 79-80 (Nolan testimony establishing Nolan and her spouse jointly purchased the pillow on which Nolan’s claim depends); id. at 82, 84, 86, 88 (assigning to Parker claims of the Parker-related enti *238 ties)). Similarly, Defendants argue that “the entities on whose behalf Driftwood is suing specifically disclaim any legal agency relationship between Driftwood and them” (Doc. 680 at 23). That assertion is based on the deposition testimony of a Driftwood corporate deponent who does not offer any legal conclusion as to whether an agency relationship exists between Driftwood and the various hotels on whose behalf Driftwood sues (Doc. 680-5 at 5). Nor do the management agreements preclude Driftwood from suing on a managed hotel’s behalf — in fact, each of the management agreements obligates Driftwood to act in that capacity. For five hotels, the management agreements specifically identify Driftwood as an “agent” of the hotel it manages and, further, obliges Driftwood to sue on the hotels’ behalf (see Doc. 742 at 95, 105, 118-19, 130, 143-44, 157,172, 182). For three other hotels, Driftwood is not described as an “agent,” but is nonetheless required to sue on the managed hotel’s behalf (id. at 198, 232, 270). Thus, typicality exists with respect to the claims of the putative classes’ representatives.
Finally, Rule 23(a)(4) requires a finding that “the representative parties will fairly and adequately protect the interests of the class.” This component of Rule 23 focuses this Court’s attention on the qualities of both the class representatives and proposed class counsel. “The representative must have common interests with unnamed members of the class, and [ ] it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” Vassalle v. Midland Funding LLC, 708 F.3d 747, 757 (6th Cir.2013) (alterations omitted) (quoting In re Am. Med. Sys., Inc., 75 F.3d at 1088 ). But “[b]eeause few people are ever identically situated, it is easy to paint an image of the class representative’s interests as peripherally antagonistic to the class. That depiction does not make [a] plaintiff an inadequate representative.” Gooch, 672 F.3d at 429 . See also Matamoros v. Starbucks Corp., 699 F.3d 129, 138 (1st Cir.2012) (“Put another way, to forestall class certification the intra-class conflict must be so substantial as to overbalance the common interests of the class members as a whole.”). A supposed conflict should doom class certification only if that conflict is “fundamental.” Ward v. Dixie Nat. Life Ins. Co., 595 F.3d 164, 180 (4th Cir.2010).
Plaintiffs identify the proposed class representatives’ “common interests” to establish the existence of the alleged price-fixing conspiracy and to recover damages (Doe. 584-1 at 37; Doc. 578 at 25). Each touts the skills of proposed class counsel, and argue the time and resources invested by proposed class counsel to date show proposed class counsel will vigorously litigate the class claims (Doe. 584-1 at 37-38; Doc. 578 at 26).
Defendants do not dispute either group of proposed class counsel are “qualified counsel” for the purposes of Rule 23. This Court agrees. Instead, Defendants point to characteristics of specific class representatives, and argue these characteristics create conflicts between class representatives, as well as with the class. With respect to Direct Purchasers, Defendants note the breadth of the proposed class — encompassing slabstock, underlay, and fabricated foam— and then emphasize two facts: five of seven class representatives produced and sold fabricated foam “in direct horizontal competition with Defendants” and so made sales of fabricated foam that “benefitted” from the inflated pricing environment created by the alleged conspiracy (Doc. 682 at 65); and two of seven class representatives sourced large portions of their flexible foam purchases from firms who are not defendants, and so are “hardly representative of purchases by the class Plaintiffs seek to create.” (Id. at 66). Direct Purchasers counter that in earlier downstream discovery orders (see Docs. 420 & 458), this Court rejected the premise of Defendants’ conflicts argument (see Doc. 744 at 6).
This Court concludes Direct Purchasers satisfy the adequacy requirement. That two of the seven class representatives purchased large amounts of flexible foam products from non-defendant firms does not change the fact that the same class representatives also seek recovery of alleged antitrust overcharges on purchases from Defendants. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 , 532 (3d Cir.2004). This is hardly a “funda *239 mental conflict” (if a conflict at all). See Schlaud v. Snyder, 717 F.3d 451, 458 (6th Cir.2013) (noting a “clear conflict” between named representatives, all of who opposed union representation “in any form,” and members of the class, many who approved the collective bargaining agreement and its challenged mandatory dues provision). Nor is Defendants’ conflicts argument, touching on the competitor foam fabricator class representatives, a basis for denying certification of a Direct Purchaser class. This Court’s prior downstream discoveiy orders do not resolve this issue, but they come close.
Specifically, Defendants’ conflicts argument necessarily would require the competitor foam fabricators who wish to serve as class representatives to not only show they have individual standing to bring an antitrust claim (Doe. 584-14 at 130), but to also show lost profits (or lower profit margins) during the Class Period in the relevant areas of competition. After all, how else could these competitors avoid Defendants’ painting them as “benefitting” from the alleged conspiratorial pricing? But the Hanover Shoe line of eases, embraced by this Court in its downstream discovery orders, deem an antitrust plaintiffs lost profits irrelevant for purposes of impact and damages:
It is also clear that if the buyer, responding to the illegal price, maintains his own price but takes steps to increase his volume or to decrease other costs, his right to damages is not destroyed. Though he may manage to maintain his profit level, he would have made more if his purchases from the defendant had cost him less. We hold that the buyer is equally entitled to damages if he raises the price for his own product. As long as the seller continues to charge the illegal price, he takes from the buyer more than the law allows. At whatever price the buyer sells, the price he pays the seller remains illegally high, and his profits would be greater were his costs lower.
Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 489 , 88 S.Ct. 2224 , 20 L.Ed.2d 1231 (1968). See also Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251 , 262 n. 14, 92 S.Ct. 885 , 31 L.Ed.2d 184 (1972).
This Court joins those courts that have found the logic of Hanover Shoe extends to also reject conflicts arguments based on the fact that a representative plaintiff may have “benefitted” from the anticompetitive conduct they challenge. Teva Pharm. USA, Inc. v. Abbott Labs., 252 F.R.D. 213, 227 (D.Del.2008); Meijer, Inc. v. Warner Chilcott Holdings Co. III, Ltd., 246 F.R.D. 293, 304 (D.D.C.2007) (holding “Defendants’ arguments that the [representative parties] actually benefitted from the delayed entry of [a generic drug] into the market due to the generic bypass phenomenon are irrelevant as a matter of law, and cannot serve to demonstrate that a conflict exists between Plaintiffs’ interests and those of the [“benefitting” parties] with respect to this litigation”). Defendants’ conflicts arguments, based on the fact of foam fabricator competition, are speculative, and are leveled in the face of a proposed damages methodology that would first calculate classwide damages, and then award each representative party and class member the full amount of damages to which the Sherman Act entitles them, based on transaction-level data. See Newberg on Class Actions § 3:64 (5th ed.) (noting “this form of conflict should not preclude a finding of adequacy on merely speculative terms as, for example, it will almost always be the case that some member in a large class prefers the status quo for some reasons”). And in any event, were these hypothetical conflicts to become conflicts in fact (e.g., in the context of a class settlement), mechanisms exist for addressing this issue. See Kohen v. Pacific Inv. Mgmt. Co. LLC, 571 F.3d 672, 680 (7th Cir.2009).
Plaintiffs Satisfy Rule 23(b)(3)
In recognition of the fact that Rule 23’s predominance requirement is “more stringent” than other elements of the Rule, Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 609 , 117 S.Ct. 2231 , 138 L.Ed.2d 689 (1997), the overwhelming focus of the briefing discusses whether Direct or Indirect Purchasers can show that common questions of fact or law predominate over those questions “affecting only individual members.” Rule 23(b)(3). To carry their Rule 23(b)(3) burden, Direct and Indirect Purchasers offer *240 documentary evidence, deposition testimony, and the expert reports of Leitzinger, Krieger, Gordon (for Direct Purchasers), and Lamb (for Indirect Purchasers). Defendants reply in kind, offering contrary expert reports of Ordover, Burtis (for Mohawk and Leggett & Platt), the Sentinel Group, and Maness (for Vitafoam). 3
At this stage of the litigation, Plaintiffs’ burden as it relates to predominance is “not to prove [ (for example) ] the element of antitrust impact.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d at 311. Plaintiffs must instead show that the essential elements of their claims are “capable of proof at trial through evidence that is common to the class rather than individual to its members.” Id. at 311-12 (emphasis added). This inquiry necessarily requires this Court to form “some prediction as to how specific issues will play out” in terms of trial proof, particularly when a class certification decision is made on the basis of an incomplete discovery record. In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 20, 27 (1st Cir.2008). The predominance inquiry gauges whether a proposed class is cohesive enough to “warrant adjudication by representation.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 564 (6th Cir.2007) (internal quotation marks omitted) (quoting Amchem Prod., Inc., 521 U.S. at 632 , 117 S.Ct. 2231 ).
The Sixth Circuit has expanded on this predominance burden at some length, in the course of examining recent Supreme Court class action jurisprudence. See In re Whirlpool Corp., 722 F.3d at 858-61 . In this Circuit’s view, Amgen instructs that a plaintiff need not “prove that each element of a claim can be established by classwide proof: What the rule does require is that common questions predominate over any questions affecting only individual [class] members.’” Id. at 858 (emphasis and alterations original) (internal quotation mark omitted) (quoting Amgen Inc., 133 S.Ct. at 1196 ). Comcast did not alter that burden: it merely “reaffirms the settled rule that liability issues relating to injury must be susceptible of proof on a classwide basis to meet the predominance standard.” Id. at 860. See also id. (concluding Amgen and Comcast “are premised on existing class-action jurisprudence”). But see In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 255 (D.C.Cir.2013). All that is needed is “common evidence and methodology,” not “also common results for members of the class.” Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir.2013), cert. denied, — U.S. -, 134 S.Ct. 1277 , 188 L.Ed.2d 298 (2014). See also Amgen Inc., 133 S.Ct. at 1196 (noting putative class representatives “need not, at th[e clas certification] threshold, prove that the predominating question will be answered in their favor”).
Defendants attempt to distinguish In re Whirlpool Corp., noting the case involved products liability claims with impact occurring at the point of sale (see Doc. 682 at 21 n.3). But while that ease’s discussion of the predominance standard occurred in a specific factual context — as all Rule 23 cases do— there is no reason to conclude In re Whirlpool Corp.’s instructive analysis is limited to products liability class action litigation. After all, In re Whirlpool Corp. expounds Com-cast and Amgen, which undoubtedly control this Court’s analysis. See Merenda v. VHS of Mich., Inc., 296 F.R.D. 528, 548 *241 (E.D.Mich.2013) (citing In re Whirlpool Corp. for its predominance analysis in the course of certifying a plaintiff class asserting federal antitrust claims). See also Cason-Merenda v. VHS of Mich., Inc., 2014 WL 905828 (E.D.Mich.2014) (“reinstating in full” the district court’s prior opinion and order, following an order from the Sixth Circuit directing the district court to reconsider its prior decision in light of Comcast ). 4
Analysis of whether Plaintiffs satisfy Rule 23’s predominance requirement “begins, of course, with the elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804 , 131 S.Ct. 2179, 2184 , 180 L.Ed.2d 24 (2011). Therefore, this Court wades through the parties’ proof by examining liability, impact, damages, and, finally, fraudulent concealment. This Court conducts a “rigorous” analysis of Direct Purchasers’ predominance showing, followed by a similar analysis of Indirect Purchasers’ attempt to satisfy the same requirement.
* * *
Direct Purchasers’ Liability Proof
Direct Purchasers allege that the conspiracy centered on the issuance of price increase letters “close in time and for the same or similar amounts and effective dates” throughout the Class Period (Doc. 584-1 at 16). Direct Purchasers submit examples of these price increase letters (584-7 at 2-188). Similarly, Leitzinger prepared a chart, listing for each quarter the Defendants who issued price increase letters; the percentage price increase reflected in the letter; and the foam products to which the letter applied (Doe. 584-14 at 121-22). The price increase letters typically attribute increased foam prices to increases in raw materials prices. Or more specifically, the price increase letters claim that “[suppliers of polyol and TDI have substantially increased their prices to the urethane industry” or that the cost of trim had risen (Doc. 584-7 at 43-44,149). These price increase letters typically applied to broad product segments (see, e.g., id. at 11) (Foamex letter announcing price increase for “all grades of Polyurethane foam”), and provided the starting point for price negotiations with customers (Doc. 584-9 at 163).
Direct Purchasers offer witness declarations that throughout the Class Period there were communications between foam industry competitors “to coordinate the percentage amount and timing of price increases for foam” so that individual Defendants could enter account negotiations “knowing that [] competitors had also issued the same or a nearly identical increase,” limiting a customer’s ability to “play [competitors] against [ ] competitors and either negotiate a much lower increase or no increase at all” (Doc. 584-11 at 14-15). See also Doc. 584-9 at 8 (describing Defendants’ discussions about, and the exchange of, price increase letters as aimed at helping “push through price increases” for foam products); Doc. 584-15 at 39; id. at 10-11 (noting that “purchasing agents” for customers are “paid to tell stories” about a Defendant’s competitors’ pricing decisions).
Direct Purchasers argue that five categories of documentary or deposition evidence establish the patterns in price increase letters resulted from the price-fixing conspiracy. First, Direct Purchasers offer “direct evidence” of communications between Defendants about foam pricing (see, e.g., 584-2 at 58-59; Doc. 584-3 at 2 (Leggett & Platt email noting Carpenter, Foamex, and Future Foam price increases and Leggett & Platt’s intention to “have our letters ready to mail to selected accounts”); Doc. 584-4 at 11; id. at 59 (Leggett & Platt email recounting sender’s price discussions with Vitafoam and Hickory Springs, and noting “Carpenter wants Foamex to lead”)). This “direct evi *242 dence” includes materials that Direct Purchasers claim show “advance knowledge” of a competitor’s impending price increases (see, e.g., Doc. 584-5 at 91 (Leggett & Platt employee e-mailing to Flexible Foam employee an “initial draft” price increase letter, expected to be mailed to customers one or two business days later); id. at 82 (draft Foamex letter with “tracked changes,” notifying customers of Foamex plans to “allocate products to [Foamex] customers,” produced in discovery in this matter by Carpenter)). Direct Purchasers also offer documents in which the employees of Carpenter and Woodbridge make none-too-subtle allusions to price-fixing (see, e.g., id. at 124 (email of Woodbridge employee, concluding with the observation that “I think we should go strong and tr[y] to keep Vita and [Foamex] on board. Forget [market] share for now — fix pricing.” (line break omitted))
Direct Purchasers also collect a series of faxed price increase letters, in which the letter’s header shows the transmitting Defendant, while the Bates stamp shows the Defendant that (directly or indirectly) received the letter and later produced the document in discovery. For instance, Vitafoam produced a March 2000 Foamex price increase letter (Doc. 584-6 at 6), while Hickory Springs produced a June 2004 Future Foam price increase letter (id. at 12). Direct Purchasers offer a second compilation of price increase letters, sent by fax or e-mail, except this collection shows one Defendant transmitting to another Defendant the price increase letters of a third Defendant or group of Defendants (see, e.g., id. at 123-24 (Future Foam employee sending “Carpenter Price Increase Letter Third one” to Vitafoam employee)). Defendants also exchanged price increase letters in face-to-face meetings (Doc. 584-15 at 67).
Second, Direct Purchasers point to “indirect communications” between Defendants. Specifically, Direct Purchasers offer evidence that Defendants communicated about price coordination through third-parties. See, e.g., Doc. 584-8 at 38 (scrap broker sending Carpenter a Leggett & Platt price increase letter); id. at 42-44 (scrap broker sending Carpenter the price increase letters of Hickory Springs, Scottdel, and Flexible Foam); Doc. 584-8 at 71-72; Doc. 584-9 at 139 (email from Woodbridge employee to WoodbridgeHickory Springs joint venture employee, asking for, and later receiving, price increase information on “what Hickory is doing”).
Third, Direct Purchasers offer evidence that, during periods in which price increase letters were issued, Defendants refused new customers because a new “customer would only come[ ] to [a Defendant] in an attempt to beat the price increase” and the price increase was “more important to [a Defendant] than a little additional business” (Doc. 584-8 at 75).
Fourth, Direct Purchasers emphasize the “admissions” of Vitafoam, made during Vita-foam’s 30(b)(6) deposition in related litigation. Specifically, Vitafoam’s corporate witness agreed that the Vitafoam Defendants— Vitafoam Canada and Vitafoam, Inc. — had “communicated and reached understandings on the percentage amount and timing of price increases and market allocation in the sale of polyurethane foam” (Doe. 584-10 at 13). Vitafoam’s witness specifically identified FXI, Woodbridge, Carpenter, Hickory Springs, and Future Foam as the Vitafoam partners in these “understandings” (Doe. 584-1 at 29).
Finally, Direct Purchasers note that twenty employees of four Defendants have invoked their Fifth Amendment privileges against self-incrimination in the course of depositions in this matter (id. at 30 n. 1 (cataloguing witness who invoked the privilege as of summer 2013)).
Direct Purchasers argue all of this evidence — the price increase letters themselves and patterns among Defendants in issuing price increase letters, direct and indirect communications between Defendants about pricing, certain Defendants’ stated refusal to pursue new customers through price competition during a period in which a price increase letter was in effect, the Vitafoam “admissions,” and deponents’ Fifth Amendment invocations — establish that Direct Purchasers “will seek to show through common proof at trial that Defendants coordinated the substance and timing of price increase letters on a national level to all customers for all flexi *243 ble polyurethane foam products each defendant sold.” Direct Purchasers will use the same proof to answer for each class member questions like “did the conspiracy exist” and “for how long did it exist?” (see Doe. 584-1 at 42), 5
Defendants counter with two related arguments. First, Defendants argue the price-fixing conspiracy alleged in the Complaint did not exist, a fact borne out by the failure of discovery to “yield[] evidence of any agreement among foam manufacturers in the [United States] to fix the timing or content of price increase” letters (Doc. 682 at 24). Defendants characterize the declarations of the Domfoam and Valle Foam witnesses as expressly disclaiming “that they ... ever entered into an agreement with any Defendant to fix prices or allocate customers” (id.). See also Doc. 682-6 at 68 (“Q: So ... [was] your decision to pass on a price increase [letter] ... the result of an agreement with another company ... ? [objection omitted] A: No, [it was not result of an agreement] with anybody”); Doe. 682-7 at 4 (same); Doc. 682-8 at 3 (same)). But see Doc. 744-2 at 17 (testifying that in the aftermath of chemical price increases “[m]eetings weren’t held by all the foamers saying, ‘Okay. Now it is time. We’ve got to put letters out.’ But on an informal basis, ‘I’m raising prices, and its going to be on this date and this percent. And here’s evidence of what I’m going to do [in the form of exchanged price increase letters]’____ So that’s as sophisticated as we got in assuring that everybody was on the same page in terms of getting prices up when there was a chemical price increase.”) (paragraph break omitted)).
Defendants cast Vitafoam’s corporate depositions, taken in related litigation, in the same light (Doc. 682-5 at 4). But see Doc. 584-10 at 13 (relating testimony of Vita-foam’s corporate witness that she was “struggling with, ... the word ‘agreement,’ ” but agreeing that Vitafoam reached “understandings” with other Defendants as to the “percentage amount and timing of price increases”). In the absence of specific evidence of express agreements to fix prices, Defendants argue that Direct Purchasers merely attempt — unsuccessfully—to transform “field chatter and attempts to gather competitive intelligence into” the conspiracy (Doc. 682 at 25) (quotation marks omitted).
Second, and similarly, Defendants argue market reality, consistent with legal and economic theory predictions of behavior in concentrated markets, shows only independent behavior by firms faced with the same supply and demand conditions. Defendants argue these independent decisions are bare conscious parallelism, or “the process, not in itself unlawful, by which firms in a concentrated market might in effect share monopoly power, setting their prices at a profit-maximizing, supracompetitive level by recognizing their shared economic interests and their interdependence with respect to price and output decisions.” Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227 , 113 S.Ct. 2578 , 125 L.Ed.2d 168 (1993).
It would, of course, be inappropriate for this Court to decide, on the basis of an incomplete discovery record and in the context of a motion for class certification, that Defendants are correct in arguing the conspiracy did not in fact exist. This Court’s *244 inquiry focuses instead on whether, on the basis of this record, the element of antitrust liability is susceptible of proof through evidence common to the class.
Defendants may be correct in the significance they attach to Direct Purchasers’ liability evidence. But if so, that fact simply would mean summary judgment would be appropriate as to the Direct Purchaser class, or that a trier of fact should reject Direct Purchasers’ liability arguments. Defendants do not succeed in showing liability questions — however answered — cannot be answered thi-ough common proof. Like the defendant in In re Whirlpool Corp., Defendants simply point to “a fatal similarity!!,] an alleged failure of proof as to an element of the [Direct Purchasers’] cause of action,” that this Court may not yet resolve. In re Whirlpool Corp., 722 F.3d at 859 . This Court concludes that, considered as a whole, the Direct Purchaser class certification evidentiary record does support such a finding.
Direct Purchasers’ Impact Proof
“[T]he task for plaintiffs at class certification is to demonstrate that the element of antitrust impact is capable of proof at trial through evidence that is common to the class rather than individual to its members.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d at 311-12 . Direct Purchasers need only produce a method of proof capable of showing “some damage flowing from the unlawful conspiracy; inquiry beyond this minimum point goes only to the amount and not the fact of damage. It is enough that the illegality is shown to be a material cause of the injury.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 , 114 n. 9, 89 S.Ct. 1562 , 23 L.Ed.2d 129 (1969) (emphasis added). Direct Purchasers must show “that the class members paid a higher price for [foam products] purchased from Defendants than they would have absent the existence of a conspiracy.” In re Titanium Dioxide Antitrust Litig., 284 F.R.D. 328, 340 (D.Md.2012) amended, 962 F.Supp.2d 840 (D.Md.2013). To show impact is susceptible of proof on a elasswide basis, Direct Purchasers must show “widespread impact,” or that all or nearly all class members suffered injury:
What is true is that a class will often include persons who have not been injured by the defendant’s conduct; indeed this is almost inevitable because at the outset of the case many of the members of the class may be unknown, or if they are known still the facts bearing on their claims may be unknown. Such a possibility or indeed inevitability does not preclude class certification, despite statements in some cases that it must be reasonably clear at the outset that all class members were injured by the defendant’s conduct. Those cases focus on the class definition; if the definition is so broad that it sweeps within it persons who could not have been injured by the defendant’s conduct, it is too broad.
Kohen, 571 F.3d at 677 (emphasis added) (citations omitted).
Direct Purchasers’ proposed proof on impact comes in four forms. First, Direct Purchasers refer back to evidence, discussed above in the context of antitrust liability, purporting to show Defendants “systematically and collusively coordinated ... nearly-simultaneous price increase” letters that applied to all of a Defendant’s flexible foam products (see Doc. 584-7 at 42), or to all products in a foam sub-market (see id. at 87). Second, Direct Purchasers state the price increase letters did not just announce price increases, but paved the way for actual price increases after individual negotiations with customers. Third, Direct Purchasers point to foam’s commodity nature, which dictates that competition occur primarily on the basis of price. And finally, Direct Purchasers offer Dr. Leitzinger’s analysis of market structures and his impact models (Doc. 584-1 at 44-47). Defendants vigorously dispute that any of these facts can support classwide proof of impact, relying heavily on dueling expert reports, which are examined next. See In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 42 (2d Cir.2006) decision clarified on denial of reh’g., 483 F.3d 70 (2d Cir.2007). Leitzinger’s assertion that there is evidence “common to members of the proposed class ... which leads to the conclusion that all or virtually all members of the proposed class have been impacted by the alleged conspiracy” rests on three analytical components, summarized in turn below: (1) *245 inferences drawn from market structure; (2) Defendants’ pricing behavior; and (3) statistical evidence of impact (Doc. 584-14 at 42).
Market Structure
Leitzinger’s review of the discovery to date leads him to conclude that there are five characteristics of the flexible foam market that make this case susceptible to a showing that all or nearly all direct purchasers suffered antitrust injury. Fust, throughout the Class Period Defendants controlled the vast majority of the slabstock and underlay markets. Defendants’ own internal estimates of concentration in the relevant sub-markets bear this out. A series of Foamex and FXI estimates show Defendants, as a group, gradually increasing their control of the slabstock market until achieving almost total control of that market: in 2000, Defendants controlled 85 percent of the slabstock market; that number rose to 89 percent in 2003; and to 96 percent in 2010 (id. at 26-27). Market concentration is actually more pronounced, because Foamex estimated in 2009 that just four Defendants accounted for 87 percent of domestic slabstock production (id. at 27-28). Leggett & Platt estimated in 2001 that 91 percent of the underlay market rested in the hands of Defendants, while a 2009 FXI document estimated Defendants held 94 percent market share in that industry (id. at 27).
The upshot of all these concentration figures is straightforward. With such a large portion of the relevant sub-markets controlled by Defendants, it is unlikely that a substantial number of direct purchasers would have avoided the alleged conspiracy’s price effects. And, high market concentration, particularly with certain Defendants’ focus in one sub-market, reduces coordination costs, increases the likelihood that a price-fixing conspiracy would have been successful, and increases the scope of the conspiracy’s likely price effects.
Second, several barriers to entry substantially impede firms from entering the slab-stock or underlay markets. A Foamex investment analysis concludes barriers to entry are “relatively high” in the industry, specifically observing that to be competitive with existing market participants, new entrants must: be able to purchase foam inputs on a large scale to take advantage of purchasing economies; make substantial capital investments before beginning foam production; possess certain expertise in large-scale foam production processes; and gain access to large foam direct purchasers, like Wal-Mart. Moreover, foam inputs, including TDI, are heavily-regulated hazardous materials, the proper handling of which may be cost-prohibitive for smaller firms looking to penetrate the foam market. Producing foam itself subjects a firm to still more regulatory requirements, such as federal and state clean air standards (id. at 29-30).
Even if a firm could overcome these initial barriers with respect to either slabstock or underlay, Defendants’ substantial excess capacity in each sub-market would allow Defendants to flood either market with increased production, causing slabstock or underlay prices to plummet, thus preventing the new entrant from recouping on the investment needed to enter the market (id. at 31-35). These various barriers block a non-conspirator firm from newly entering the slabstock or underlay markets in hopes of undercutting the alleged cartel’s supracompetitive pricing decisions, and support a finding that common evidence exists to show that all or nearly all direct purchasers suffered antitrust injury (id. at 28-29 (“[ejntry barriers discourage new competitors (who might otherwise be attracted by inflated prices) who could in turn destabilize the conspiracy or create pockets of competitive pricing that would limit the scope of the conspiracy’s impact.”)).
Third, demand for flexible foam products is inelastic. For the effect of a price conspiracy to be widespread, a price-increase driven decline in sales volume must “not outweigh the benefit of higher prices” (id. at 35). Put differently, collusion is more likely to occur, and its effects are more likely to be widespread, when conspirators can profit more from selling less of a product at a higher, supracompetitive price than by selling more of a product at a lower, competitive price. A cartel’s chance of fixing a supracompetitive price that pulls off that balancing act increases in tandem with the inelasticity of the product’s demand. And that inelasticity depends, in part, on the existence (or not) of *246 acceptable substitutes for the product (id. at 35-36), or the product’s share of end-use product costs (id. at 39).
Leitzinger bases his conclusions that demand for flexible foam is inelastic on discovery materials that describe flexible foam gradually supplanting alternative cushioning materials, like polyester fibers, natural latex, and resinated cotton. A 1996 “Economic Impact Analysis,” authored by the U.S. Environmental Protection Agency, compares flexible foam to its “primary substitute for slabstock in cushioning applications,” polyester fiber, noting flexible foam’s superior product qualities (id. at 37-38 (citing similar comparisons generated by the Polyurethane Foam Association and La-Z-Boy, Inc.)). Leitzinger offers similar observations with respect to bedding applications (id, at 38) and underlay (id. at 39). Because slabstock, as an intermediate material, comprises a relatively small share of end-use product costs, furniture and bedding manufacturers are relatively insensitive to flexible foam price increases (id. at 39-40).
Fourth, there exists evidence establishing that slabstock and underlay are “commodities,” as economic literature defines that term. The more closely flexible foam products resemble a prototypical commodity, like gasoline of a given grade, the more cohesive an industry cartel will be and the more widespread the price effects. This is so because cartel members would need to reach agreement, and then police that agreement, only with respect to one product characteristic: price (id. at 43). Though Defendants produce a wide range of slabstock grades, varying according to product characteristics like foam density or IFD, discovery materials show Defendants and their customers could identify and compare each Defendant’s version of a given slabstock grade (see, e.g., id. at 40-41 (citing Flexible Foam documents comparing equivalent but differently-named slabstock foam grades for bedding uses between Flexible Foam, Foamex, and Carpenter)). An FXI employee testified that foam fabricators would buy buns “from anyone who had the lowest price that day” (id. at 41). Similar evidence is offered with respect to underlay, which Hickory Springs, Leggett & Platt, Foamex, and Carpenter all described as commodity-like products (id. at 41-42), with Mohawk making similar statements (id. at 42). Here, too, variability exists among underlay grades (see id. at 42 n.216 (explaining underlay grades as largely a function of density or specific product qualities like antimicrobial properties)), but again Defendants and their customers were able to compare these various grades on a price basis (id. at 42).
Fifth, because TDIs and polyols comprise such a large portion of flexible foam’s input costs, and because chemical manufacturers noticed similar price increases for these key inputs at similar times, there exists further evidence that the cartel’s price effects likely were widespread. All Defendants faced similar price increases from the chemical manufacturers. Therefore, Defendants had “ready focal point[s]” to use “as triggers for jointly established announcements regarding slabstock price increases,” further reducing the difficulties the alleged cartel would have faced in its efforts to agree on pricing (id. at 44).
In sum, then, Leitzinger draws inferences from the flexible foam industry’s market structure to paint that industry as one in which a few dominant firms, protected from outside competition by high barriers to market entry and using common foam input price announcements, succeeded in fixing the price of a commodity with an inelastic demand function. All those qualities provide common evidence that all or nearly all direct purchasers would have been impacted by the alleged cartel.
Pricing Behavior
Leitzinger further supports his common impact conclusion by pointing to the manner in which prices are set in the foam industry. Three aspects of Defendants’ pricing behavior would allow the conspiratorial conduct— fixing prices — to impact all or virtually all direct purchasers. First, price increase letters were not tailored to any particular customer or to any particular subset of foam products. In Carpenter’s case, central management drafted slabstock and underlay price increase letters. Once drafted, letter copies would be sent to local sales staff, who *247 would add a customer’s contact information and the local salesman’s signature (id, at 45). Each such letter contained some version of the salutation “Dear Customer” (id.). Moreover, with few exceptions, the percentage price increase reflected in each letter was uniform across Defendants’ foam product lines (id. at 46-47 (noting Carpenter, Flexible Foam, FXI, Future Foam, Hickory Springs, Leggett & Platt, Mohawk, Vitafoam, and Woodbridge letters signaled price increases across all slabstock or underlay products)).
Second, Defendants typically (though not always) were able to transform these generally-applicable price increase announcements into effective price increases. One indicator of this success, according to Leitzinger, is the repeated insistence of pricing executives that no customer be excepted from the price increase percentage reflected in a given price increase letter (see id. at 48-50). When exceptions were permitted — typically following negotiations that used the announced price increase percentage as the jumping-off point for discussions — a price increase letter could still be “partially successful” by leading to a percentage price increase, even if the effective price increase was less than the amount reflected in the price increase letter or had a later effective date than was announced in a price increase letter (id. at 50-51 (recounting certain Defendants accepting a lower percentage price increase or delaying the price increase after receiving customer pushback following release of a letter)). Slabstock and underlay price indexes, constructed using Defendants’ transactional data, show Defendants’ effective price increases generally closely track one another (id. at 123-24).
Third, Defendants set prices in such a way as to limit customer-specific deviations from generally-enforced profit margins. This aspect of Defendants’ pricing behavior reflects institutional pricing controls, and differs from the “no-exceptions” instructions, noted above, that pricing executives sent along with price increase letters (see id at 48-49). For example, Carpenter uses a “centrally administered minimum pricing system” for underlay, tied to profit margins over costs, which was aimed at “removing most of the [sales force’s] pricing flexibility” through a tiered system that accorded less price discretion to less senior sales officials (see id. at 52 (describing four levels of pricing minimum margins, which could only be disregarded with approval from Carpenter’s Vice President for the underlay division)). Likewise, Carpenter used “branch prices” for slabstock price quotes that could be tailored to specific grades (id at 53-54 & 54 n.293 (noting standard “upcharges” above branch prices for convolution)), while Foamex used a system for slabstock pricing similar to Carpenter’s tiered limits on minimum margins for underlay (id. at 54-55). See also id. at 55-57 (describing similar minimum price systems employed by Flexible Foam, Future Foam, and Leggett & Platt).
Leitzinger thus paints a pricing system among Defendants that results in all or nearly all direct purchasers suffering antitrust impact. That process began with the publication of price increase letters that, with few exceptions, purported to apply to all customers and to all foam products. Price increase letter publication would then trigger negotiations with customers, who would attempt to drive down the quoted foam price. Based on Defendants’ pricing behavior, those attempts would have generally been unsuccessful as customers (1) would have to negotiate with a Defendant salesperson who was limited, by various minimum price or margin systems, in his or her ability to accept a lower sales price, or (2) would see similar benchmarks offered by all Defendants, owing to the coordination of price increase levels. “Given these [pricing] mechanisms,” Leitzinger concludes, “I find it implausible that customers in any significant number would have escaped the effects of repeated price increase announcements over a period of more than ten years” (id. at 57).
Statistical Evidence of Impact
Finally, Leitzinger presents the results of a regression analysis that isolates from other factors and then measures the impact of Defendants’ price increase letters on actual prices. He describes this mode of statistical inquiry as “particularly useful in separating the impact of an alleged anticompetitive act on market outcomes (such as pricing) from the impact of other influences” (id. at 61 *248 n.334 (quoting ABA Section of Antitrust Law, Proving Antitrust Damages 125-26 (2010)). For each Defendant, Leitzinger creates three separate models for each category of slabstoek — buns, rolls, and fabricated products — and for each grade — conventional, viscoelastic, and high resilience. He also estimates models for prime, standard, and premium underlay products (Doc. 584-14 at 61-62). All told, he runs 73 regression models (Doc. 967 at 29).
Leitzinger inputs several data sources into these models. First, he uses Defendants’ transactional data, which contain more than 50 million “transaction records” (excluding Woodbridge and Mohawk) consisting of some or all of the following information fields: product ID; foam grade; sales volume for a given transaction; price; rebates; “other price adjustments”; billing ID; and transaction date (Doc. 584-14 at 61). A billing ID is essentially an account number. Leitzinger synthesizes certain parts of this transactional data — billing ID, customer name, and location — to create a “master billing ID,” reflecting the purchases of “the same physical purchasing facility,” which may be represented in the transactional data by one or more product IDs (id. at 62 n,337).
Second, Leitzinger assembles a group of explanatory variables or regressors. Leitzinger’s first set of regressors represent those he seeks to isolate from his measurement of the effect on price of Defendants’ price increase letters. He compiles one regressor from a U.S. Bureau of Labor Statistics (“BLS”) producer price index (“PPI”) reflecting quarterly prices of TDI and polyols (id. at 57-58, 58 n.315, 62). Another regressor incorporates a “durable goods index,” a measure of demand for durable goods like furniture; demand for slabstoek is tied to demand for durable goods (id. at 58 & n.316, 62). A third regressor measures housing starts, described as a “driver of sales for both slabstoek and carpet cushion” in light of the demand new housing creates for furniture and carpeting (id, at 58-59, 58 ns.31718, 62). Finally, Leitzinger includes regressors representing imports of foam-containing products, like furniture and mattresses, and imports of underlay (id. at 59-60, 62).
Together, these various regressors create a “regression model [that] provides a series of rolling quarterly benchmarks for prices changes[ ] based on normal market effects on prices” (id. at 63). Then, Leitzinger adds a third data source, also as a regressor: Defendants’ allegedly conspiratorial price increase letters. He claims that these models make it “possible to see statistically the extent to which those [price increase letters] caused prices paid under a given Master Billing ID for a particular product type to increase more than otherwise would have been the case” (id.). See also ABA Section of Antitrust Law, Proving Antitrust Damages 125-26 (2010) (“An explanatory variable’s partial effect is the change in the dependent variable that would result from a change in the explanatory variable, holding all of the other explanatory variables constant”). The price increase letter variable is used to determine whether “price increase [letters] independently dr[o]ve prices higher” than the models would predict using only supply and demand variables (Doc. 967 at 104-05). 6
Leitzinger’s models report a supracompetitive premium for a given transaction whenever it returns a positive coefficient between a price increase letter and actual prices. A positive coefficient associated with a price increase letter for a given transaction means “it is more likely that the true effects of a price increase [letter] were positive than ... *249 zero or negative” (Doc. 584-14 at 63-64 n.344). The magnitude of that coefficient represents the “average percentage of the Defendant’s price announcements that Dr. Leitzinger interprets as anticompetitive” (Doc. 682-1 at 125). For instance, a coefficient estimate of 0.1657 indicates that roughly 17 percent of the price increase announced in a price increase letter is attributable to anticompetitive effects, according to a formula for converting the coefficient estimate into a percentage (id. at 125 & 127 fig. 23). See also id. at 101 n.216 (describing deposition testimony in which Leitzinger confirms this method of interpreting the magnitude of his estimated coefficients). In the context of a specific price increase letter, the .1657 impact coefficient means that if a Defendant announced a 10 percent price increase, 1.7 percent of that increase would represent antitrust impact. All told, Leitzinger’s framework yields over “32,000 separate Defendant, product[,] and customer-specific estimates” of the anticompetitive impact of the price increase letters, if any, before incorporating Mohawk data (id. at 124).
Leitzinger finds antitrust impact with respect to a given master billing ID whenever his models estimates for at least one of that master billing ID’s purchases a positive coefficient for a price increase letter. Leitzinger claims to be able to do so for more than 14,000 master billing IDs that “collectively accounted for roughly $18.1 billion of the $18.3 billion” of foam product purchases recorded in Defendants’ transactional data (Doc. 584-14 at 64) (emphasis added). In percentage terms, Leitzinger’s models find antitrust impact for customers who account for 99 percent of “purchases for which [he] could identify product form, foam type, and transactional details from Defendants’ produced data” (id.) Leitzinger also reports results showing the probability of his models’ generating a random effect for a given sales volume. With respect to 82 percent of the sales volume reflected in Defendants’ transactional data, Leitzinger finds a less than five percent likelihood that his models produced a spurious impact finding (id. at 65).
Leitzinger’s models can be adjusted so that if a particular set of price increase letters were deemed not the product of a conspiracy, those letters could be removed from the models, and thus “remove any potential effect of those announcements in terms of [generating] impact estimates” (Doc. 954-1 at 48). Leitzinger concludes his impact regression analysis by effectively “double-checking” his models’ results, using three alternative sets of assumptions to conduct sensitivity analyses. All three alternative sets of assumptions confirm his base models’ finding of antitrust impact for the overwhelming majority of revenues grouped by master billing IDs (see id. at 65-66 (using Carpenter’s price increase letters as an indicator of Defendants’ conspiratorial activity because Carpenter often led price increases, assuming the conspiracy ended slightly earlier than alleged, and gauging impact only with respect to large buyers)).
Ordover Challenges Leitzinger’s Analysis
Ordover and Burtis respond to Leitzinger’s proposed common-impact method of proof, with the latter expert focusing her efforts on the Direct Purchasers’ burden as it relates to the underlay market. Leitzinger then responds to both experts’ critiques. This Court turns first to the Ordover-Leitzinger disputes, and then to the Burtis-Leitzinger disputes.
As an initial matter, this Court finds portions of Ordover’s Report proceed along a line of reasoning that is inappropriate at this stage of the proceedings, in view of his claim to only testify as to impact and damages issues. Ordover contests the notion that Leitzinger’s inferences from market structure can be used as common evidence to support a claim that all or nearly all direct purchasers suffered antitrust impact. Some of Ordover’s justifications for that line of argument, discussed below, are properly addressed now. But at other times, Ordover bolsters his conclusions about the lack of common evidence demonstrating impact by pointing to the lack of evidence that collusion actually took place (see, e.g., Doc. 682-1 at 58 (“[T]he industry characteristics adduced by Dr. Leitzinger cannot be used to prove the existence of a cartel, as none of these bear on the question of whether the Defendants *250 reached an actual agreement to fix prices.”)) (emphasis added). Of course, if Direct Purchasers cannot prove an antitrust conspiracy existed, it follows that they cannot prove Direct Purchasers suffered common antitrust impact. But proof of a conspiracy is not required at this stage of the litigation. Therefore, this Court does not address merits-based arguments, like these, unrelated to the Rule 23 requirements.
Product Variability
Ordover begins his substantive critique of Leitzinger’s methods with a series of arguments focusing on the degree of product heterogeneity in the flexible foam industry. First, Ordover argues that Leitzinger errs in failing to recognize “undisputed heterogeneity of [flexible foam] products.” These products vary according to the particular product being manufactured, that product’s specific attributes (e.g., the product’s IFD) and end uses (Doc. 682-1 at 59; Doc. 682 at 43-46). As a result, transaction prices vary across the product range that, Defendants argue, Direct Purchasers inappropriately lump together.
Ordover claims that product heterogeneity has a few consequences for the Direct Purchasers’ case. First, this heterogeneity contradicts the notion that an agreement to fix and raise prices in the flexible foam industry could have existed at all, or, if it did exist, would have been successful. Defendants would have had to agree on prices for a range of products “subject to different demand conditions, different competitive condition, and different costs,” rendering the fact of agreement implausible. Further, even if an agreement had been reached with respect to products that varied to this extent, the agreement would have had “variegated effects on prices and price changes across different products and customers” (Doc. 682-1 at 60).
Ordover claims to demonstrate a wide range of price variance by producing dispersion charts reflecting actual prices charged by each Defendant over the Class Period. Ordover uses the same foam product and grade classifications that Leitzinger uses to estimate his models (i.e., conventional slab-stock, rebond underlay, etc.) (see id. at 61-66 & 62 fig. 6, 64 fig. 7, 66 fig. 8 (displaying price dispersion for each non-settling Defendant for conventional rolls, conventional buns, and rebond underlay)). For Ordover, these price dispersion charts show not just the infeasibility of a price-fixing conspiracy existing, but further question “how common impact is possible in light of the market facts” (id. at 67).
Leitzinger successfully refutes this aspect of Ordover’s analysis. Specifically, Leitzinger explains that Ordover’s price dispersion charts do not control for the various attributes that account for two foam products of the same category and type — for instance, conventional slabstock — selling at different prices for the same board feet of foam (or other relevant unit of measure). By way of example, Leitzinger observes that “one would expect that the observed price of a product with twice the density of another product” — meaning the product contains “twice as much foam per board feet” as the less dense product — “would be (all else equal) twice the price of the less dense product” (Doc. 744-49 at 14). Selecting specific plot points from Ordover’s graphs, Leitzinger shows that product characteristics, like density, account for that price variance (id. at 14 n.40 (noting that a conventional bun product with a very high board-foot price was also very dense and had high IFD)).
Leitzinger also performed a “hedonic analysis,” a standard statistical analysis for analyzing whether differences in product characteristics can explain price variance. That analysis constructs a regression model with price as a dependent variable, and the various product characteristics as independent variables (id. at 16-17 & 16 n.52). Using Carpenter data, Leitzinger’s model finds that product characteristics account for 90 percent of the variance in slabstock pricing, and 80 percent of the variance in underlay pricing (id. at 17). Ordover disputes this tight correlation (Doc. 892-1 at 56-59, 58 fig. 20, 59 fig. 21 (showing price dispersion for Carpenter underlay and bun products, controlling for differences in three attributes)), but when shown one of Ordover’s controlled price dispersions, Leitzinger explained one cannot tie that analysis, controlling for three (albeit im *251 portant) factors, to the output of his original analysis (Doc, 954-1 at 238-39). Leitzinger’s more comprehensive analysis is persuasive.
Moreover, Defendants knew their product pricing would vary in this way and could easily (and in fact did) compare the prices of foam with varying characteristics (Doc. 744-49 at 14-15). Additionally, Ordoveris claim that “[a]ny attempt to analyze impact on prices paid by the putative class members from the alleged cartel must account for this product heterogeneity” is true enough (Doc. 682-1 at 67), but Leitzinger’s proposed models attempt to do just that (see Doc. 584-14 at 61 (noting that Leitzinger’s models employ a transactional dataset that includes product IDs and foam grades, among other data-points)).
Ordover similarly argues that by including in one proposed class the purchasers of slab-stock and underlay, Direct Purchasers have made it impossible to demonstrate “the alleged price fixing conspiracy could ... have had a common impact on prices between these two product groups” (Doc. 682-1 at 67). This is so, Ordover argues, because the two product categories bear different costs and demonstrate variances in price that do not track one another. He demonstrates that point by producing two line graphs, one for slabstock and one for underlay, that plot each Defendant’s average price for that product (id. at 67-70 & 69 fig. 9). These charts show Defendants’ average prices varied with respect to other Defendants’ prices for the same foam product group over the course of the Class Period (though not by much). Ordover argues this variance refutes the notion that the alleged conspiracy would have resulted “in antitrust injury to all or virtually [all] members of the proposed class that could be established using evidence that is common across poured foam and rebond carpet cushion products” (id. at 70).
Defendants misunderstand the type of “impact” that must be capable of proof using evidence common to the class. Ordover’s discussion of variance in average price between the relevant sub-markets would only be relevant if that difference in price were relevant to the concept of “impact.” But it is not. Direct Purchaser’s Rule 23 burden with respect to impact does not require proof of “identical damages” or “common results.” Butler, 727 F.3d at 801 . See also In re Electronic Books Antitrust Litig., 11-md-02293-DLC, at *74, 2014 WL 1282293 (S.D.N.Y Mar. 28, 2014) (“[T]he relevant question is not whether the model can explain variances within the pricing data for a given [product], but rather whether the model can reliably explain the differences between collusive [product] prices and competitive prices so that it can disentangle the effects of collusion.”) (footnote omitted); In re Blood Reagents Antitrust Litig., 283 F.R.D. 222, 239 (E.D.Pa.2012) (rejecting the proposition that “it is not enough for plaintiffs to show that a customer paid more than the but-for price for at least one item in at least one transaction”).
Rather, the impact burden requires a method of proof, using evidence common to the class, that can establish all or nearly all class members incurred an antitrust overcharge of some amount. See Hanover Shoe, Inc., 392 U.S. at 491 , 88 S.Ct. 2224 . Leitzinger explains that is precisely what his models would prove — the fact of an overcharge with respect to all or virtually all class members, not identical overcharges. His regression models measure overcharges with respect to specific master billing IDs which, again, are the closest identifiers for discrete customers that can be culled from Defendants’ transactional data. And so what matters is “whether the pattern of price changes for given [master billing ID] changed in connection with the price increase announcements” — that is, whether the price increase letters led to a specific master billing ID paying more for a given product than market forces, represented in Leitzinger’s models by his supply and demand regressors, would have demanded — “not whether the pattern of price changes across [master billing IDs] or products was the same over a given interval of time.” (Doc. 744-49 at 17).
Market Composition
Ordover next turns his focus to the manner in which Leitzinger describes the relevant flexible foam markets. First, Ordover disputes that Defendants control the overwhelming majority of the slabstock and un *252 derlay markets, pointing to a January 2010 IBISWorld survey of the “Urethane Foam Product Manufacturing” market, which claims that the “variety of foam products produced in this industry as well as the diverse downstream markets makes it difficult for individual firms to grab a large portion of industry market share” (see Doc. 682-1 at 70 & n.120). But as Lamb explains, that market survey “accounts for a broader market” — specifically, one that includes rigid and molded foam products, neither of which are included in either proposed class definition— “with more firms than the [flexible foam] market, thus artificially reducing the level of market concentration applied to the [flexible foam] market” (Doc. 743 at 16). See also id. at 16 n.71 (quoting from the IBISWorld survey’s description of the contours of the market it measured). As previously explained, Leitzinger bases his market concentration calculations on Defendants’ own calculations for those figures. Those documents do not include market share calculations for the bi-oader swath of urethane foam products included in the IBISWorld Report. This Court credits Defendants’ own contemporaneous calculations of market concentration.
Second, Ordover claims there exist other firms “in this industry” — an ambiguous phrase, which may refer to the overbroad IBISWorld definition discussed in the same paragraph — that “serve as potential entrants into the manufacturing of polyurethane products relevant to this litigation” (Doc. 682-1 at 70-71) (emphasis added). This argument is underwhelming. In effect, Ordover merely names a handful of firms who produce urethane foam products of some sort, and concludes (without further grappling with how these various firms would confront and overcome the industry barriers to entry and the threat posed by Defendants’ excess capacity) that these firms could enter, or expand their presence in, the relevant foam markets in some unspecified period of time (Doc. 744-49 at 31). His deposition testimony demonstrates a lack of any particular understanding of these other non-defendant firms’ production capabilities (see Doc. 744-25 at 31-33), further undercutting his claim that they serve as ready entrants to the relevant flexible foam markets. Of course, Defendants bear no particular burden of proof on this (or any) point, but to effectively counter Plaintiffs’ substantial proof, Defendants must do more than merely point to a list of possible market entrants assembled from a survey of websites or 10-K filings.
Third, Ordover searches Defendants’ transactional data, using the terms “foam” and “fabricators” to identify a set of firms he believes to be foam fabricators who purchase buns and rolls from Defendants. He posits these non-defendant firms would serve as a further competitive constraint on Defendants with respect to those customers who might purchase fabricated foam products from Defendants (Doc. 682-1 at 75-77, 75 n.137, 76 fig. 11). These top-25 non-defendant foam fabricators “have the ability to absorb some portion of the anticompetitive effect from the alleged price fixing conspiracy” and provide possible cover for Defendant firms cheating on price with respect to fabricated foam, all necessitating “individualized inquiries to determine the extent to which these foam fabricators provide competitive alternatives” to Defendants (id. at 77). But Ordover fails to examine any particular non-defendant fabricator’s sales behavior to show they have in fact undercut Defendants by accepting lower margins on their sale of fabricated foam products.
Leitzinger concludes that scenario “makes no economic sense,” unless Defendants also have monopoly power with respect to fabricated foam — a claim no party to this litigation or party expert has explored (Doe. 744-49 at 32). Even assuming these non-defendant foam fabricators have some potential to serve as competitive checks on Defendant firms, that fact alone does not occlude the analysis with respect to whether Direct Purchasers have demonstrated common issues with respect to impact which predominate over individualized inquiry.
Fourth, Ordover identifies Defendants’ largest customers, and argues that two features of Defendants’ relationships with these large customers undercut Direct Purchasers’ ability to demonstrate through common proof that all or nearly all direct purchasers suffered antitrust injury. Ordover identifies the *253 fifty largest customers during the latter half of the Class Period; these large customers account for $6.044 billion in Defendant sales, or 46.7 percent of total Defendant sales from 2005 through 2010; fourteen of those large firms account for just over 30 percent of total Defendant sales during the same period (Doc. 682-1 at 78 fig. 12). In addition, Ordover displays, for each Defendant, the percentage of Defendant’s 2005-10 sales that were claimed by that Defendant’s top 50 customers. Only Leggett & Platt sells more than 50 percent of its slabstock and underlay products to non-top 50 customers (see id. at 79 fig. 13).
Ordover concludes that such large buyers likely would have wielded negotiating power of varying degrees. Also, these large purchasers obtained product from Defendants “under long term contracts or other agreements that place limits on price changes” (id. at 79). As a result, “the effect on prices from the alleged price fixing conspiracy would have been different for these [large] customers than for other customers” (id. at 80). Individualized inquiry would be required to gauge impact, if any, on these large customers. For his part, Leitzinger conducts a sensitivity analysis, limiting a data sample to only large buyers, and finds impact at conventional significance levels for customers who account for over 95 percent of purchase activity (Doc. 744-49 at 55 & n.244).
This Court reserves for discussion below Ordover’s reference to the effect of purchasing contracts on Direct Purchaser’s impact burden, for that argument is more fully-developed by the experts in the course of discussing Leitzinger’s observations regarding the existence and functioning of pricing structures in the flexible foam industry. However, this Court concludes the possibility that large purchasers generally exercise bargaining power in the flexible foam markets does not preclude Direct Purchasers from establishing impact using a common proof. Assuming Leitzinger’s regression models properly function as Leitzinger describes them — an assumption critically examined below — the models necessarily would take into account these large buyers’ negotiating power, if any. After all, the models contain price as the dependent variable. Ordover’s line of argument is that negotiating power would permit these large buyers to avoid any price increase attributable to the price fixing conspiracy. If that is so, Leitzinger’s regression models should estimate a negative coefficient with respect to a given transaction and master billing ID, indicating the lack of antitrust impact (see Doc. 744-26 at 2) (“[Ordover;] ____ But ultimately, to the extent that such contracts exist and that they affect prices, it’s going to be picked up in Leitzinger’s regression”). If the bargaining power only allows some, but not all, of the supra-competitive premium to be avoided, the regression models should estimate a positive, but relatively low, coefficient with respect to a given transaction and master billing ID, indicating that the price increase letter explains a smaller portion of actual price increases.
Fifth, Ordover notes that foam has a high volume-to-weight ratio, making it expensive to transport long distances. Therefore, Defendants sell foam products into local geographic markets where prices are not always the same (see Doc. 682 at 47-48). For instance, Carpenter plants located in California and Texas charged different prices for re-bond underlay of the same thickness and density. In Ordover’s view, these local geographic markets mean antitrust injury cannot be examined using proof common to the class, but instead can be gauged only through individualized analysis that accounts for these differences in geography (Doc. 682-1 at 80-81). It is difficult to understand why this is so, in light of the manner in which Leitzinger constructed his models. Again, those models’ dependent variable are prices charged with respect to a specific master billing ID. A master billing ID represents Leitzinger’s efforts at identifying a single physical purchasing location (Doc. 584-14 at 62 n.337). Just as Defendants sell only to purchasers located within some given distance from a plant, a single physical purchasing location would likely only purchase product sold by plants in that local market. If a master billing ID purchased foam from a plant in another geographic region, that difference in price as compared to products sold by a nearer plant would be reflected in De *254 fendants’ transactional data and Leitzinger’s models (see Doc. 744-49 at 26) (“[I]f [master billing] IDs and markets are localized — precisely what Dr. Ordover points to as problematic here — then the regression results for each [master billing] ID will reflect those localized competitive circumstances.”). Moreover, as noted above, Defendants themselves did not distinguish between local markets when announcing price increases.
Sixth, Ordover identifies instances of apparent competition between Defendants, asserting that this competition is “contrary to [Direct Purchasers’] allegations of price fixing” and is “consistent with a diversity of competitive conditions faced by individual” direct purchasers (Doc. 682-1 at 82). Ordover points to Defendant documents that show Defendants discussing accounts lost to, or gained from, other Defendants, as well as examples from Defendants’ transactional data that show certain of Defendants’ customers shifting their buying habits over the course of the Class Period (id. at 82-84).
But Direct Purchasers’ theory is not inconsistent with these instances of competition (Doc. 744-49 at 10-11). Ordover intimates that Direct Purchasers charge Defendants with conspiring to eliminate competition within the cartel. That is not so. Direct Purchasers allege that price increase letters were a part of the conspiracy (Doc. 46 at ¶ 94). But price increase letters were not issued quarterly — instead, some Defendants issued price increase letters, on average, once every three quarters (Doc. 584-14 at 68). Moreover, these very competitive conditions served as the impetus for the alleged price fixing arrangement in this case, according to a Defendant’s senior executive: “I cannot think of a single account at Domfoam and Valle Foam where we felt confident that there was no way we could lose [the account] to a competitor. In fact, it was for this reason that we were agreeable to coordinating price increases with our competitors. Coordination benefitted everyone because it minimized the degree to which we undercut each other on common accounts and gave confidence that all foamers would raise prices at about the same time” (Doc. 584-11 at 14).
Finally, Ordover argues that conditions in the flexible foam industry are such that Defendants would not have been able to monitor and compare actual prices charged for their products, citing the testimony of a Leggett & Platt underlay employee who asserted that “it would have been totally impossible” to collect information on prices charged, given the wide dispersion in underlay prices (Doe. 682-1 at 86). From that assertion about price visibility, Ordover argues that “the inability of the Defendants to monitor each other’s prices indicates that the alleged price fixing conspiracy would likely not have resulted in antitrust harm to all or virtually all members of the proposed class” (id.). “Monitoring prices is important to the success of the alleged conspiracy,” he earlier explains, “[but] it is difficult to accomplish” (id.).
This argument must be rejected for three reasons. First, to the extent Ordover again strays into opining on merits questions not bound up with the requirements of Rule 23, his argument is improper. Of course, if the antitrust conspiracy alleged in this case failed owing to the inability to monitor pricing, then necessarily there would be fewer impacted Direct Purchasers as compared to a better coordinated price fixing conspiracy. But Direct Purchasers need only demonstrate at this stage of the proceedings that they offer a method that is capable of establishing antitrust impact using common evidence, assuming the conspiracy existed.
Second, and again setting aside critiques of Leitzinger’s model design for present purposes, the number of positive coefficients his models are capable of producing would be a reflection on the alleged conspiracy’s success which, as Ordover notes, is partly dependent on price transparency. If, as Ordover contends, Defendants were substantially unable to monitor the prices they actually charged, then Leitzinger’s models would be unable to predict impact to any significant degree. That is, Defendants could have agreed to issue coordinated price increase letters containing prices set at a supracompetitive level. When it came to actually concluding deals with respect to specific customers, individual Defendants would then cheat on the price *255 fixing agreement in hopes of undercutting coconspirators. And all throughout, Ordover’s description of price opaqueness would conceal this cheating, presenting Defendants with strong incentives to cheat on the agreement, lest they become the only party not to cheat. As a result, no antitrust impact would be demonstrable under Leitzinger’s models. But in fact, Leitzinger finds impact with respect to customer who account for the overwhelming majority of Class Period revenues, and of master billing IDs in their own right. That result contradicts the notion that widespread cheating, borne of price opaqueness, led to Defendants paying lip service to agreed prices.
Finally, Direct Purchasers offer what is comparatively a much weightier body of prelitigation evidence suggesting that in fact Defendants could, and did, compare actual prices charged, and with great granularity to boot (Doc. 744-49 at 20-22) (noting, for instance, that employees of Defendant Vita-foam were able to compare its prices to Carpenter pricing on the same product “to the cent”)).
Price Increase Letters and Actual Prices
Ordover next attempts to demonstrate that Defendants were unable to implement actual price increases in the full amount mentioned in price letters (see Doc. 682 at 52-53). Ordover begins by examining in two ways the relationship between announced price increases and actual prices charged. For both examinations, Ordover uses Leitzinger’s “impact” regression dataset (Doc. 682-1 at 98), and assumes “that the impact of [a] price [increase letter] is on that quarter’s price change [i.e., the quarter in which the price increase letter is issued] from the prior quarter” (id. at 99).
First, Ordover compares the announced price increase to the average increase in prices charged in that quarter showing, at least with respect to these identified quarters, Defendants failed to implement the full amount of the announced price increase (id.). Ordover also shows the variance in actual price changes, reporting, for a quarter, the percentage of customer-product observations that show prices increases, or price declines, or no change in price from the prior quarter. Ordover finds, for example, while “Leitzinger’s data indicates an 11 percent announced price increase for Future Foam, the average price increase in 2003 Q2 was 3 percent” and that in the same quarter for the same Defendant “18 percent of prices changes are negative, while 67 percent of price changes are positive, and there are zero price changes in 15 percent of the observations” ( id. at 100). See also id. at 98-106,101 fig. 16,103 fig. 17, 105 fig. 18, 106 fig. 19 (describing Ordover’s methodology for his actual-price-effects analysis and presenting results for slabstock price increase letters issued in the Second Quarter of 2003 and the Second Quarter of 2008, as well as results for rebond underlay price increase letters issued in the Third Quarter of 2001 and the First Quarter of 2009); Doc. 892-1 at 16-19, 17 fig. 2, 19 fig. 3.
Second, Ordover analyzes “the patterns of price changes for all Defendants in Dr. Leitzinger’s regression dataset for all periods in which Dr. Leitzinger’s data indicate that Defendants issued price announcements” for both slabstock and underlay products (Doc. 682-1 at 107 & 108 fig. 20). That analysis shows that, on average, a substantial portion of customers did not experience an increase in prices during quarters in which price increase letters were issued as compared to the prior quarter. Ordover claims that for both poured foam and underlay products, 60 percent of customers experienced price increases. However, 40 percent of customers who purchased slabstock or underlay did not experience a price increase (see id. at 107 (noting that 15 percent of slabstock customers saw a decline in price, while 25 percent saw no price change; 21 percent of underlay customers saw a price decline, while 19 percent saw no change in price)).
The results of this actual-price-effects analysis is significant to Ordover because if prices did not increase for a particular customer during a quarter in which Defendants issued a price increase letter, “there was no antitrust impact” for those customers (id. at 98). See also id. at 109 (arguing that with respect to the 40 percent of slabstock and underlay customers who, on average, did not experience price increases “there was no im *256 pact from these price announcements”); Doe. 892-1 at 10 (urging an impact analysis with respect to a customer’s “entire basket” of purchases). Ordover concludes that because such a large portion of the Direct Purchaser class suffered no “impact,” as he defines that term, Direct Purchasers necessarily cannot demonstrate through common evidence that all or nearly all class members suffered antitrust impact.
Ordover, like Defendants, again misunderstands what it means for a customer to suffer antitrust impact. Ordover’s actual-price-effects analysis does not consider the price increase letter’s effect in the so-called “but-for” world, as Leitzinger’s impact models do. Under Ordover’s view (and despite protests to the contrary (see Doc. 892-1 at 8-10)), the lack of an actual price increase indicates an absence of antitrust'impact. On that line of reasoning, an agreement among competitors that serves to slow, but not reverse, a decline in price does not allow antitrust recovery. This cannot be the law.
If market forces would lead to a decline in competitive prices, a group of defendants cannot collude to slow that decline, just as participants in more vibrant industries may not collude to generate more pronounced increases in prices than market forces would otherwise produce. See, e.g., In re Wellbutrin XL Antitrust Litig., 282 F.R.D. 126, 140 (E.D.Pa.2011). Defendants’ alleged unlawful coordination of price increase letters set the benchmark for negotiations with customers over actual prices. Leitzinger claims those “benchmark” levels were higher than they would have been absent the alleged agreement. See, e.g., In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 2006 WL 1530166 , at *9, 2006 U.S. Dist. LEXIS 39841 , at *47 (N.D.Cal.); In re Vitamins Antitrust Litig., 209 F.R.D. 251, 266 (D.D.C.2002). It stands to reason, then, that if because of an antitrust conspiracy a seller and buyer’s jumping-off point for negotiations is higher than market forces would otherwise determine, that buyer suffers injury.
Setting aside Defendants’ questionable definition of “impact,” this Court cannot even draw any firm conclusions from Ordover’s analysis regarding the number of class members who did not experience an increase in price in the same quarter in which a price increase was issued. This is so because, as Leitzinger explains, Ordover identifies impact with respect to “customer-product observations” for purposes of his actual-price-effects analysis. But Defendants’ transactional dataset includes purchases from “customers” under product IDs; each entry represents one item purchased by a customer under what, in effect, is a given account number. Because some customers can purchase foam product under multiple product IDs, Leitzinger constructs the master billing ID datapoint. By disregarding that unit of aggregation, Ordover concludes that a customer is not impacted if it did not experience a price increase with respect to a specific purchase, even if, with respect to other purchases, the same customer did experience a price increase driven by the alleged collusive agreement (see Doc. 744-49 at 23 (“By conflating impact to a customer with the extent to which there were overcharges on every product the customer purchased, Dr. Ordover misses the full extent of common impact across members of the proposed class. To illustrate, suppose ten members of the proposed class each purchased ten products” but each experienced price increases with respect to only six of those purchases. “From that fact pattern Dr. Ordover’s method for analyzing impact would lead to the conclusion that, 40 percent of the time, there is no impact. In fact, however, 100 percent of those customers were impacted.”) (emphasis added)). See also id. at 24 (noting other difficulties in Ordover’s analysis on this point); ABA Section on Antitrust Law, Econometrics 210-11 (2005) (“Generally, when the prices for some customers are going up while the prices of other customers are not, there is reason to doubt that the different customers (class members) are experiencing a common impact. However, if the observed differences are due to measurable and systematic factors that can be controlled for in a regression, a common impact may be shown and class treatment may still be appropriate.”).
Ordover next discusses the fact that Defendants entered into long-term purchase *257 contracts with customers (see Doc. 682 at 41-43). Some of those long-term contracts included clauses that limited the extent to which Defendants could seek price increases (“price escalation” clauses). These price escalation clauses typically limited price increases according to a formula tied to the price of foam inputs (see Doe. 682-1 at 110 (describing a 2006 Foamex-Tempur-Pedic contract that, in part, “specified prices would be governed by a formula that weighted changes in TDI and polyol prices by specified cost shares and then reduced by 15 percent to calculate the resulting percentage change in foam prices.”)). Other such contracts prohibited price increases of any kind during certain periods (id. at 111), or determined prices at the outset (id. at 112 (discussing a Carpenter-Sealy contract)). These contracts, in Ordover’s view, mean “the price announcement letters would not have increased prices already specified in these contracts and therefore the alleged conspiracy would not result in antitrust injury to these customers” (id. at 114). Determining which customers had such contracts, and whether the contracts operated as Ordover describes, would require “individualized analysis” to identify those customers who, because of such contracts, “could not have been impacted by the allegedly coordinated price announcements” (id. at 110) (emphasis added).
From the observation that a customer may have had a purchase contract with one Defendant for a limited period of time (which would have protected that customer, in part or in full, from the effects of price increase letters issued during the life of the contract) Ordover concludes that holders of such long term contracts could not have been impacted by the conspiracy at all. Missing in this line of reasoning are two critical considerations. First, to suffer “impact,” a customer need only be able to point to having paid a supraeompetitive premium as a result of one price increase letter. Second, the customer need not have suffered this adverse impact with respect to a price increase letter issued by each Defendant.
Even if the purchase contracts operated as Ordover claims, the “protected” customer could still have been affected by a price increase letter issued by the same Defendant when no such price protections existed, or by a different Defendant at a point in time when that price increase letter would have generated antitrust impact. Direct Purchasers are not litigating 21 cases alleging that 21 conspiracies each issued a single price increase letter that carried a supracompetitive premium; they allege that one conspiracy issued 21 sets of unlawful price increase letters. They need only offer a workable method of proof with respect to that one case. In re TFT-LCD (Flat Panel) Antitrust Litig., 267 F.R.D. 583, 607 (N.D.Cal.2010) amended in part, 2011 WL 3268649 (N.D.Cal.2011) (“The Court agrees with plaintiffs that defendants may not recast plaintiffs’ allegations [regarding the nature of the conspiracy], and plaintiffs have consistently alleged a single, overriding conspiracy spanning the entire class period.”).
Direct Purchasers’ proof on this point is, again, Leitzinger’s regression models. Leitzinger claims “if a customer had a contract in place which effectively insulated it from the effects of one or more price increase [letters] from a specific defendant, then presumably the data feeding into my regression would reflect that fact” (Doc. 744-49 at 66) (emphasis added). In other words, Leitzinger’s models would predict no impact with respect to each purchase entry made under a “protective” agreement if Ordover’s description of those contracts is accurate. Ordover describes these purchase agreements as closely tied to the cost of inputs (Doe. 682-1 at 110 (describing the 2006 Foamex Intemational-Tempur-Pedic purchase contract as including a provision that allowed “price change[s] ... only if [the weighted-by-inputs price formula] exceeded +/-3 percent, and prices were permitted to change quarterly.”)). Those close ties would mean that Leitzinger’s regressors fully explain the actual price charged, as Ordover himself admits. But the models may well disclose impact with respect to the same master billing ID for purchases from another Defendant in the same quarter or from purchases in other quarters in which price protections do not exist.
Further, the record reveals long-term contract holders very likely suffered some im *258 pact. None of the long-term agreements extended throughout the Class Period (see Docs. 682-40 through 682-44). For example, Tempur-Pedic purchased foam for roughly seven years outside of a longterm contract, while Comfor-Products did the same for roughly six years (Doc. 682-40-41). Contract negotiations thus took place in the context of artificially inflated baseline pricing, effects which likely became “baked into” the contracts. See In re Urethane Antitrust Litig., 251 F.R.D. 629, 644 (D.Kan.2008). See also Doc. 682-43 at 8 (Sealy contract pegging “baseline price” to price prior to contract effective date); Doc. 682-41 at 3 (noting Comfor-Products pricing “shall be adjusted at the Review,” which review occurs only biennially absent substantial increases or decreases in chemical pricing); Docs. 744-32 through 744-47 (collecting contracts executed within the Class Period). To the extent a contract pegs increases to input cost increases, the record reveals that a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8775197. Public record. Not legal advice.