Petition for Writ of Certiorari — Columbia Iron & Metal Co. Co. v. Lincoln Electric Co. (No. 08-934)
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Supreme Court, U.S.
Pree BO
\ (\) O8 934 Jan 15 2009
NO. —__OPFICE OF THE CLERK
Jn Whe
Supreme Court of the United States
COLUMBIA IRON & METAL CO.,
Petitioner,
Vv.
LINCOLN ELECTRIC COMPANY, Aanp
PROFILE GRINDING, INC.,
Respondents.
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Sixth Circuit
PETITION FOR WRIT OF CERTIORARI
LESLIE W. JACOBS
Counsel of Record
THOMPSON HINE LLP
3900 KEY CENTER
127 PUBLIC SQUARE
CLEVELAND, OH 44114-1291
(216) 566-5675
Attorneys for Petitioner
January 15, 2009
Becker Gallagher + Cincinnati, OH - Washington, D.C. - 800.890.5001
i
QUESTIONS PRESENTED
1. Where a jury is instructed on two different bases
for tolling the statute of limitations, one of which is
clearly erroneous and the other of which is deemed
acceptable, may the verdict stand because the jury
“could have” followed the acceptable instruction even
though the court is unable to find that the jury did not
instead follow only the erroneous instruction?
2. May a trial court omit a Rule 23(c)(2)(B) notice to
absent class members in a Rule 23(b)(3) class action
and thereafter substitute a partial settlement notice
under Rule 23(e)(1)(B) without including the
admonition specified in Rule 23(c)(2)(B) that a
subsequent judgment in the continuing litigation
against the non-settling defendants would be binding
on the class members?
il
RULE 14.1(b) STATEMENT
A list of aj] parties to the proceeding in the court
whose judgment is the subject of this petition is as
follows:
Defendant-Appeliant and Petitioner: Columbia Iron &
Metal Co.
Plaintiffs-Appellees and Respondents: Lincoln Electric
Company and Profile Grinding, Inc. as representatives
of a class of generators of ferrous scrap in Cuyahoga,
Lake, Lorain, Medina, Summit, Stark and Ashtabula
counties in the State of Ohio from December 1992 to
March 2000.
lil
CORPORATE DISCLOSURE STATEMENT
The parent corporation of Petitioner Columbia Iron
& Metal Co. is Columbia National Group, Inc. Neither
corporation is publicly held, and no publicly held
company owns 10% or more of either corporation’s
stock.
iV
TABLE OF CONTENTS
Questions Presented ......... ccc ccc ccc cceces i
Rule 14.1(b) Statement ..... wc wees il
Corporate Disclosure Statement .............. ill
eee y's ko owed ean eee eee iv
Pewee OF AWtOritiee «ww i eee vil
Petition for a Writ of Certiorari ............... I
Go Bo a 1
UE os aie ea ee ek eo 1
Statutory Provisions and Rule Involved ........ 1
CATING GE Ett LOD ko ok he eee awe 2
A. Class Certification and Notice ........... 2
B. Jury Instructions on Limitations Periods .. 3
C. Damages Evidence and Verdict .......... 6
Ee I ee ey Se pees 7
ep ae ost a he argh st aa ane es 8
Reasons for Granting the Petition ............. 8
v
I. THE SIXTH CIRCUIT'S NEW STANDARD
FOR AFFIRMING AN AMBIGUOUS JURY
VERDICT DEPARTS FROM ITS OWN
PRIOR STANDARD, CONFLICTS WITH
THE STANDARD ADOPTED IN OTHER
CIRCUITS AND CONTRADICTS THE
DECISIONS OF THIS COURT ......... 13
A. The Sixth Circuit’s New Standard, that
a Verdict Can Stand Where the Jury
Was Instructed on Alternate Theories
and May Have Followed Either a
Correct or an Erroneous Instruction,
Will Permit Juries to Rely upon Clear
ee eee ee eee ee 14
B. The Sixth Circuit’s Standard Will Allow
Reviewing Courts to Affirm Verdicts
without Examining the Errors upon
which the Verdicts May Be Based .... 17
Il. THE SIXTH CIRCUIT HAS ELIMINATED
THE REQUIREMENT OF CIVIL RULE
23(c)(2)(B) FOR NOTICE TOA CERTIFIED
RULE 23(5)(3) CLASS OF THE BINDING
EFFECT OF A CLASS JUDGMENT. .... 18
Hi.THE SIXTH CIRCUIT PERMITS A FINAL
JUDGMENT THAT DOES NOT CONFORM
TO CIVIL RULE 23(cXS) .............. 20)
Conclusion
vi
Appendix
Appendix A: Sixth Circuit Opinion and
Judgement, May 15, 2008 ........eeseeees la
Appendix B: District Court Judgment, February
I rae er reer ree Sh La ey eB a 37a
Appendix C: Sixth Circuit Order Denying
Rehearing, October 20, 2008 ............. 39a
Appendix D: Statutory Provisions Involved
Section 1 of the Sherman Act, 15 U.S.C. §1 41a
Section 4(a) of the Clayton Act, 15 U.S.C.
Be tee ae i TN a 4la
Section 4B of the Clayton Act, 15 U.S.C.
RE SE ial gg ED mae oa ge Pe 43a
Section 5 of the Clayton Act, 15 U.S.C.
TE ees Oe re aS eG wea aca 43a
Appendix E: Rules Provision Involved
Federal Rule of Civil Procedure 23 ..... 44a
Appendix F: Jury Instruction on Statutory
, a ae = A eo a a 49a
Vil
TABLE OF AUTHORITIES
FEDERAL CASES
Allen v. Wal-Mart Stores, Inc.,
241 F.3d 1293 (10th Cir. 2001) ............ 10
Auins v. White,
er ie ee te” ee, TI ove oc ove va eck 10
Cramer v. United States,
es os i, Ss se oak ered ae hs 10
Dillard & Sons Const. Inc. v. Burnup & Sims,
61 F.3e SiC (10th Cir. 1905) . ow oo ce ie 10
Eisen v. Carlisle & Jacquelin,
ges Me Go, Sear 19, 20
Harwood v. Partredereit AF 15.5.81,
944 F.2d 1187 (4th Cir. 1991), cert. Cenied, 503
a ee Ceo. os dake yes ee sh oaks 10
Herrington v. Edwards,
1999 U.S. App. LEXIS 1220 (6th Cir.), cert.
denied, 527 U.S. 1049 (1999) ........... 10, 11
Kosters v. The Seven-Up Co.,
595 F.2d 347 (6th Cir. 1979) .............. 11
McMurray v. Deere and Co.,
858 F.2d 1436 (10™ Cir. 1988) ............. 10
Morrissey v. Natl Mar. Union of Am.,
SO6 F200 Cale Wir. TOTE) oc cc ee ces 10
Vill
Robinson v. Union Carbide Corp.,
644 F.2d 1258 (5th Cir. 1977) ............. 19
Stromberg v. California,
Se SE NED ook ov eee veda aca dere” 10
Sunkist Growers, Inc. v. Winkler & Smith Citrus
Prods. Co.,
Se a BCE cc ec ce ee ee raveees 10
Terminiéillo v. City of Chicago,
SE) Oe Sy a hs ew wees 10
United New York and New Jersey Sandy Hook
Pilots Ass’n v. Halecki,
RE . ) re 10
United States v. Palazzolo,
71 F.3@ 1233 (Gth Cir. 1996) .............. 15
United States v. Rayborn,
491 F.3d 513 (6th Cir. 2007), cert. denied, 128
Se EE ED. Shen oy ee cee ee en se sehen 15
Webber v. Sobba,
322 F.3d 1032 (Sth Cir. 20Q@8) ............. 10
West Knoxville Assocs. Ltd. P’ship v. Ticor Title Ins.
Co.,
1997 U.S. App. LEXIS 23942 (6th Cir. 1997) . 11
Williams v. North Carolina,
elg es My ee” | 10
ix
Woods v. Sammisa Co.,
873 F.2d 842 (5th Cir. 1989), cert. denied, 493
US. 1060 CIGRGF wc sc cee. Es oaks. 10
Yates v. United States,
O06 U.G. Be eek seca cee 10, 14
FEDERAL STATUTES
LG UG Be re re sc cece cece 1
1D AA ee PU TG ys cesses recone 2
16 U.S. Soe So Sa ce see eee. 2,4
OOM ER ROM 2,4
28 UG. Game ae ect re cease i
SO UAL, Gee gcc te eee ee ]
SUPREME COURT RULE
Bewabe 15.8 sb ee es a vas kc ac cccee 1
FEDERAL RULES OF CIVIL PROCEDURE
pAT >. GR i 2,9
FUUI@ DOC ee ey kc cee eae. passim
Reunke BOGE) i cp eS kee 18
Beare SOC ES eccc ce cee 20
Rule 23(cM3)....... cece ee cece. 7, 12, 20, 21, 22
ey OS SS Len 9 ree ee 3, 19, 21
TEXTS
ABA Section of Litigation, Business and
Commercial Litigation in Federal Courts (2d ed.
ABA AT-Daily Digest (Jan. 14, 2009)........... 8
Federal Judicial Ctr., The Manual for Complex
Litigation (4th ed. 2004) ................. 18
1
PETITION FOR A WRIT OF CERTIORARI
Columbia Iron & Metal Co. (“CIMCO”) respectfully
petitions for a writ of certiorari to review the opinion
and judgment of the U.S. Court of Appeals for the
Sixth Circuit.
OPINIONS BELOW
The opinion of the U.S. Court of Appeals for the
Sixth Circuit, dated May 15, 2008, is officially reported
as In re: Scrap Metal Antitrust Litigation at 527 F.3d
517 and is reproduced at App. A, la.
The order of the U.S. Court of Appeals denying
rehearing, dated November 19, 2008, is reproduced at
App. C, 39a.
JURISDICTION
The judgment of the U.S. Court of Appeals for the
Sixth Circuit sought to be reviewed was entered on
May 15, 2008. This petition is timely under 28 U.S.C.
§2101(c) and Supreme Court Rule 13.3 because it is
being filed within 90 days of the entry of the order on
November 19, 2008 denying rehearing of the opinion
and judgment sought to be reviewed. This Court has
jurisdiction to review the judgment of the U.S. Court
of Appeals for the Sixth Circuit pursuant to 28 U.S.C.
§1254(1).
STATUTORY PROVISIONS AND
RULE EVVOLVED
The relevanu statutory provisions involved are
Section 1 of the Sherman Act, 15 U.S.C. §1; Section
2
4(a) of the Clayton Act, 15 U.S.C. §15(a); Section 4B of
the Clayton Act, 15 U.S.C. §15b; and Section 5 of the
Clayton Act, 15 U.S.C. §16(i), which are reproduced at
App. D, 4la- 43a. The relevant rule involved is
Federal Rule of Civil Procedure 23, the pertinent
portions of which are reproduced at App. E, 44a — 48a.
STATEMENT OF THE CASE
This case arose from a federal grand jury
investigation of the scrap metal industry in Northeast
Ohio. Several individuals and companies were
charged at different times over a period of years with
entering into agreements to rig bids for purchases of
scrap or to allocate certain scrap generators in
violation of Section 1 of the Sherman Act (15 U.S.C.
$1). Petitioner was never charged.
After the first criminal charge was _ publicly
announced in early 2000, several scrap gencrators filed
class actions seeking treble damages under Section 4
of the Clayton Act (15 U.S.C. §15). Those cases were
consolidated into this class action. On August 15,
2002, petitioner Columbia Iron & Metal Co. (“CIMCO”)
was auded as a new defendant.
A. Class Certification and Notice.
Plaintiffs moved to certify a Civil Rule 23(b)(3)
litigation class, and that motion was granted in March
2004. The trial court did not direct that any notice be
provided to the class under Civil Rule 23(c), and none
was sent at that time.
In May 2004, the trial court preliminarily approved
settlements with some other defendants, approved full
3
and abbreviated forms of settlement notices proposed
by class counsel, and directed dissemination of those
settlement notices to the absent class members. The
notices complied with Civil Rule 22(e) for settlement
purposes. Class members were advised of the
settlement amounts and claim procedures. They were
also informed that “[w]hether or not the settlements ...
are approved, the litigation will continue against the
non-settling defendants;” that a class member must
opt out in order to “pursue any claims against any
defendants;” and that, if a class member should opt
out, “You will be excluded from the Class Plaintiffs’
prosecution of the claims against all defendants .
land] you may present any claim you may have against
. any other defendant by filing your own lawsuit.”
However, for class members who did not opt out, there
was nothing in either form of notice that “clearly and
concisely state[d] in plain, easily understood language
... the binding effect of a class judgment on members
under Rule 23(c)(3)” as required by Civil Rule
23(c)(2)(B).
Prior to trial, CIMCO and the other non-settling
defendants objected to proceeding with class claims in
the absence of the required (c)(2)(B) notice. The trial
court denied that motion. At trial, a directed verdict
was entered against all class members who sold non-
ferrous scrap, representing almost one-half of the sales
by the class.
B. Jury Instructions on Limitations Periods.
The jury was instructed on the remaining claims
for sales of ferrous scrap. A key issue at trial was the
time period during which scrap sales by class members
were eligible for damages. Since the complaint was
4
filed against CIMCO on August 15, 2002, the standard
limitations period of four years (15 U.S.C. §15b)
exposed CIMCO to damages incurred by class
members in transactions from August 15, 1998 to the
end of the alleged conspiracy when the first
government case was filed in March 2000, a period of
19 months. CIMCO requested an instruction to that
effect, but the district court did not permit the jury to
apply the basic statute of limitations and, instead,
extended the minimum period for damages by an
additional 29 months, i.e. beginning in March 1996
rather than August 1998. The court imposed that
expansion of CIMCO’s exposure with an instruction to
the jury, which it described on the record “as a matter
of law” (App. F at 49a, emphasis in original):
In this case, the law imposes a four year limit
on the plaintiffs’ claim, which limit dates
backward from March of 2000. Thus, unless the
statute of limitations is tolled or extended for
the reasons described in the Court’s next
instruction fon fraudulent concealment], the
plainw.if may only prevail ... in the alleged
conspiracy on or after March of 1996, and may
only recover damages arising from conduct
occurring after that date.
The court based that instruction on the antitrust
tolling statute, Section 5 of the Clayton Act (15 U.S.C.
§16(i), set forth in App. D at 43a). The court relied on
that statute to extend the damages period back four
years from March 2000, and not from August 15, 2002
when CIMCO was sued, because the court found that
(1) when a government criminal antitrust case hac
been filed against an alleged co-conspirator in March
2000, (2) that proceeding had suspended the running
5
of the limitations clock, so that (3) the applicable
damages period commenced in March 1996, four years
prior to the commencement of the earlier government
case.
That statutory tolling instruction was clearly
erroneous because Section 5, by its express terms, does
not apply to a subsequent private case like this one
unless the defendant is sued during, or within one year
after the conclusion of, the earlier government case.
Otherwise, “any action to enforce such [private] cause
of action shall be forever barred.” The trial court
simply overlooked the information on its docket that
the March 2000 government case had ended with a
plea and sentencing on June 21, 2000, almost 26
months before CIMCO was sued. Moreover, there was
no other government proceeding filed during the one
year period after the June 2000 conclusion of the
March 2000 government case. Therefore, there was no
factual basis for the statutory tolling instruction.
The jury was also instructed (a) that it should
decide whether fraudulent concealment had been
proved so as to extend the damages period back to “the
date of the earliest injury” (alleged to be December
1992) and (b) that, if the fraudulent concealment proof
failed to convince them, “you are limited to the post-
March 1996 time period outlined in the previous
[statutory tolling] instruction.” Thus, the jury had two
choices for the damages period: (1) a minimum of 48
months based solely on statutory tolling or (2) a longer
period only if the jury found earlier fraudulent
concealment. The jury was given no choice to limit
damages to the untolled period of 19 months.
6
C. Damages Evidence and Verdict.
At trial, plaintiffs’ evidence on damages consisted
solely of the testimony of their expert. He opined that
the cartel suppressed every price paid to ferrous scrap
sellers from December 1992 (the beginning of the
damages period based on the fraudulent concealment
instruction) to the end of the conspiracy in March 2000
by 16.4%. He also testified that, by applying his rate
to all ferrous sales for the entire period, class damages
amounted to $20.9 million.
The trial court denied defendants’ request for
special interrogatories and a detailed verdict form.
Using the trial court’s more limited form, the jury
returned a verdict against CIMCO in the aggregate
amount of $11.5 million. The verdict form did not
request or reveal the time period, the transactions or
the class members the jury intended to cover by this
aggregate award. Nor did the verdict form indicate
the rate of damages used by the jury. The jury could
have reached the same aggregate damages award by
using either (a) the full 16.4% rate proposed by
plaintiffs’ expert for the period of 48 months covered
by the crroneous statutory tolling instruction or (b) a
lower, unknown rate for some longer period of time
-overed by the fraudulent concealment instruction.
The jury’s verdict is fully consistent with a rejection
of the fraudulent concealment evidence and reliance
exclusively on the trial court’s erroneous statutory
tolling instruction. If that is what the jury did,
CIMCO’s liability exposure had been wrongfully
increased by 29 months or more than 150 percent.
With nothing to distinguish between the statutory
tolling and fraudulent concealment concepts on the
7
verdict form, it was impossible to determine which of
the two instructions the jury had followed.
The trial court trebled the verdict amount, credited
the prior settlements and entered judgment against
CIMCO for the net balance. The possible impact of the
legal error on statutory tolling was profound. Even if
the jury had accepted the methodology of plaintiffs’
expert with no discount, applying those calculations to
the proper untolled limitations period would have
generated a verdict of $3.031 million. When trebled,
that amount would have been less than the prior
settlement payments obtained by plaintiffs and,
consequently, would have resulted in a judgment for
CIMCO.
D. Judgment Entry.
Civil Rule 23(c)(3) required the judgment entry to
“specify or describe those to whom the Rule 23(c)(2)
notice was directed ... and whom the court finds to be
class members.” That was impossible for two reasons.
First, there had been no Rule 23(c)(2) notice. Second,
without a definitive determination of the time period
reflected in the verdict, and with no way to identify
which of tens of thousands of generator transactions
over more than seven years the jury had included in its
own calculations, there was also no way to know who
ultimately was in the class for whom an aggregate
verdict had been returned. The judgment entry (set
forth at App. B, 37a), therefore, made no pretense of
compliance with Rule 23(c)(3).
E. Appeal.
CIMCO appealed to the U.S. Court of Appeals for
the Sixth Circuit. That court held that it was
unnecessary to consider the error in the first
instruction on statutory tolling of the statute of
limitations because “the jury could have reached the
verdict based on the fraudulent concealment theory” in
the alternative instruction. (App. A at 32a.) The Sixth
Circuit also held that the three general statements in
the class notice of the partial settlements - - concerning
continuation of the litigation and opt out rights - - were
sufficient to provide notice of the binding effect of the
subsequent directed verdict against a portion of the
class and a reduced judgment for another portion. The
opinion cited a 1950 case but did not address the
specific language of Rule 23(c)(2)(B). (App. A at 30a.)
The Sixth Circuit declined a petition for rehearing on
the former issue. (App. C at 39a.)
CIMCO petitions this Court for review of the Sixth
Circuit’s decision on those two holdings.
REASONS FOR GRANTING THE PETITION
This case presents important and common issues
arising in treble damages antitrust class actions.
These cases are one of the fastest growing categories
of litigation in federal courts with filings in 2008
reported to have increased by 27 percent. (ABA AT-
Daily Digest, Jan. 14, 2009.)
Most cases of this type follow government
proceedings and are brought on behaif of large groups
of customers or suppliers who may have been impacted
by alleged cartel activity. Classes of this type, which
9
are seeking damages, are customarily certified, if at
all, under Civil Rule 23(b)(3) because of common
questions of law or tact. The effect of the prior
government cases on the limitations periods for the
subsequent private actions, and the proper judicial
management of the class action procedure, are critical
to the fair resolution of these cases by federal district
courts. The prospect for trial court error in complex
litigation like this, and the temptation for courts of
appeals to accommodate error at the expense of
precedent and applicable procedural rules, can easily
corrupt a process intended to provide convenience and
efficiency to litigants without compromising their due
process rights.
This case illustrates antitrust class action problems
in two fundamental respects. The first presents jury
instructions on different premises for tolling the
antitrust statute of limitations. When _ those
instructions lead the jury to different relevant time
periods, but one is legally incorrect, it becomes critical
on review of the verdict to know whether the jury
relied on the incorrect instruction or a _ correct
instruction to set ti.e time parameters for both
evidence of a violation and calculation of damages.
The second issue, which is inherent in every (b)(3)
class action, is the seriousness of the command in Rule
23 that the trial court “must” provide certain
information in a notice to the absent members of the
class. When a district judge omits any of the specified
categories and class members are left to infer the
information or never to learn of it, the court has not
meaningfully satisfied the Rule’s directive that each
item listed in Rule 23(c)(2)(B) “must [be] clearly and
concisely stateld) in plain, easily understood
language.” Trial courts and litigants need to confront
10
these basic elements of ordinary due process in a
diligent and objective manner.
This Court has held on multiple occasions that a
criminal conviction’ or civil judgment” must be
reversed when it cannot be determined whether the
jury’s verdict was based on an erroneous instruction or
an alternative correct instruction. The Court has
applied that rule where the correct and incorrect
instructions involved different limitations periods,’
and it has reversed and remanded an antitrust treble
damages verdict on that ground.*’ Numerous circuit
courts” (including the Sixth Circuit until this
‘ Stromberg v. California, 283 U.S. 359, 367-68 (1931)); Williams
v. North Carolina, 317 U.S. 287, 291-92 (1942); Cramer v. United
States, 325 U.S. 1, 36 n.45 (1945); Terminiello v. City of Chicago,
337 U.S. 1, 5-6 (1949); Yates v. United States, 354 U.S. 298, 312
(1957).
* United New York and New Jersey Sandy Hook Pilots Ass’n v.
Halecki, 358 U.S. 613, 619 (1959); Sunkist Growers, Inc. uv.
Winkler & Smith Citrus Prods. Co., 370 U.S. 19, 29-30 (1962).
° Yates, supra n.1.
* Sunkist, supra n.2.
® See, e.g., Morrissey v. Nat'l Mar. Union of Am., 544 F.2d 19, 26-
27 (2d Cir. 1976); Avins v. White, 627 F.2d 637, 646 (3™ Cir. 1980);
Harwood v. Partredereit AF 15.5.81, 944 F.2d 1187, 1192-93 (4""
Cir. 1991), cert. denied, 503 U.S. 907 (1992); Woods v. Summisa
Co., 873 F.2d 842, 853-54 (5° Cir. 1989), cert. denied, 493 U.S.
1050 (1990); Webber v. Sobba, 322 F.3d 1032, 1038(8" Cir. 2003);
McMurray v. Deere and Co., 858 F.2d 1436, 1444 (10 Cir. 1988);
Dillard & Sons Const. Inc. v. Burnup & Sims, 51 F.3d 910, 916
(10° Cir 1995); Allen v. Wal-Mart Stores, Inc., 241 F.3d 1293,
1298-99 (10"' Cir. 2001).
11
case’) have reversed judgments in civil and admiralty
cases and remanded for a new trial unless it is
virtually certain that an incorrect instruction could not
have led to the jury verdict.
In this case, the Sixth Circuit adopted a new
standard, viz. that the jury verdict must be affirmed so
long as the jury “could have” relied on a correct
instruction instead of the erroneous one. This
standard not only conflicts with the principle set forth
in this Court’s precedents and the holdings of other
circuit courts, but it undermines litigants’ assurance of
due process by allowing juries to rely upon incorrect
instructions on the applicable law.
This Court has also mandated the best notice
practicable for a certified Rule 23(b)(3) class. Rule
23(c)(2)(B) was amended to eliminate any excuse for a
confusing or inadequate implementation of that
obligation. The Rule explicitly states that it is the
duty of the trial court to “direct to class members the
best notice” and then is unequivocal in its requirement
that the notice has to provide certain specified
information in terms understandable to laymen, not
just by implication to lawyers: “the notice must clearly
and concisely state in plain, easily understood
language” the express information set forth in seven
categories. Those seven categories were separated as
bullet points (now listed as subparagraphs i-vii) by the
2003 amendments to the Civil Rules (before class
®° Kosters v. The Seven-Up Co., 595 F.2d 347, 355 (6 Cir. 1979);
West Knoxville Assocs. Ltd. P’ship v. Ticor Title Ins. Co., 1997 US.
App. LEXIS 23942 at *28-29 (6" Cir. 1997); cf. Herrington v.
Edwards, 1999 U.S. App. LEXIS 1220 at *19-20 (6" Cir.), cert.
denied, 527 U.S. 1049 (1999) (criminal).
12
certification in this case) to make it obvious that each
is essential. The last category is the most important to
assure due process: according to the Rule, a class
member “must” be told “the binding effect of a class
judgment.”
This Court has had no occasion since the
promulgation of Rule 23(c)(2)(B) to encounter a lower
court that has simply ignored that mandated element
of adequate notice and deliberately proceeded to trial,
notwithstanding having been alerted to its omission.
Left uncorrected, this sort of noncompliance can be
repeated, thereby undermining the _ series of
progressively more demanding amendments to Rule 23
designed to assure due process
Civil Rule 23(c)(3) was also amended to reinforce
the requirement of a specific notice and to link that
notice to the ultimate judgment: “whether or not
favorable to the class, the judgment in a class action
must ... for any class certified under Rule 23(b)(3),
include and specify or describe those to whom the Rule
23(c)\(2) notice was directed, who have not requested
exclusion, and whom the court finds to be class
members.” This Court has never confronted a (b)(3)
class action judgment where that obligation was
completely circumvented, as it was in this case.
This Court should grant certiorari (a) to address
the application of its prior decisions to civil cases, and
the conflict between the circuits, where there is verdict
ambiguity between correct and erroneous jury
instructions, as well as (b) to require trial courts to
adhere to this Court’s class action rule.
13
I. THE SIXTH CIRCUITS NEW STANDARD
FOR AFFIRMING AN AMBIGUOUS JURY
VERDICT DEPARTS FROM ITS OWN PRIOR
STANDARD, CONFLICTS WITH THE
STANDARD ADOPTED IN OTHER CIRCUITS
AND CONTRADICTS THE DECISIONS OF
THIS COURT.
While speculating that the jury “could have” relied
on a fraudulent concealment instruction to reach its
verdict, the Sixth Circuit was unable to deny that the
jury also “could have” relied exclusively on the
erroneous statutory tolling instruction to establish the
relevant time period for both a Sherman Act violation
and class damages.
The former assumption was based on a pure guess
that the jury (a) may have considered evidence of
activities eight or nine years prior to the lawsuit for
violation purposes and (b) may have arbitrarily
reduced the rate of damages proffered by plaintiffs’
expert and substituted a lower rate of damages for
transactions from December 1992 to March 2000 (the
longer period if the fraudulent concealment instruction
was followed).
Nonetheless, the jury’s verdict was equally
consistent - - indeed, more consistent - - with plaintiffs’
argument of more recent wrongful acts in 1996 and
application of the expert’s full rate of damages just to
transactions from March 1996 to March 2000 (the
erroneous statutory tolling period). That possibility
would mean that the jury had rejected fraudulent
concealment as a matter of fact and had followed only
the erroneous statutory tolling instruction. There is
14
nothing in the record to resolve that inherent
uncertainty.
A. The Sixth Circuit’s New Standard, that a
Verdict Can Stand Where the Jury Was
Instructed on Alternate Theories and May
Have Followed Either a Correct or an
Erroneous Instruction, Will Permit Juries to
Rely upon Clear Errors of Law.
In Yates v. United States, 354 U.S. 298, 312 (1957),
this Court reaffirmed the requirement of reversal,
which it had established in a series of state and federal
criminal cases (n. 1, supra), where it cannot clearly be
determined whether the jury verdict was based on a
correct or an incorrect instruction of the law:
In these circumstances we think the proper rule
to be applied is that which requires a verdict to
be set aside in cases where the verdict is
supportable on one ground, but not on another,
and it is impossible to tell which ground the
jury selected.
The Sixth Circuit in this case effectively reversed
the impact of this rule by holding that the mere
possibility that an acceptable instruction “could have”
led to a verdict is sufficient to affirm. In so holding,
the Sixth Circuit not only deviated from the proper
rule enunciated by this Court and applied by other
circuit courts in civil cases, it also set aside its own
prior jurisprudence on this issuc.
The distinction between harmless and reversible
error in the face of dueling instructions always had
turned on whether the jury’s verdict “necessarily
15
demonstrates” that a “valid ground,” and not a legally
incorrect one, was the basis for the jury’s decision. See
discussion in United States v. Palazzolo, 71 F.3d 12338,
1235-37 (6" Cir. 1995). The Sixth Circuit had
acknowledged in its prior decisions that a “view of
probabilities concerning the jury’s reasoning” should
not sustain a verdict; there must be “a conclusive
showing from the record that the jury ‘necessarily’
based its verdict on” a proper instruction of the law.
Id.; cf. United States v. Rayborn, 491 F.3d 513 (6th Cir.
2007), cert. denied, 128 S.Ct. 1327 (2008) (jury verdict
affirmed where the jury “must have” followed a proper
instruction). If the Sixth Circuit had adhered to its
prior view, the virtual certainty test it had been
following would have required a reversal in this case
(Palazzolo, 71 F.3d. at 1238):
In the present case, the court gave an
instruction that was legally incorrect. The jury
had no way of determining that the instruction
misstated the law .... [T]he possibility of error
consisted of the jury following an erroneous
instruction of the law .... Indeed, we must
assume that the verdict lends itself at least to
the possibility that the jury found the
defendants guilty ... under an [erroneous]
instruction....
Instead of adhering to that principle, the Sixth Circuit
has now embraced the sufficiency of a mere possibility
that the jury ignored the erroneous instruction.
Other circuits have faithfully fellowed this Court’s
rule in civil cases (n. 3, supra). This case marks a
dramatic departure from the “must have,” “necessarily
conclusive showing” and “absolute
”» «
demonstrates,
16
certainty” criteria previously required to sustain an
ambiguous general verdict by adopting the very
different standard that a verdict will be affirmed
merely because the jury “could have” ignored an
incorrect instruction and, instead, applied another.
The Sixth Circuit has substituted a possibility test for
a certainty test, thereby expanding the class of cases
that will be immune from reversal and a new trial,
notwithstanding a jury’s acceptance of a clear error of
law.
The concept that a court can (1) provide a jury
multiple ways to arrive at a verdict, (2) give jurors
correct law on just one of those ways, (3) not be able to
determine whether they followed the correct or the
incorrect law and (4) accept the verdict because it is
merely possible that the jury itself “could have”
ignored every erroncous instruction, constitutes a
license for trial courts to be casual - - even reckless - -
in their instructions so long as at least one alternative
is accurate. Verdicts that are in fact the consequence
of a jury accepting a clear error of law will routinely be
exempt from reversal.
That approach, if tolerated by this Court, will
motivate parties to seek erroneous and prejudicial
alternative instructions, then argue them to the jury,
with the comfort that there is much to gain and
nothing to lose. Successful overreaching can generate
an enormous benefit without making a verdict induced
by procured error vulnerable on appeal. That is what
happened in this case with plaintiffs successfully
arguing for, in fact inducing, the erroneous statutory
toiling instruction.
17
A change this antithetical to prevailing law, the
traditional review of jury verdicts and fundamental
requirements of due process should not be tolerated.
Once the gate is opened for this kind of gamesmanship
at the trial level, there is no systemic discipline
because there is no risk of a negative consequence for
leading the trial court astray, and fata] legal errors are
likely to recur with some frequency.
B. The Sixth Circuit’s Standard Will Allow
Reviewing Courts to Affirm Verdicts without
Examining the Errors upon which the
Verdicts May Be Based.
The disposition below demonstrates’ the
consequence of the Sixth Circuit’s new approach. This
Court’s rule, and that of other circuits, has mandated
an examination of alternative instructions and
reversal of an ambiguous verdict where any of the
relevant instructions was legally incorrect. Under the
Sixth Circuit approach, a reviewing court can, and
presumably will, eschew a concern for errors and,
instead, pursue a search for any alternate correct
instruction on which the jury might have relied.
Having found at least one route to a verdict that would
have been lawful, the court of appeals would then not
need to consider whether any of the other possible
routes actually used by the jury would have caused the
jury to base its decision on legal error.
That is precisely what happened in this case. The
Sixth Circuit first concluded that the jury “could have”
reached its verdict by applying the fraudulent
concealment instruction. Then the court declined to
address the statutory tolling instruction on the
principle that it had become superfluous: “Because we
18
conclude that the jury could have reached the verdict
based on the fraudulent concealment theory, we do not
reach [CIMCO’s] objection to the statutory tolling
instruction.” (App. A at 32a.)
That approach to judicial review has abandoned the
rule announced by this Court, followed by the other
circuits, and previously endorsed by the Sixth Circuit
itself. Having found one unpoisoned piece of fruit in a
basket, the Sixth Circuit eschews any concern whether
the victim actually ate a different and fatal piece.
Il. THE SIXTH CIRCUIT HAS ELIMINATED
THE REQUIREMENT OF CIVIL RULE
23(c(2)(B) FOR NOTICE TO A CERTIFIED
RULE 23(b)(3) CLASS OF THE BINDING
EFFECT OF A CLASS JUDGMENT.
For decades, Rule 23(c) has required an explicit
notice to a Rule 23(b)(3) trial class of the binding effect
of a judgment on the absent members of the class. “At
least where a claim for legal relief in the form of
monetary damages is at stake, each class member’s
interest in litigation is presumptively sufficient to
constitute a property interest for purposes of the Due
Process Clause.” ABA Section of Litigation, Business
and Commercial Litigation in Federal Courts (2d ed.
2005), §16:29 at 348. “[T]he notice requirements of
Rule 23(c)(2) for 23(b)(3) class actions are mandatory
and may not be waived at the discretion of the district
court.” Id., §16:38 at 367.
The seven essential components for sufficient notice
to a Rule 23(b)(3) class were separated as bullet points
in the 2003 version of Rule 23(c) to make them even
more obvious. The Manual for Complex Litigation,
19
Fourth (§1.311) makes the point unequivocally that
none of them is optional. This Court explained in
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 (1974)
(omission in original) that “The Advisory Committee
described (c)(2) as ‘not merely discretionary and added
that the ‘mandatory notice pursuant to subdivision
(c)(2) ...is designed to fulfill requirements of due
process to which the class action procedure is of course
subject.”
The class notice is intended to protect both the
absent class members and the defendant. The former
are entitled to know that, if they entrust their claim to
the counsel who has volunteered to rerresent them,
they will be obliged to accept whatever result he may
achieve. The defendant is entitled to protection from
second-guessing by a disgruntled class member who
may otherwise believe he can sit on the sideline and
choose to opt in to take advantage of only a desirable
outcome. Courts have described this problem as
“sideline sitting.” See, e.g., Robinson v. Union Carbide
Corp., 544 F.2d 1258, 1262 (5th Cir. 1977).
By its decision in this case, the Sixth Circuit now
permits general language in a notice of partial
settlements under Rule 23(e) - - concerning opt out
rights and the fact that litigation will continue against
non-settling defendants - - to replace a Rule
23(c)(2)(B) notice with no reference whatsoever to the
binding effect on class members of any later judgment
for or against the non-settling defendants. While
someone legally trained may infer that this would be
the ultimate consequence of ongoing litigation, a class
notice is directed to laymen with httle or no familiarity
with legal procedure.
20
When a layman is told that “the litigation will
continue,” that he must opt out to “pursue any claims
against any defendants,” including the settling
defendants, and that, if he opts out, he “will be
excluded” from the class and may “present any claim
... by filing ycur own lawsuit,” he does not necessarily
understand that he will have no later opportunity to
avoid or challenge a result with which he disagrees.
That is why Rule 23(c)(2)(B) obligates the trial court to
make that clear. The Sixth Circuit has seriously
eroded that requirement by endorsing notice language
that cannot be said to meet the requirement of Rule
23(c(2B) for clear, concise, plain and easily
understood language explaining that point.
Since settlements with fewer than all defendants
are common in antitrust conspiracy cases, and
plaintiffs’ counsel are often inclined to seek approval!
of those settlements to facilitate interim distributions
of the proceeds and payment of fees before a trial
against the remaining defendants, this form of
inadequate notice, if tolerated, can easily proliferate.
Il. THE SIXTH CIRCUIT PERMITS A FINAL
JUDGMENT THAT DOES NOT CONFORM
TO CIVIL RULE 23(c)(3).
When the trial court consciously proceeded to a
final judgment without satisfying the notice
requirement, clarifying the verdict or amending the
class certification order, the court deliberately ignored
both the language of Rule 23(c)(1)(C) and Justice
Douglas’ observation in Eisen, supra, 417 U.S. at 184,
that “[i]Jt is as plain as words can make it that the
court which decides that a full class action can be
21
maintained can alter or amend its order ‘before the
decision on the merits.”
Rule 23(c)(3) performs two important functions.
First, it demands clarity in a class action judgment for
purposes of identifying those to whom it applies and to
facilitate enforcement. Second, it imposes self-
discipline on the trial court by forcing a reconciliation
between the formal disposition of the case and the
process by which the case reached its conclusion.
Thus, for a (b)(3) class, Rule 23(c)(3) requires a link to
the specific form of notice mandated by Rule
23(c)(2)(B), and it also requires a link to the verdict to
establish those persons covered by the jury’s decision.
When it entered its judgment (set forth at App. B,
37a-38a), the court was incapable of complying with
the explicit requirements of Rule 23(c)(3). Since no
(c)(2) notice had ever been directed to anyone, the
court was unable to satisfy the provision that “the
judgment in a class action must...specify or describe
those to whom the Rule 23(c)(2) notice was directed.”
The judgment did not even identify those receiving the
Rule 23(e) settlement notice. Since there was no way
to determine which generators of ferrous scrap had
been included by the jury - - those selling from 1992 to
2000 or only those selling from 1996 to 2000, the court
was unable to satisfy the provision that “the judgment
in a Class action must ... specify or describe those ...
whom the court finds to be class members.”
Having accommodated the trial court’s notice
deficiency, and having concluded that the inherent
ambiguity in the transactions and class members the
jury intended to include in its aggregate verdict was
also acceptable, the Sixth Circuit chose to ignore the
22
derivative defects in the judgment entry without
comment.
The form of judgment adopted by the trial court
and its acceptance by the Sixth Circuit effectively
nullified Rule 23(c)(3). This approach will eliminate
the discipline imposed by the Rule to assure that the
disposition of a class action accurately reflects
satisfaction of the necessary procedural and due
process prerequisites.
CONCLUSION
The petition should be granted and a writ of
certiorari issued to the United States Court of Appeals
for the Sixth Circuit.
Respectfully submitted,
Leshie W. Jacobs
Counsel of Record
THOMPSON HINE LLP
3900 Key Center
127 Public Square
Cleveland, OH 44114-1291
(216) 566-5675
Attorneys for Petitioner
APPENDIX
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 06-4511
[Decided and Filed: May 15, 2008]
In re: SCRAP METAL )
ANTITRUST LITIGATION _)
)
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 02-00844—-Kathleen McDonald O’Malley,
District Judge.
Argued: October 30, 2007
Before: BATCHELDER, COLE, and SUTTON, Circuit
Judges.
OPINION
R. GUY COLE, JR., Circuit Judge. Defendant-
Appellant Columbia Iron and Metal Company
(“Columbia”) appeals a jury verdict finding Columbia
liable for antitrust violations and awarding the
Plaintiffs-Appellees damages exceeding $20 million.
The most critical question on appeal relates to the
damages testimony of Plaintiffs-Appellees’ expert, Dr.
Jeffrey Leitzinger. Columbia asserts that Leitzinger’s
2a
damages calculations are unreliable, and that the
district court therefore erred in admitting his
testimony. Columbia also raises three additional
arguments on appeal: (1) the damages award is not
supported by sufficient evidence and represents an
impermissible “fluid recovery”; (2) the district court
improperly allowed the case to proceed as a class
action; and (3) the district court improperly instructed
the jury on the tolling of the statute of limitations.
Finding no reversible error by the district court, we
AFFIRM the verdict and damages award.
I. BACKGROUND
Plaintiffs-Appellees Lincoln Electric Company and
Profile Grinding, Inc. filed suit in 2002 on behalf of
themselves and a class of industrial scrap-generating
companies in Northeastern Ohio (collectively,
“Plaintiffs”) against, inter alia, Defendant-Appellant
Columbia; Columbia National Group (Columbia’s
parent company); Harry Rock & Associates; M.
Weingold & Co., Inc.; DeMilta Iron and Metal; Bay
Metal, Inc.; Bluestar Metal Recycling, Inc.; and
Parkwood Iron and Metal, Inc. (collectively,
“Defendants”). Plaintiffs generate scrap metal, both
ferrous (iron-based) and nonferrous, as a byproduct of
their manufacturing. Plaintiffs sell the unprocessed
scrap metal to brokers and dealers, such as
Defendants, who then haul, clean, sort, and process
the scrap before selling it to end users, such as steel
mills. The movement of unprocessed scrap from
generators to dealers generally works as foliows: The
dealers submit bids to the generators for the purchase
of unprocessed scrap during a specified time period at
a set price. In setting their bid price, dealers consult
various trade publications, which report the prevailing
3a
prices that dealers can expect to charge users for the
scrap after they have processed it. To ensure that they
turn a profit, dealers set their bid price for the
unprocessed scrap below the amount they will
ultimately charge the users for the processed scrap. If
the bid is accepted by the scrap generator, the
generator and the dealer enter into a contract at the
bid price for the bid period.
In this case, Plaintiffs allege that Defendants
violated § 1 of the Sherman Act, 15 U.S.C. § 1, by
conspiring to restrain and eliminate competition in the
purchase of unprocessed industrial scrap metal in
Northeastern Ohio. Specifically, Plaintiffs claim that
Defendants engaged in a variety of unlawful acts
including allocating scrap metal generators among
dealers, agreeing not to compete with one another,
submitting rigged bids, setting prices for the purchase
of unprocessed scrap metal, and imposing financial
penalties on co-conspirators for disobeying allocation
agreements.
On May 30, 2003, Plaintiffs moved to certify a class
consisting of all generators who sold scrap metal to
Defendants and/or their co-conspirators between
December 1992 and March 2000. The district court
certified the class in March 2004.
Prior to trial, Plaintiffs settled with or dismissed all
but three Defendants. In 2005, the remaining
Defendants, including Columbia, filed a motion to
preclude damages testimony from Plaintiffs’ expert
economist, Dr. Jeffrey Leitzinger. The district court
denied the motion, finding that Defendants’ arguments
relating to Leitzinger’s damages analysis went to the
weight, not the admissibility, of his testimony.
4a
Defendants then moved for summary judgment, which
the district court also denied. Three days before trial,
Columbia moved to decertify the class, claiming that it
had just discovered that the class notice was
inadequate. The district court denied Columbia's
motion, and the three remaining Defendants, including
Columbia, proceeded to trial.
At the conclusion of the trial, the court directed a
verdict against Plaintiffs for all claims relating to non-
ferrous scrap-metal sales on the ground that Plaintiffs
failed to establish any proof of injury or damages
relating to such transactions. As for the remaining
claims, those relating to ferrous scrap-metal sales, the
jury returned a verdict against Columbia only and
awarded Plaintiffs $11.5 million in damages. The
district court, pursuant to 15 U.S.C. § 15(a), tripled the
jury’s award to $34.5 million, subtracted the amount
received from the settling Defendants, and thereupon
entered a judgment against Columbia in the amount of
$23,036,000.
Columbia moved for judgment as a matter of law
and, alternatively, for a new trial or a reduction of the
damages. The district court denied both motions, and
Columbia timely appealed.
II. ANALYSIS
Columbia presents four issues on appeal. First,
Columbia claims that the district court erred in
denying its motion to exclude Leitzinger’s testimony.
Second, Columbia asserts that the evidence was
insufficient to support the damages award and that
the award represents an impermissible “fluid
recovery.” Third, Columbia argues that the district
5a
court did not comply with Federal Rule of Civil
Procedure 23 in certifying a class and allowing the
case to proceed as a class action. Finally, Columbia
cnallenges the district court’s instructions to the jury
on the tolling of the statute of limitations. We address
each of these arguments in turn.
A. Admissibility of Leitzinger’s Testimony
1. Leitzinger’s Calculations
We begin by summarizing Leitzinger’s testimony,
which Plaintiffs offered to prove the amount of
damages the class incurred as a result of Defendants’
anticompetitive conduct. Leitzinger employed what is
referred to interchangeably as the “during and after”
or “before and efter” method to determine the amount
Defendants underpaid Plaintiffs for unprocessed scrap
metal. Employing this method, the profits made by
antitrust defendants during the alleged conspiracy are
compared with the profits made by the defendants in
the period after the alleged conspiracy. In simple
terms, by analyzing this difference, an expert can
determine the amount of profit during the conspiracy
period had the antitrust violation not occurred.
Presumably, the data would show that, but for the
anticompetitive conduct, the defendants’ profit margin
would have been lower and the plaintiffs’ profit margin
would have been higher.
Here, Leitzinger calculated the difference, both
during and after the alleged conspiracy, between (1)
the generator-dealer transactions, i.e., the amount the
dealers paid to the generators for unprocessed scrap
metal, and (2) the dealer-user transactions, i.e., the
amount for which the dealers sold processed scrap
6a
metal to users. Leitzinger used actual transaction data
from a sample of generators and dealers for the
generator-dealer transactions. However, in order to
control for factors other than the conspiracy that might
have affected prices, Leitzinger used index prices for
the dealer-user transactions, which were published on
a weekly basis in American Metal Market (“AMM”)
and /ron Age magazine’s Scrap Price Bulletin (“SPB”).
These index prices represented the prevailing prices
users paid dealers for processed scrap. Leitzinger
testified that Defendants also used these published
prices to determine the amount they would bid on the
generators’ unprocessed scrap. The “price spread”—the
difference between (1) the price a dealer paid to a
generator for umprocessed scrap, and (2) the
comparative figure from a price index, representing
the amount the dealer earned from selling the
processed scrap tc a user—was the dealer’s profit. By
comparing the price spread during the conspiracy
period with the price spread after the conspiracy
period, Leitzinger concluded that the results were
consistent with anticompetitive conduct: Defendants’
profits declined after the conspiracy, while the
generators’ profits rose.
Leitzinger used the SPB index to analyze only the
ferrous sqrap-metal market. He concluded that, on
average, there had been a 16.4 percent undercharge on
the purchase cf unprocessed ferrous scrap meta!
during the conspiracy period. Put another way,
Leitzinger concluded that Defendants would have paid
Plaintiffs 16.4 percent more for unprocessed ferrous
scrap metal in the absence of an antitrust conspiracy.
Because Defendants’ total purchases of ferrous scrap
metal from the class members during the class period
amounted to $127.6 million, Leitzinger calculated
7a
damages at $20.9 million ($127.6 million times 16.4
percent).
As to the non-ferrous scrap-metal market,
Leitzinger used the AMM index to make his
calculations, rather than the SPB index, because
market participants regularly used the AMM index to
price non-ferrous scrap. Leitzinger was unable to
identify any undercharge affecting dealers’ purchase of
non-ferrous scrap, which he attributed to his inability
to assemble “enough data of the right quality to be able
to really and truly see what had happened on the
nonferrous side.”
2. Scrap Price Bulletin
Columbia objects to Leitzinger’s use of the SPB
index to ascertain the pricing of dealer-user ferrous
scrap-metal sales. Although evidence at trial showed
that the SPB index was commonly used by dealers as
a benchmark for pricing processed ferrous scrap,
Columbia argues that this index is not a reliable
source for damages calculations because on December
7, 1998 and October 4, 1999, Iron Age issued a
correction to the SPB, stating that thirteen of the
eighteen categories of processed ferrous scrap had
been reported incorrectly for an unknown period of
time. At his deposition, Leitzinger explained that this
adjustment was merely a result of the magazine’s
“change in [its] method of reporting prices.” Leitzinger
said that /ron Age decided to switch from reporting
prices “FOB dealer to FOB user,” thereby adding
additional costs like transportation and broker fees to
8a
the reported prices.’ To “account for the Jron Age
reporting method change” and “to measure the value
that generators received relative to a consistent
processed scrap price,” Leitzinger “backed out” the
December 1998 and October 1999 “corrections” by
subtracting them from the SPB index prices.
Following Leitzinger’s deposition, Columbia
submitted the affidavit of John Ambrosia, an Iron Age
reporter, who explained that the magazine adjusted
the SPB prices because, for some unexplained reason,
they failed to reflect actual transaction prices for the
Northeastern Ohio area. The corrections were
therefore necessary to ensure that the SPB index
accurately reported market prices. Ambrosia stated
that the adjustments had nothing to do with a change
in pricing measuring points, e.g., “FOB dealer to FOB
user,” as Leitzinger believed. Moreover, Ambrosia said
that he did not know when the ferrous scrap prices
had begun to depart from actual market prices.
Columbia asserts that because Leitzinger assumed
that the increases in the SPB index simply reflected a
change in the price measuring point, he mistakenly
concluded that he could create a “consistent processed-
ferrous-scrap-price data set” by “backing out” the
amount of the SPB increases. Plaintiffs concede that
Leitzinger’s assumption that Jron Age simply changed
reporting methods was incorrect and that the SPB
' “FOB,” meaning “free on board” is a delivery term which
indicates what transportation costs and risks the dealer must
assume. “FOB dealer” means that the dealer is responsible for
getting the goods to a common carrier; “FOB user” means that the
dealer is responsible for getting the goods to the user. 18 Richard
A. Lord, Williston on Contracts § 52:11 (4th ed. 2007).
9a
corrections were necessary to accurately report market
prices for processed ferrous scrap. Columbia thus
argues that Leitzinger’s analysis is fatally flawed for
two reasons: First, as the argument goes, Leitzinger
did not have a reliable data set to work with prior to
December 7, 1998, when the SPB index was brought
back into alignment with actual market prices. Second,
by “backing out” the corrections, Leitzinger made the
SPB data with which he was working inaccurate.
Columbia compares Leitzinger’s conclusion that
there was a 16.4 percent undercharge during the
conspiracy with his inability to identify any
measurable damages in connection with non-ferrous
scrap sales. Columbia argues that this inconsistency
makes no sense because the same scrap dealers were
purchasing both ferrous and non-ferrous scrap during
the conspiracy, usually from the same generators. It is
therefore reasonable to expect that if there was an
undercharge for the sale of ferrous scrap, there
similarly would have been an undercharge for the sale
of non-ferrous scrap. Columbia argues that there is an
obvious culprit behind this discrepancy: Whereas
Leitzinger used the inaccurate SPB price index in
calculating the ferrous-scrap undercharge (and then
made that data even more inaccurate by subtracting
out the 1998 and 1999 adjustments), he used the AMM
price index in analyzing the non-ferrous scrap market.
Columbia points out that, unlike the SPB index, the
AMM required no “corrections” to ensure that it
accurately reflected actual market prices. Further, at
trial, Columbia’s expert testified that when he
substituted the AMM data into Leitzinger’s ferrous
analysis, “most of the apparent damages disappeared.”
Plaintiffs counter Columbia’s argument in several
ways. First, Plaintiffs claim that Leitzinger’s decision
10a
to rely on the SPB index for ferrous transactions and
on the AMM index for non-ferrous transactions was
proper because that is exactly what the relevant
industry actors did. Testimony at trial established that
industry participants used the SPB to price ferrous
scrap and the AMM to price non-ferrous scrap. Second,
and relatedly, Plaintiffs argue that regardless of
whether the SPB numbers were accurate, because the
industry participants referred to those numbers for
their pricing decisions, it was entirely appropriate for
Leitzinger to rely on them to calculate Plaintiffs’
damages in connection with their ferrous scrap sales.
Third, Plaintiffs argue that Leitzinger made the right
call when he “backed out” the SPB adjustments
because the dealers themselves did the same thing. In
other words, the dealers did not increase their bid
price to the generators based on the new SPB
numbers, but instead held firm to the old numbers.
Thus, according to Plaintiffs, even though Leitzinger
got the reason for the SPB adjustments wrong, all that
matters is that he treated the adjustments just as the
industry participants did—by backing them out of the
SPB prices. Stated otherwise, Plaintiffs claim that
Leitzinger relied on the SPB index to account for
market changes, and when the SPB index adjusted, he,
just like Defendants, backed out the adjustments.
Finally, Plaintiffs assert that Columbia’s argument
founders on the testimony of its own expert, who
stated at trial that as long as the SPB index moved
“roughly parallel” to actual prices of processed ferrous
scrap, inaccuracies in the index were not material.
Indeed, Plaintiffs displayed a graph at trial showing
“roughly parallel” lines representing actual sales
prices for processed ferrous scrap and the SPB indices.
lla
3. The District Court’s Ruling
The district court denied Columbia’s motion to
preclude Leitzinger’s testimony. The court explained
that it had
spent a substantial amount of time and effort
reviewing the parties’ voluminous filings
relative to the admissibility—or
inadmissibility—of Dr. Leitzinger’s testimony
pursuant to the applicable standards set forth
in Daubert v. Merrell Dow Pkharm., Inc., 509
U.S. 579 (1993). Despite [Columbia’s] many
well-supported attacks on the underlying data
employed and assumptions made by Dr.
Leitzinger in reaching his assumed damage
calculation, the Court finds that those attacks
are best reserved for cross-examination and do
not, in this case, rise to the level warranting
exclusion under Daubert.
(JA 799-800.) The court went on to state that there
was “substantial room for debate” about Leitzinger’s
data set and “substantial bases upon which to criticize”
certain of his assumptions. Nonetheless, the court
concluded that
Dr. Leitzinger has _ provided reasoned
explanations for the assumptions that he made
and has, at least at [this] stage, presented
viable arguments to support his data set
choices. Whether those explanations will
withstand rigorous cross-examination, or
challenges based on alternative assumptions or
data choices, is not the issue now before the
Court. The Court concludes that Dr. Leitzinger’s
12a
opinions satisfy the Daubert standard and that
[Columbia’s} criticisms of those opinions simply
are appropriate fodder for cross-examination.
(Id.)
In response to the two post-trial motions filed by
Columbia, a motion for judgment as a matter of law
and a motion for a new trial, the district court made
one final observation regarding the nature and
strength of Leitzinger’s testimony. As noted,
the Court spent a substantial period of time
analyzing, and re-analyzing, the Defendants’
Daubert motions secking to exclude Leitzinger’s
testimony in its entirety. The Court felt that
Defendants’ challenges were substantial and
written attacks on his testimony articulately
stated. It was only after several passes through
the motion papers that the Court was able to
understand that those challenges, though
pointed, went to the weight and not the
admissibility of Leitzinger’s opinions- i.e., did
not justify the wholesale exclusion of testimony
Defendants sought.
The Court finds it notable that, after hearing
Leitzinger’s testimony in open court, hearing his
responses to counsel’s pointed attacks on cross-
examination, and hearing what ultimately
proved to be only limited critiques of
Leitzinger’s analysis by [Defendants’ expert),
the Court was more convinced than it had been
when it made its initial Daubert ruling that its
ruling was correct. ... Ultimately, the debate
13a
over Leitzinger’s testimony was left where it
should have remained-with the jury.
In re Scrap Metal Antitrust Litigation, No.
1:02CV0844, 2006 WL 2850453, at *18 (N.D. Ohio
Sept. 30, 2006).
4. Standard of Review
We review for abuse of discretion the district court's
determination to admit or exclude expert testimeny,
“recognizing, of course, that such review calls for
deference to the district court’s decision.” Conwood Co.,
L.P. v. U.S. Tobacco Co., 290 F.3d 768, 781 (6th Cir.
2002) (citing Clay v. Ford Motor Co., 215 F.3d 663, 666
(6th Cir. 2000)). Such deference applies to the way in
which the court assesses admissibility as well as the
court’s ultimate decision of admissibility. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 152-53 (1999). Thus,
we will not substitute our own judgment for that of the
district court and will reverse an evidentiary decision
“only where we are left with a definite and firm
conviction that [the district court] committed a clear
error of judgment.” Conweod, 290 F.3d at 781 (citing
Singleton v. United States, 277 F.3d 864, 870 (6th Cir.
2002); Trepel v. Roadway Express, Inc., 194 F.3d 708,
716 (6th Cir.1999)).
5. Discussion
The starting point in our analysis is Federal Rule
of Evidence 702, which governs the use of expert
testimony. Rule 702 provides:
If sciertific, technical, or other specialized
knowlecs will assist the trier of fact to
l4a
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise, if (1) the testimony is
based upon sufficient facts or data, (2) the
testimony is the product of reliable principles
and methods, and (3) the witness has applied
the principles and methods reliably to the facts
of the case.
This rule, as amended in 2000, reflects the Supreme
Court’s decisions in Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993) and Kumho. Fed. R. Evid. 702
advisory committee’s notes, 2000 amend. (“In Daubert
the Court charged trial judges with the responsibility
of acting as gatekeepers to exclude unreliable expert
testimony, and the Court in Kumho clarified that this
gatekeeper function applies to all expert testimony,
not just testimony based in science.”).
Parsing the language of the Rule, it is evident that
a proposed expert’s opinion is admissible, at the
discretion of the trial court, if the opinion satisfies
three requirements. First, the witness must be
qualified by “knowledge, skill, experience, training, or
education.” Fed. R. Evid. 702. Second, the testimony
must be relevant, meaning thet it “will assist the trier
of fact to understand the evidence or to determine a
fact in issue.” Jd. Third, the testimony must be
reliable. Jd. Rule 702 guides the trial court by
providing general standards to assess reliability:
whether the testimony is based upon “sufficient facts
or data,” whether the testimony is the “product of
reliable principles and methods,” and whether the
expert “has applied the principles and methods
15a
reliably to the facts of the case.” Jd. In addition,
Daubert provided a non-exclusive checklist for trial
courts to consult in evaluating the reliability of expert
testimony. These factors include: “testing, peer review,
publication, error rates, the existence and
maintenance of standards controlling the technique’s
operation, and general acceptance in the relevant
scientific community.” United States v. Langan, 263
F.3d 613, 621 (6th Cir. 2001) (citing Daubert, 509 U.S.
at 593-94). The test of reliability is “flexible,” and the
Daubert factors do not constitute a “definitive checklist
or test,” but may be tailored to the facts of a particular
case. Kumho, 526 U.S. at 150 (citing Daubert, 509 U.S.
at 593). Indeed, we have recognized that the Daubert
factors “are not dispositive in every case” and should
be applied only “where they are reasonable measures
of the reliability of expert testimony.” Grossv. Comm’r,
272 F.3d 333, 339 (6th Cir. 2001).
On appeal, Columbia does not argue that Leitzinger
was unqualified as an expert or that his testimony was
irrelevant. Nor does Columbia challenge generally the
reliability of the “during and after” method to
determine damages; indeed, this method is broadly
accepted for proving antitrust damages. See Conwood,
290 F.3d at 793 n.8 (explaining that “[t)he before and
after theory compares the plaintiff's profit record prior
to the violation with that subsequent to it” and finding
such method accepted in antitrust cases) (internal
quotation and citation omitted). Columbia’s argument,
rather, is limited to challenging the reliability of
Leitzinger’s testimony specifically because of his use of
the inaccurate SPB price .: dex and his alterations to
the SPB’s prices. Columbia coitends that Leitzinger
used erroneous data and necessarily produced an
erroneous conclusion; in sum, “garbage in, garbage
16a
out.” Columbia argues that the district court should
have, therefore, excluded Leitzinger’s proposed
testimony as insufficiently reliable under Rule 702.
Columbia’s argument is unpersuasive because it
fundamentally confuses the credibility and accuracy of
Leitzinger’s opinion with its reliability. Contrary to
Columbia’s assertions, a determination that proffered
expert testimony is reliable does not indicate, in any
way, the correctness or truthfulness of such an
opinion. Indeed, although “nothing in either Daubert
or the Federal Rules of Evidence requires a district
court to admit opinion evidence which is connected to
existing data only by the ipse dixit of the expert,” Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997), a court
must be sure not “to exclude an expert’s testimony on
the ground that the court believes one version of the
facts and not the other.” Fed. R. Evid. 702 advisory
committee’s note, 2000 amend. Instead, the
requirement that an expert’s testimony be reliable
means that it must be “supported by appropriate
validation—i.e., ‘good grounds,’ based on what is
known.” Daubert, 509 U.S. at 590. The task for the
district court in deciding whether an expert’s opinion
is reliable is not to determine whether it is correct, but
rather to determine whether it rests upon a reliable
foundation, as opposed to, say, unsupported
speculation. See Fed. R. Evid. 702 (explaining that
expert testimony must be based on “sufficient facts or
data” and the “product of reliable principles and
methods”); Conwood, 290 F.3d at 792 (stating that the
district «curt must determine whether proffered expert
testimony “rests on a reliable foundation”) (internal
quotation and citation omitted).
17a
An analogous case is illustrative. In Quiet Tech.
DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333,
1343-44 (11th Cir. 2003), the appellant challenged the
admission of the appellee’s expert testimony relating
to computational fluid dynamics (“CFD”). The
appellant focused on the specific application of the
CFD method, not on the reliability of the CFD method
in general. Specifically, the appellant argued that the
expert used incorrect data or was missing data to run
the CFD study and used the wrong equations to run
the analysis. Jd. at 1344. If the data used was
incorrect, the appellant argued, the conclusions
necessarily were flawed as well and should be excluded
from the jury. Jd. at 1344-45. The Eleventh Circuit,
however, held that such an attack goes to the weight
of the evidence, rather than to its admissibility:
[The appellant] does not argue that it is
improper to conduct a CFD study using the
sorts of aerodynamic data that [the appellee]
employed, but rather that the specific numbers
that [the appellee] used were wrong. Thus, the
alleged flaws in [the appellee’s] analysis are of
a character that impugn the accuracy of his
results, not the general scientific validity of his
methods.
The identification of such flaws in generally
reliable scientific evidence is precisely the role
of cross-examination.
Id. at 1345 (emphasis added).
That is not to say that a significant error in
application will never go to the admissibility, as
opposed to the weight, of the evidence. Indeed, the
18a
2000 amendments to Rule 702 explain that an expert
witness must “appl{y] the principles and methods
reliably to the facts of the case.” Fed. R. Evid. 702(3);
see also Fed. R. Evid. 702 advisory committee’s note,
2000 amend. (“[A]ny step that renders the analysis
unreliable . . . renders the expert’s testimony
inadmissible.”) (internal quotation marks omitted).
But “rejection of expert testimony is the exception,
rather than the rule,” id., and we will generally permit
testimony based on allegedly erroneous facts when
there is some support for those facts in the record.
For example, in Jahn vu. Equine Services, 233 F.3d
382 (6th Cir. 2000), this Court reversed a district
judge’s decision holding inadmissible proposed expert
testimony, and remanded for a hearing. The Court
explained that although the opinions of the proffered
testimony “may very well be ‘shaky,” because the
opinions were based upon facts in the record, and were
not “assumptions” or “guesses,” challenges merely
went to the accuracy of the conclusions, not to the
reliability of the testimony. Jd. at 390-93. See also
McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 801
(6th Cir. 2000) (“An expert’s opinion, where based on
assumed facts, must find some support for those
assumptions in the record. However, mere ‘weaknesses
in the factual basis of an expert witness’ opinion...
bear on the weight of the evidence rather than on its
admissibility.’ (quoting United States v. L.E. Cooke Co.,
991 F.2d 336, 342 (6th Cir.1993)) (internal citations
omitted)); Cooke, 991 F.2d at 342 (“Where an expert’s
testimony amounts to ‘mere guess or speculation,’ the
court should exclude his testimony, but where the
opinion has a reasonable factual basis, it should not be
excluded. Rather, it is up to opposing counsel to
inquire into the expert’s factual basis.”)
19a
Here, Columbia takes issue with the factual basis
of Leitzinger’s testimony, specifically his use of the
SPB data, his understanding of what the December
1998 and October 1999 adjustments meant, and his
reasons for backing out those adjustments. But
Columbia does not argue that Leitzinger’s opinion is
entirely unsupported, that he merely pulled the
numbers comprising his calculations out of thin air.
Insofar as Columbia claims that Leitzinger should not
have used the SPB index at all, that argument fails in
light of the uncontroverted testimony at trial
establishing that the industry participants used the
SPB index to fix prices for ferrous scrap.
Next, we agree with the district court that
Leitzinger’s “backing out” of the SPB adjustments did
not render his expert opinion fatally unreliable and
subject to exclusion. Leitzinger offered a foundation for
how and why he analyzed the data as he did. He
testified at trial that subtracting the SPB corrections
mirrored exactly what dealers had done in the
marketplace at the time the corrections were
announced. In support, he referred to three letters that
dealers sent in December 1998 to three generators
with unexpired contracts that contained price formulas
tied to the SPB. The letters requested a modification
to the contracts in light of the substantial increase in
the SPB index. As Leitzinger explained at trial:
(''}he major dealers ... promptly sent letters
to customers [i.e., generators] saying here’s the
change in index. We want to adjust the
differential to back it out. Just because the
magazine changed the index doesn’t mean we
are now going to pay you more money. If our
contract used to be index less 20, and they just
—
20a
raised the index by $20, . . . we want it to be
index less 40. So they immediately sent letters
out saying we want to, in effect, unwind the
increase by Scrap Price Bulletin.
(JA 1195.)
In addition, Leitzinger referenced a graph at trial
that showed “roughly parallel” lines, one representing
actual sale prices for processed ferrous scrap and the
other representing the corresponding SPB index
prices. Even Defendants’ expert agreed that for the
purposes of Leitzinger’s analysis, it did not matter
whether the SPB index accurately reflected price for
processed scrap and that all that mattered was that
the SPB index moved “roughly parallel” to actual
prices for processed scrap. Thus, the graph provided
evidence that indeed the market followed the SPB
index even after December 1998 and October 1999
corrections were made and that any inaccuracies in the
SPB were irrelevant so long as the index moved up and
down over time parallel to actual market prices.
In sum, the jury was free to give Leitzinger’s
opinion little or no weight, and to credit instead
Defendants’ attacks on his decision to back out the
adjustments. We cannot say that the district court
abused its discretion in admitting Leitzinger’s
testimony when the record shows that he performed
his éenalysis according to a reliable method (the
“during and after” method) and reliably applied that
method to the facts of this case. Moreover, Leitzinger’s
calculations were tested on cross-examination and
subjected to further scrutiny and criticism by
Defendants’ own expert. Daubert, 509 U.S. at 593
(explaining that in analyzing the reliability of an
2la
expert’s testimony, the “key question” is “whether it
can be (and has been) tested”). The question of
whether Leitzinger’s opinion is accurate in light of his
use of the SPB data goes to the weight of the evidence,
not to its admissibility, and the district court
appropriately passed the torch to the jury to make this
determination. See id. at 596 (“Vigorous cross-
examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky
but admissible evidence.”); see also Stecyk v. Bell
Helicopter Textron, Inc., 295 F.3d 408, 415 n.3 (3d Cir.
2002) (“While the Federal Rules of Evidence call upon
the courts to serve as gatekeepers who independently
evaluate the admissibility of expert opinion testimony,
they rely upon the discretion of the trial courts—not
the discretion of the courts of appeals. Because the
record contains some factual basis—albeit shaky—for
[the expert’s] testimony, the District Court did not
abuse its discretion in performing this gatekeeping
function.” (internal citations omitted)).
Finally we note that the district court did not abuse
its discretion by failing to hold a Daubert hearing,
because the record on the expert testimony was
extensive, and the Daubert issue was fully briefed by
the parties. Clay v. Ford Motor Co., 215 F.3d 663, 667
(6th Cir. 2000) (stating that a district court is not
required to conduct a Daubert evidentiary hearing to
qualify an expert witness). Columbia claims that the
district court’s opinion in response to Columbia’s
motion to preclude Leitzinger’s testimony was cursory.
We conclude that the court accurately considered the
key issues, found the testimony to be sufficiently
reliable by stating that Leitzinger “provided reasoned
explanaticns” and “presented viable arguments” for his
22a
calculations, and concluded that Columbia’s attacks
were most appropriate for cross-examination. We,
therefore, cannot say that the district court abused its
discretion.
B. Damages Award
Columbia argues that even crediting Leitzinger’s
testimony, there is insufficient evidence to support the
damages verdict and, in any event, the verdict is an
impermissible “fluid recovery.”
Columbia raised this issue in its Rule 50(a) and (b)
motions for judgment as a matter of law. We review a
district court’s refusal to grant a party’s motion for
judgment as a matter of law de novo. Greene v. B.F.
Goodrich Avionics Sys., Inc., 409 F.3d 784, 788 (6th
Cir. 2005). We have explained that the standard of
review is identical to that used by the district court:
The evidence should not be weighed, and the
credibility of the witnesses should not be
questioned. The judgment of this court should
not be substituted for that of the jury; instead,
the evidence should be viewed in the light most
favorable to the party against whom the motion
is made, and that party given the benefit of all
reasonable inferences. The motion should be
granted, and the district court reversed, only if
reasonable minds could not come to a conclusion
other than one favoring the movant.
Tisdale v. Fed. Exp. Corp., 415 F.3d 516, 531 (6th Cir.
2005) (quoting Williams v. Nashville Network, 132
F.3d 1123, 1130-31 (6th Cir. 1997)).
23a
1. Sufficiency of the Evidence
“An antitrust plaintiff seeking treble damages
under section 4 of the Clayton Act must prove an
antitrust violation, fact of damage or injury, and
measurable damages.” Danny Kresky Enter. Corp. v.
Magid, 716 F.2d 206, 209 (3d Cir. 1983).
Columbia argues that Plaintiffs failed to provide
the jury with sufficient evidence to support the jury’s
finding of individual and market-wide damages.
Columbia recognizes that Leitzinger opined that every
class member who sold ferrous scrap incurred a 16.4
percent undercharge for every sale during the class
period, resulting in aggregate damages of $20.9
million. But because the jury reached a verdict of $11.5
million in damages, Columbia argues, the jury must
have resorted to speculation and conjecture to arrive at
such a figure, illustrating the insufficiency of the
damages evidence on damages.
Columbia’s challenge to the jury’s verdict on
damages is therefore directed at the accuracy of the
amount of damages and not the fact of damages.
Columbia’s argument, in essence, is that Leitzinger’s
testimony alone was insufficient for the jury to have
accurately fixed Plaintiffs’ damages.
The district court, rejecting Columbia’s argument,
explained:
In sum, Leitzinger testified that, if a
conspiracy to depress prices via customer
allocation existed during the alleged period, it
would have uniformly impacted the relevant
scrap metal market, and that impact would
24a
have been one that was shared in common by
all of the ferrous generators. He went on to
testify that the uniform injury experienced by
all of the ferrous class members was a 16.4%
undercharge during the conspiracy period.
Further, Leitzinger testified that the
undercharge experienced by the named
Plaintiffs specifically was 16.4% as well.
If credited, therefore, Leitzinger’s testimony
clearly established evidence of injury to the
named Plaintiffs and the class as a whole, and
measurable damages to the named Plaintiffs
and the class as a whole. .. . If the jury credited
Leitzinger’s conclusions—in whole or in part—it
reasonably could have reached the conclusions
that it did.
In re Scrap Metal, 2006 WL 2850453, at *17-18.
We agree. First, a jury is entitled to award
damages in an antitrust case based on expert
testimony. See Texaco Inc. v. Hasbrouck, 496 U.S. 548,
572 (1990 ) (holding that “expert testimony .
provided a sufficient basis for an acceptable estimate
of the amount of damages”). Second, “[t]he antitrust
cases are legion which reiterate the proposition that,
if the fact of damages is proven, the actual
computation of damages may suffer from minor
imperfections.” South-East Coal Co. v. Consol. Coal
Co., 434 F.2d 767, 794 (6th Cir. 1970). Once liability is
established, therefore, a plaintiffs proof of damages is
evaluated under a more lenient standard. See J. Truett
Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 567
25a
(1981). As the Supreme Court has stated in explaining
its “traditional rule excusing antitrust plaintiffs from
an unduly rigorous standard of proving antitrust
injury,” id. at 565, “it does not ‘come with very good
grace’ for the wrongdoer to insist upon specific and
certain proof of the in,:ry which it has itself inflicted.”
Id. at 566-67 (quoting Hetzel v. Baltimore & Ohio R.R.,
169 U.S. 26, 39 (1898)). “Any other rule would enable
the wrongdoer to profit by his wrongdoing at the
expense of his victim.” Bigelow v. RKO Radio Pictures,
Inc., 327 U.S. 251, 264 (1946). Further, ‘the fact that
the jury chose to assess damages in an amount
substantially below that recommended by plaintiffs
expert does not mean that the evidence offered in
support of lost profits was inadequate as a matter of
law.” Falls Steel Tube & Mfg. Co. v. Trumark, Inc., No.
94-3981, 1995 WL 750541, at *3 (6th Cir. 1995) (per
curiam) (explaining that even though defendant
identified weaknesses in the evidence of damages, “we
do not find it to be so ‘speculative or remote’ that the
matter should have been taken from the jury”). See
also Rodney v. Nw. Airlines, Inc., 146 F. App’x 783, 791
(6th Cir. 2005) (“A plaintiff need not calculate a
specific damage figure so long as he proposes an
acceptable method for calculating damages.”).
We conclude that Leitzinger’s testimony is
sufficient to support the jury’s damage award.
2. Fluid Recovery
Columbia further argues that the jury’s verdict
represents an “impermissible fluid recovery” because
the jury was only permitted to return a lump-sum
verdict for ferrous generators as a group without
determining the damages incurred by individual class
26a
members. Columbia’s argument again is premised on
its disagreement with Leitzinger’s finding that every
ferrous scrap sale in the class period had been
depressed at the same rate (16.4 percent). Because the
jury returned a verdict in an amount less than
Leitzinger’s estimated damages, Columbia argues that
there is no basis for concluding that the jury accepted
Leitzinger’s premise that the alleged conspiracy had a
uniform impact. In other words, Columbia states that
it is impossible to figure out how the jury reached its
verdict or to which class members the verdict applies
and in what amounts. Columbia therefore asserts that
the verdict is an impermissible fluid recovery.
Columbia, however, confuses the concept of fluid
recovery with aggregate damages. “Fluidrecovery
refers to the distribution of unclaimed or unclaimable
funds to persons not found to be injured but who have
interests similar to those of the class.” In re NASDAQ
Market-Makers Antitrust Litig., 169 F.R.D. 4938, 525
(S.D.N.Y. 1996). See also Schwab v. Philip Morris
USA, Inc., No. CV 04-1945, 2005 WL 3032556, at *1
(E.D.N.Y. 2005) (“Recoveries described as ‘fluid’
include distributior. ©f damages through price
reductions rather than by cash to individual plaintiffs;
distribution of settlement or damage funds left
unclaimed by individuals to nonprofit organizations or
to states for uses intended to benefit class members;
and distribution of damages calculated on a classwide
basis to individual plaintiffs or through verious
indirect means.” (internal citations omitted)). Indeed,
the cases on which Columbia relies involved scenarios
where damages could not be returned to any
meaningful number of class members, and the
plaintiffs accordingly proposed a fluid recovery.
27a
Here, Plaintiffs did not propose a fluid recovery;
instead they provided evidence of a _ classwide
aggregate injury. “Damages in an antitrust class action
may be determined on a classwide, or aggregate, basis,
without resorting to fluid recovery where the
[evidence] . . . provide[s} a means to distribute
damages to injured class members in the amount of
their respective damages.” Jn re NASDAQ, 169 F.R.D.
at 526. Leitzinger produced evidence supporting an
aggregate recovery because each Plaintiff suffered a
16.4 percent undercharge. Leitzinger testified that the
scrap metal market was well-functioning so as to
distribute the effect of an antitrust violation equally
across class members. The jury accepted Leitzinger’s
uniform-impact theory and awarded aggregate
damages based on the injury to each class member.
That the jury awarded a lower amount than Leitzinger
suggested does not mean that it rejected Leitzinger’s
uniform-impact theory; instead, the jury may have
simply rejected the undercharge amount of 16.4
percent.
C. Class Certification
Columbia argues that the district court erred in
certifying a class and allowing the trial to proceed as
a class action because (1) the “predominance of
common questions” requirement of Rule 23(b)(3) was
not met, and (2) Plaintiffs did not satisfy the notice
requirement of Federal Rule of Civil Procedure
23(c)(2)(B). “The district court’s decision certifying the
class is subject to a ‘very limited’ review and will be
reversed ‘only upon a strong showing that the district
court's decision was a clear abuse of discretion.” Olden
v. LaFarge Corp., 383 F.3d 495, 507 (6th Cir. 2004)
28a
(quoting Armstrong v. Davis, 275 F.3d 849, 867 (9th
Cir. 2001)).
1. Predominance of Common Questions
Columbia contends that Plaintiffs did not meet the
“predominance of common questions” requirement of
Rule 23(b)(3) because damages could not be calculated
on a class-wide basis.
In addition to the prerequisites of Rule
23(a)—-numerosity, commonality, typicality, and fair
representation—Rule 23(b) requires that (1) questions
common to the class predominate over questions
affecting only individual members, and (2) class
resolution is superior to alternative methods for
adjudicating the controversy. Fed. R. Civ. P. 23(b)(3).
Put differently, the proposed class must be
“sufficiently cohesive to warrant adjudication by
representation.” Amchem Prods., Inc. v. Windsor, 521
U.S. 591, 623 (1997).
Columbia erroneously assumes that the issue of
damages must predominate. To the contrary,
“(p]lredominance is a test readily met in certain cases
alleging ... violations of the antitrust laws,” Amchem,
521 U.S. at 625, because proof of the conspiracy is a
common question that is thought to predominate over
the other issues of the case. 7AA Wright & Miller
§ 1781. Indeed, we have never required a precise
mathematical calculation of damages before deeming
a class worthy of certification. See Olden, 383 F.3d at
508 (affirming class certification where liability could
be determined for the class as a whole, despite
individual issues of damages). Thus, even where there
are individual variations in damages, the
29a
requirements of Rule 23(b)(3) are satisfied if the
plaintiffs can establish that the defendants conspired
to interfere with the free-market pricing structure. See
Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197
(6th Cir. 1988) (“[T]he mere fact that questions
peculiar to each individual member of the class action
remain after the common questions of the defendant’s
liability have been resolved does not dictate the
conclusion that a class action isimpermissible.”).
Here, the district court found that the “allegations
of price-fixing and market allocation . . . will not vary
among class members.” (JA 263 (emphasis added).)
Accordingly, the court found that the “fact of damages”
was a question common to the class even if the amount
of damages sustained by each individual class member
varied. See Beattie v. CenturyTel, Inc., 511 F.3d 554,
564 (6th Cir. 2007) (“[clommon issues may
predominate when liability can be determined on a
class-wide basis, even when there are some
individualized damage issues”) (quoting Jn re Visa
Check/ MasterMoney Antitrust Litig., 280 F.3d 124,
139 (2d Cir. 2001)); see also Bogosian v. Gulf Oil Corp..,
561 F.2d 434, 456 (3d Cir. 1977) (explaining that
although damages calculation in antitrust action may
involve some individualized issues, “it has been
commonly recognized that the necessity for calculation
of damages on an individual basis should not preclude
class determination when the common issues which
determine liability predominate”). We, therefore, find
no error in the district court’s analysis.
2. Notice
Columbia next argues that Plaintiffs failed to
inform sufficiently absent class members of “the
30a
binding effect of a class judgment.” Fed. R. Civ. P.
23(c)(2)(B). In April 2004, the district court issued a
Notice of Class Determination and Proposed Partial
Settlements (hereinafter, “Notice”). Columbia did not
object to this Notice until January 2006, three days
before the scheduled trial. Without commenting on
Columbia’s dilatory decertification motion, we conclude
that the district court did not abuse its discretion in
determining that the Notice was adequate.
In three distinct places, the Notice informed class
members of the effects of remaining a member of the
class. First, contrary to Columbia’s contention that the
Notice focused exclusively on the agreements with the
settling defendants, it concisely and clearly informed
class members that “[w]hether or not the settlements
... are approved, the litigation will continue against
the non-settling defendants.” (JA 283.) Second, the
Notice specified the binding effect of both the proposed
settlement and any future lawsuit by advising class
members of the need to opt out in order to “pursue any
claims against any defendants.” (JA 283.) Third, the
Notice informed the class members that by opting out
of the class and the proposed settlements, they would
not be bound by a judgment: “You will be excluded
from the Class Plaintiffs’ prosecution of the claims
against all defendants . . .[and] you may present any
claim you may have against .. . any other defendant
by filing your own lawsuit.” (JA 291-92.) Thus, the
Notice was adequate in form and content to satisfy the
requirements of the Federal Rules and due process.
See Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950) (class notice must be “reasonably
calculated, under ail the circumstances, to apprise
interested parties of the pendency of the action and
3la
afford them an opportunity to present their
objections”).
D. Jury Instructions
Columbia contends that the trial court erred when
it instructed the jury on tolling and the applicable
statute of limitations. We review a district court’s jury
instructions for abuse of discretion. United States v.
Ross, 502 F.3d 521, 527 (6th Cir. 2007). “A judgment
may be reversed based upon an improper jury
instruction only if the instructions, viewed as a whole,
were confusing, misleading, or prejudicial.” 7d.
(internal quotations and citations omitted).
Antitrust actions are subject to a four-year statute
of limitations, meaning of course, that suit must be
brought within four years after the cause of action
accrued. 15 U.S.C. § 15(b). A cause of action, however,
does not necessarily “accrue” when the defendant
commits the act causing the plaintiffs injury, but may
be tolled until the plaintiff discovers or should have
discovered the injury. See Zenith Radio Corp. v.
Hazeltine Research Inc., 401 U.S. 321, 338 (1971). For
instance, acts of fraudulent concealment by the
defendant toll the limitations period for as long as the
concealment continues. Norton -Children’s Hosp., Inc.
v. James E. Smith & Sons, Inc., 658 F.2d 440, 443 (6th
Cir. 1981). In addition, pursuant to 15 U.S.C. § 16(i),
the limitations period is tolled during the pendency of
related criminal or civil proceedings by the
government, plus an additional one-year period
thereafter.
Plaintiffs filed suit on August 15, 2002. Columbia
asserts, therefore, that August 15, 1998 is the date on
32a
or after which Plaintiffs must establish Columbia’s
participation in the alleged conspiracy. The district
court, however, suspended the limitations period
pursuant to 15 U.S.C. § 16(i) and instructed the jury
that it could consider Defendants’ acts four years prior
to March 2000, based on ongoing, related government
proceedings beginning at that time. The district court’s
ruling meant that the jury could consider Defendants’
conduct as of March of 1996. The district court also
gave a fraudulent concealment instruction allowing
the jury to alter further the dates in consideration, if
it found the requisite elements. Columbia claims that
both of these instructions were erroneous. Because we
conclude that the jury could have reached the verdict
based on the fraudulent concealment theory, we do not
reach Columbia’s objection to the statutory tolling
instruction.
The district court gave the following fraudulent
concealment instruction:
To estabtish fraudulent concealment as to a
specific defendant in this case, plaintiffs must
prove each of the following elements by a
preponderance of the evidence:
(1) First, that the members of the conspiracy
actively concealed the a!l.eged conduct
that caused plaintiffs antitrust injuries.
It is not enough for plaintiffs to show
that the members of the conspiracy failed
to disclose the alleged conduct; rather
plaintiffs must prove that they took
active and affirmative steps to prevent
plaintifts from learning about the alleged
conduct, such as by keeping their
33a
meetings or agreements secret from their
accounts or taking steps to conceal the
fact of their non-competition; and
(2) Second, that plaintiffs failed to discover
the fact of the unlawful conspiracy; and
(3) Third, that plaintiffs exercised
reasonable diligence in the circumstances
and still did not discover the alleged
conduct.
In deciding whether plaintiffs have proved
fraudulent concealment by the alleged
conspirators, you may consider a number of
factors. First, the law recognizes that a
conspiracy is, by nature, self-concealing. Thus,
you may consider the very acts giving rise to the
conspiracy when deciding whether it was
concealed from the plaintiffs; there is no
requirement that the affirmative acts of
concealment be independent of the conspiracy
itself. You may also consider other activities
which operate to conceal anti-competitive
conduct such as prearranged or phone bids,
confining knowledge of any anti-competitive
activity to a limited core group of individuals,
engaging in clandestine meetings or using false
identities ....
[A]s with other acts in a conspiracy, any
affirmative acts of concealment by one
conspiravor are chargeable to all you find to
have been members of the conspiracy. Similarly,
plaintiffs need not establish concealment on a
victim-by-victim basis; affirmative acts of
34a
concealment generally are considered to have an
industry-wide effect.
If you find that plaintiffs have proven each of
the elements of fraudulent concealment, then
you may find that the doctrine of fraudulent
concealment applies to plaintiffs’ claims. In that
event, plaintiffs may then seek to recover
damages from the date of the earliest injury
that you find they suffered, if any. If you find
that plaintiffs have failed to prove any one of
these elements, then you are limited to the post-
March 1996 time period outlined in the previous
“affirmative defense” instruction.
(JA 1033-34.) Columbia argues that the court erred by
instructing the jury, in the foregoing emphasized
language, that it could find fraudulent concealment or
apply statutory tolling (with the earliest date of
consideration in March 1996), instead of stating that
the jury could find fraudulent concealment, statutory
tolling, or find that neither applied (meaning the
earliest date of consideration would be August 1998).
Because the jury heard evidence based upon which it
could have found fraudulent concealment even before
1996 and lasting through 1998, we conclude that any
error in the jury instructions is harmless. See United
States v. Rayborn, 491 F.3d 513, 520 (6 Cir. 2007)
(“Even assuming arguendo that the instruction was
given in error, ‘a legally-erroneous jury charge will not
justify reversal of a conviction if its probable effect on
the verdict was inconsequential.”) (quoting United
States v. Carney, 387 F.3d 436, 449 (6th Cir. 2004)).
Columbia argues that some of the evidence of
fraudulent concealment should not apply to it because
35a
it was based on acts taken by other Defendants.
Fraudulent concealment, however, may be established
through the acts of co-conspirators. See Riddell v.
Riddell Washington Corp., 866 F.2d 1480, 1493 (D.C.
Cir. 1989) (“affirmative acts of concealment by one or
more of the conspirators can be imputed to their co-
conspirators for purposes of tolling the statute of
limitations”); New York v. Hendrickson Bros., Inc. , 840
F.2d 1065, 1084-85 (2d Cir. 1988) (same). Columbia
cites no authority to support its argument that
fraudulent concealment must be shown in relation to
each plaintiff in a class action.
Finally, Columbia argues that the district court
erred by instructing that “the law recognizes that a
conspiracy is, by nature, self-concealing.” Indeed, in
the law of this Circuit, a plaintiff seeking to invoke the
doctrine of fraudulent concealment in order to toll the
statute of limitations in an antitrust case must prove
“affirmative acts” ef concealment; “concealment by
mere silence is not enough.” Pinney Dock & Transp.
Co. v. Pein Cent. Corp., 838 F.2d 1445, 1467 (6th Cir.
1988) (citation omitted). The district court’s
instruction, however, stated accurately this standard
in its instruction: “It is not enough for plaintiffs to
show that the members of the conspiracy failed to
disclose the alleged conduct; rather plaintiffs must
prove that they took active and affirmative steps to
prevent plaintiffs from learning about the alleged
conduct... .” (JA 1033.)
Therefore, we find no abuse of discretion.
Il. CONCLUSION
For these reasons, we AFFIRM.
36a
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 06-4511
[Filed May 15, 1008]
In re: SCRAP METAL )
ANTITRUST LITIGATION )
)
Before: BATCHELDER, COLE, and
SUTTON, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
THIS CAUSE was heard on the record from the
district court and was argued by counsel.
IN CONSIDERATION WHEREOF, it is ORDERED
that the judgment of the district court is AFFIRMED
in its entirety.
ENTERED BY ORDER OF it1E COURT
/s/
Leonard Green
Clerk
APPENDIX B
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
CASE NUMBER: 1:02CV844
{Filed February 10, 2006]
PROFILE GRINDING, et al.,
v.
COLUMBIA NATIONAL
)
)
)
)
)
GROUP, et al. )
)
JUDGMENT IN A CIVIL CASE
@ Jury Verdict. This action came before the Court
for a trial by jury. The issues have been tried and the
jury has rendered its verdict.
QO Decision by Court. This action came to trial or
hearing before the Court. The issues have been tried
or heard and a decision has been rendered.
It is ordered and adjudged that judgment is hereby
entered in favor of the plaintiffs and against defendant
Columbia Iron & Metal Company in the amount of
$23 ,036,000.00 ($11,500,000.00 trebled per 15 U.S.C.
15(a) to $34,500,000.00, then offset by $11,464,000.00
per other settlements). Plus fees and costs, to be
38a
determined through post-judgment submissions
relating thereto.
February 10, 2006 Geri M. Smith
Date Clerk
/s/
(By) Deputy Clerk Christine M. Huth
39a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 06-4511
[Filed October 20, 2008]
IN RE: SCRAP METAL )
ANTITRUST LITIGATION )
)
ORDER
BEFORE: BATCHELDER, COLE, and SUTTON,
Circuit Judges.
The court having received a petition for rehearing
en banc, and the petition having been circulated not
only to the original panel members but also to all other
active’ judges of this court, and no judge of this court
having requested a vote on the suggestion for
rehearing en banc, the petition for rehearing has been
referred to the original! panel.
The panel has further reviewed the petition for
rehearing and concludes that the issues raised in the
petition were fully considered upon the original
* Judge Moore recused herself from participation in this ruling.
40a
submission and decision of the case. Accordingly, the
petition is denied.
ENTERED BY ORDER OF THE COURT
/s/
Leonard Green
Clerk
4la
APPENDIX D
i5 U.S.C. § 1
§ 1. Trusts, etc., in restraint of trade illegal;
penalty
Every contract, combination in the form of trust or
otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign
nations, is hereby declared to be illegal. Every person
who shall make any contract or engage in any
combination or conspiracy hereby declared to be illegal
shall be deemed guilty of a felony, and, on conviction
thereof, shall be punished by fine not exceeding
$100,000,000 if a corporation, or, if any other person,
$1,000,000, or by imprisonment not exceeding 10
years, or by both said punishments, in the discretion
of the court.
15 U.S.C. § 15(a)
§ 15. Suits by persons injured
(a) Amount of recovery; prejudgment interest. Except
as provided in subsection (b), any person who shall be
injured in his business or property by reason of
anything forbidden in the antitrust laws may sue
therefor in any district court of the United States in
the district in which the defendant resides or is found
or has an agent, without respect to the amount in
controversy, and shall recover threefold the damages
by him sustained, and the cost of suit, including a
42a
reasonable attorney’s fee. The court may award under
this section, pursuant to a motion by such person
promptly made, simple interest on actual damages for
the period beginning on the date of service of such
person’s pleading setting forth a claim under the
antitrust laws and ending on the date of judgment, or
for any shorter period therein, if the court finds that
the award of such interest for such period is just in the
circumstances. In determining whether an award of
interest under this section for any period is just in the
circumstances, the court shall consider only--
(1) whether such person or the opposing party, or
either party’s representative, made motions or
asserted claims or defenses so lacking in merit as
to show that such party or representative acted
intentionally for delay, or otherwise acted in bad
faith;
(2) whether, in the course of the action involved,
such person or the opposing party, or either party’s
representative, violated any applicable rule,
statute, or court order providing yor sanctions for
dilatory behavior or otherwise providing for
expeditious proceedings; and
(3) whether such person or the opposing party, or
either party’s representative, engaged in conduct
primarily for the purpose of delaying the litigation
or increasing the cost thereof.
* & &
43a
15 U.S.C. § 15b
§ 15b. Limitation of actions
Any action to enforce any cause of action under section
4, 4A, or 4C [15 USCS §§ 15, 15a, 15c] shall be forever
barred unless commenced within four years after the
cause of action accrued. No cause of action barred
under existing taw on the effective date of this Act
shall be revived by this Act.
15 U.S.C. § 16(i)
§ 16. Judgments
(i) Suspension of limitations. Whenever any civil or
criminal proceeding is instituted by the United States
to prevent, restrain, or punish violations of any oi the
antitrust laws, but not including an action under
section 4A [15 USCS § 15a], the running of the statute
of limitations in respect of every private or State right
of action arising under said laws and based in whole or
in part on any matter complained of in said proceeding
shall be suspended during the pendency thereof and
for one year thereafter: Provided, however, That
whenever the running of the statute of limitations in
respect of a cause of action arising under section 4 or
4C [15 USCS §§ 15, 15c] is suspended hereunder, any
action to enforce such cause of action shall be forever
barred unless commenced either within the period of
suspension or within four years after the cause of
action accrued.
44a
APPENDIX E
Fed. R. Civ. P. 23 (b)(3), (c), (d) and (e)
Rule 23. Class Actions
* K +
(b) Types of Class Actions. A class action may be
maintained if Rule 23(a) is satisfied and if:
OK OK
(3) the court finds that the 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
45a
(D) +ue likely difficulties in managing a class
action.
(c) Certification Order; Notice to Class Members;
Judgment; Issues Classes; Subclasses.
(1) Certification Order.
(A) Time to Issue. At an early practicable time
after a person sues or is sued as a class
representative, the court must determine by
order whether to certify the action as a class
action.
(B) Defining the Class; Appointing Class
Counsel. An order that certifies a class action
must define the class and the class claims,
issues, or defenses, and must appoint class
counsel under Rule 23(g).
(C) Altering or Amending the Order. An order
that grants or denies class certification may be
altered or amended before final judgment.
(2) Notice.
(A) For (b)(1) or (b)(2) Classes. For any class
certified under Rule 23(b)(1) or (b)(2), the court
may direct appropriate notice to the class.
(B) For (b)(3) Classes. For any class certified
under Rule 23(b)(3), the court must direct to
class members the best notice that is practicable
under the circumstances, including individual
notice to all members who can be identified
through reasonable effort. The notice must
46a
clearly and concisely state in plain, easily
understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(ii1) the class claims, issues, or defenses;
(iv) that a class member may enter an
appearance through an attorney if the
member so desires;
(v) that the court will exclude from the class
any member who requests exclusion;
(vi) the time and manner for requesting
exclusion; and
(vii) the binding effect of a class judgment on
members under Rule 23(c)(3).
(3) Judgment. Whether or not favorable to the
class, the judgment in a class action nuwust:
(A) for any class certified under Rule 23(b)(1) or
(b)(2), include and describe those whom the
court finds to be class members; and
(B) for any class certified under Rule 23(b)(3),
include and specify or describe those to whom
the Rule 23(c)(2) notice was directed, who have
not requested exclusion, and whom the court
finds to be class members.
(4) Particular Issues. When appropriate, an action
may be maintained as a class action with respect to
particular issues.
(5) Subclasses. When appropriate, a class may be
divided into subclasses that are euch treated as a
class under this rule.
47a
(d) Conducting the Action.
(1) In General. In conducting an action under this
rule, the court may issue orders that:
(A) determine the course of proceedings or
prescribe measures to prevent undue repetition
or complication in presenting evidence or
argument;
(B) require--to protect class members and fairly
conduct the action--giving appropriate notice to
some or all class members of:
(i) any step in the action;
(ii) the proposed extent of the judgment; or
(iii) the members’ opportunity to signify
whether they consider the representation
fair and adequate, to intervene and present
claims or defenses, or to otherwise come into
the action;
(C) impose conditions on the representative
parties or on intervenors;
(D) require that the pleadings be amended to
climinate allegations about representation of
absent persons and that the action proceed
accordingly; or
(E) deal with similar procedural matters.
(2) Combining and Amending Orders. An order
under Rule 23(d\1) may be altered or amended
from time to time and may be combined with an
order under Rule 16.
48a
(e) Settlement, Voluntary Dismissal, or Compromise.
The claims, issues, or defenses of a certified class may
be settled, voluntarily dismissed, or compromised only
with the court’s approval. The following procedures
apply to a proposed settlement, voluntary dismissal, or
compromise:
(1) The court must direct notice in a reasonable
manner to all class members who would be bound
by the proposal.
(2) If the proposal would bind class members, the
court may approve it only after a hearing and on
finding that it is fair, reasonable, and adequate.
(3) The parties seeking approval must file a
staternent identifying any agreement made in
connection with the proposal.
(4) If the class action was previously certified under
Rule 23(b)(3), the court may refuse to approve a
settlement unless it affords a new opportunity to
request exclusion to individual class members who
had an earlier opportunity to request exclusion but
did not do so.
(5) Any class member may object to the proposal if
it requires court approval under this subdivision
(e); the objection may be withdrawn only with the
court’s approval.
49a
APPENDIX F
Jury Instruction on Statutory Tolling
In this case, the law imposes “ tour year limit on the
plaintiffs’ claim, which limit dates backward from
March of 2000. Thus, unless the statute of limitations
is tolled or extended for the reasons described in the
Court’s next instruction [on fraudulent concealment},
the plaintiff may only prevail ... in the aileged
conspiracy on or after March of 1996, and may only
recover damages arising from conduct occurring after
that date.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.