In In re: Chocolate Confectionary Antitrust Litigation, Middle District of Pennsylvania Judge Christopher C. Conner, certified a class of direct chocolate purchasers in price-fixing multidistrict litigation against Nestle USA Inc., The Hershey Co., and Mars Inc. Despite limited guidance from the Third Circuit on the level of evidence required to determine whether the testimony of certain expert witnesses is admissible at the class certification phase, the court did the Daubert analysis to conclude that the testimony of both of the plaintiffs’ expert witnesses were reliable. The court held that the Daubert analysis is appropriate in this case at the class certification stage because direct purchasers’ proof of predominance rests entirely on the shoulders of their expert witnesses, so the court must evaluate the reliability and fitness of the proffered testimony.
The main dispute over certification in this case was the fact that some of the class members paid different net prices for chocolate than others. However, the judge ruled that this issue had no bearing on several of the class certification requirements. According to the court, the same allegations of a conspiracy to fix the price of chocolate products will be made for all class members; the fact that class members ultimately paid a different price for certain products is a damages question which plaintiffs chose to address through expert witnesses. And based on those expert witnesses, the judge said he was satisfied that the plaintiffs could show damages on a classwide basis.