After Conner dismissed the defendants' Daubert motions regarding the two experts, he went on to hold that the class had met the standard for certification under Federal Rule of Civil Procedure 23(b)(3) meeting the bar for predominance and superiority.
Regarding the more onerous standard of predominance, Conner said, the "direct purchasers have thoroughly satisfied this burden."
"Based upon the direct purchasers' expert testimony, the court finds that proof of antitrust injury may be accomplished with evidence common to the class despite the facts that: (1) chocolate confectionary products are heavily branded and (2) many class members paid different net prices for these products," Conner said.
Likewise, Conner held that having the direct purchasers proceed as a class is superior to handling their suits separately.
Conner's opinion is a "pretty good example of how one would comply" if the U.S. Supreme Court rules that Daubert review is appropriate at the class certification stage, said H. Laddie Montague Jr., of Berger & Montague in Philadelphia. Montague is on the team representing the class.
"I thought he handled it very well," he said of Conner's treatment of the Daubert issue.
If Daubert review of expert witnesses at the class certification stage definitively becomes law as the result of a Supreme Court ruling in Comcast v. Behrend, then Conner's opinion in this case would comply, Montague said. The Comcast case originated in the Eastern District of Pennsylvania.
A Hershey spokesman said the company would continue to fight the plaintiffs' allegations.
"We believe the allegations in this case are without merit," said Jeff Beckman, a spokesman for Hershey. "Hershey will vigorously defend itself as the legal process unfolds," he said.
Jonathan Brightbill and Thomas Yannucci, of Kirkland & Ellis in Washington, D.C., are representing Hershey.
(Copies of the 58-page opinion in In re Chocolate Confectionary Antitrust Litigation, PICS No. 12-2317, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)