Mr. Dee's Inc. v. Inmar, Inc.

Mr. Dee's Inc. v. Inmar, Inc.

Opinion

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on "Defendants' Motion to Exclude the Supplemental Report and Testimony of Plaintiffs' Expert Witness Pursuant to FRE 702 and Daubert" (Docket Entry 212) (the "Expert Motion"). For the reasons that follow, the Court will deny the Expert Motion, such that the Court may consider the proposed expert testimony in deciding whether class certification remains appropriate.¹

BACKGROUND

I. Procedural History

Alleging anticompetitive behavior in violation of Section 1 of the Sherman Act, Mr. Dee's Inc., Retail Marketing Services, Inc., and Connecticut Food Association (the "Plaintiffs") seek relief in this action against Inmar, Inc. ("Inmar"), Carolina Manufacturer's Services ("CMS"),² Carolina Services,³ and Carolina Coupon Clearing, Inc. ("CCC")⁴ (the "Defendants"). [*3]  (Docket Entry 145 (the "Operative Complaint"), ¶¶ 1, 114.) According to the Operative Complaint, Defendants conspired with International Outsourcing Services, LLC ("IOS") "to allocate customers and markets and to fix prices" (id., ¶ 1), which scheme allegedly resulted in increased coupon-processing fees for entities that transacted with Defendants or IOS. (See id., ¶¶ 1-7.)

Plaintiffs originally sought to

bring this action, pursuant to [Federal Rule of Civil Procedure] 23 [("Rule 23")], on behalf of . . . [a]ll entities in the United States that have been overcharged by IOS or [Defendants] for coupon[-]processing services from January 1, 1997 through the present (and continuing until the effects of IOS's and [Defendants]'s fraudulent and anticompetitive scheme ceases).

(Id., ¶ 96.) To that end, Plaintiffs moved to certify two classes: "[a]ll manufacturers in the United States that have purchased coupon[-]processing services directly from IOS, Defendants, or their subsidiaries or affiliates, from April 11, 2001 through March 28, 2007" (Docket Entry 151 at 15); and (2) "[a]ll retailers or retailer associations in the United States that have purchased coupon[-]processing services directly from IOS, Defendants, or their subsidiaries [*4]  or affiliates, from April 11, 2001 through March 28, 2007" (id. at 15-16). (See Docket Entry 150 (the "Class Certification Motion").)

In connection with the Class Certification Motion, Plaintiffs submitted a report from Kathleen Grace ("Grace"), whom Plaintiffs tendered as an expert (see Docket Entry 151 at 15). (Docket Entry 151-12 (the "Original Grace Report").) Defendants opposed the Class Certification Motion (see Docket Entry 158), attaching their own expert report from Michael Kheyfets ("Kheyfets") (Docket Entry 159-1 (the "Original Kheyfets Report")). Plaintiffs replied (Docket Entry 172), submitting a rebuttal report from Grace (Docket Entry 172-1 (the "Rebuttal Grace Report")).⁵ Concurrent with their opposition to the Class Certification Motion, Defendants moved to exclude Grace's testimony and the Original Grace Report. (Docket Entry 160 (the "Old Expert Motion"); see also Docket Entries 161 (Declaration), 162 (supporting memorandum).) Plaintiffs responded in opposition (Docket Entry 175),⁶ and Defendants replied (Docket Entry 188).

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