USCA4 Appeal: 23-2165 Doc: 64 Filed: 02/12/2025 Pg: 1 of 18

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-2165

MR. DEE’S INC., on behalf of themselves and all others similarly situated; RETAIL MARKETING SERVICES, INC., on behalf of themselves and all others similarly situated; CONNECTICUT FOOD ASSOCIATION, on behalf of themselves and all others similarly situated,

Plaintiffs – Appellants,

v.

INMAR, INC.; CAROLINA MANUFACTURER’S SERVICES, INC.; CAROLINA SERVICES; CAROLINA COUPON CLEARING, INC.,

Defendants – Appellees.

------------------------------

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,

Amicus Supporting Appellee.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:19−cv−00141−WO−LPA)

Argued: December 10, 2024 Decided: February 12, 2025

Before WILKINSON, QUATTLEBAUM, and BERNER, Circuit Judges. USCA4 Appeal: 23-2165 Doc: 64 Filed: 02/12/2025 Pg: 2 of 18

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Quattlebaum and Judge Berner joined.

ARGUED: Daniel Lee Low, KOTCHEN & LOW LLP, Washington, D.C., for Appellants. Lisa R. Bugni, KING & SPALDING LLP, San Francisco, California, for Appellees. ON BRIEF: Daniel Kotchen, KOTCHEN & LOW LLP, Washington, D.C.; Kearns Davis, Matthew B. Tynan, BROOKS PIERCE MCLENDON HUMPHREY & LEONARD LLP, Greensboro, North Carolina, for Appellants. Anne M. Voigts, Palo Alto, California, Mateo de la Torre, New York, New York, Matthew V.H. Noller, KING & SPALDING LLP, San Francisco, California; Samuel B. Hartzell, Pressly McAuley Millen, WOMBLE BOND DICKINSON (US) LLP, Raleigh, North Carolina, for Appellees. Jennifer B. Dickey, Jonathan D. Urick, UNITED STATES CHAMBER LITIGATION CENTER, Washington, D.C.; Brian D. Schmalzbach, MCGUIREWOODS LLP, Richmond, Virginia, for Amicus Curiae.

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WILKINSON, Circuit Judge:

Plaintiffs-appellants Mr. Dee’s Inc., Retail Marketing Services, Inc., and

Connecticut Food Association are purchasers of coupon processing services. They sought

class certification in a lawsuit alleging that Inmar, Inc. and its subsidiaries participated in

an anticompetitive conspiracy to raise coupon processing fees. After multiple rounds of

briefing, the district court rejected plaintiffs’ attempts to certify a manufacturer purchaser

class. Plaintiffs appealed, arguing that each of the three manufacturer class definitions they

proposed satisfied the requirements of Federal Rule of Civil Procedure 23. Because we

find that the district court did not abuse its discretion in declining to certify any of the

proffered manufacturer classes, we affirm.

I.

A.

This case arose out of alleged anticompetitive conduct in the coupon processing

industry. Stated simply, coupon processing is what happens to coupons after they have

been redeemed at grocery stores and other retailers. When a manufacturer issues a coupon,

a consumer may present the coupon to a retailer in exchange for a discount on the purchase

price of the manufacturer’s product. Naturally, retailers want to be reimbursed for the

discount they provide in honoring the coupon. Manufacturers, meanwhile, want to ensure

that they only reimburse retailers for coupons that have been properly redeemed. This is

where coupon processing comes into play. J.A. 854–55.

Traditionally, processing paper coupons involved two additional players beyond

retailers and manufacturers. First, retailers would send the coupons to a “retailer processor”

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to count them and invoice the manufacturer. Next, the coupons would be sent to a

“manufacturer processor” hired by the manufacturer to re-count the coupons and verify the

retailer processor’s invoice. The amount that manufacturers were ultimately asked by

retailers and retailer processors to pay included the face value of the coupons plus

additional processing fees, including shipping fees. J.A. 855–57.

Importantly, because retailers and retailer processors did not contract directly with

manufacturers for coupon processing services, manufacturers were not contractually

obligated to pay shipping fees. Adding another layer of complication, manufacturers

sometimes disagreed with the amounts they were invoiced. When this happened, the

manufacturer might refuse to pay, or “charge back,” part of the invoiced amount. In

response, a retailer could “deduct” chargebacks from what the retailer owed the

manufacturer for the products they purchased. J.A. 856–58, 2055.

B.

The three named plaintiffs in this case are purchasers of coupon processing services.

Mr. Dee’s, Inc. is a manufacturer that issues coupons and purchases coupon processing

services. Retail Marketing Services, Inc. and Connecticut Food Association purchase

coupon processing services on behalf of retailers. Defendants Inmar, Inc. and its subsidiary

Carolina Manufacturer’s Services, Inc. (“CMS”) sell processing services to manufacturers.

Inmar’s subsidiaries Carolina Coupon Clearing, Inc. (“CCC”) and Carolina Services

(collectively “Inmar”) sell processing services to retailers. J.A. 2053–54.

The plaintiffs allege that Inmar entered a horizontal price-fixing agreement with

competitor International Outsourcing Services, LLC (“IOS”) that resulted in higher

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shipping fees. The alleged conspiracy lasted from 2001 until 2007 when certain IOS

personnel were criminally indicted. The antitrust case against Inmar was first brought in

the United States District Court for the Eastern District of Wisconsin in 2008, but

proceedings were stayed to allow resolution of the criminal charges. IOS was eventually

dismissed from the antitrust case after filing for bankruptcy, leaving only the Inmar

defendants. In 2019, the case was transferred to the Middle District of North Carolina. J.A.

2053–56, 2061.

As is typical in the antitrust context, the plaintiffs relied heavily on expert testimony

to make their case. The centerpiece of plaintiffs’ evidence was a report prepared by expert

witness Dr. Kathleen Grace. Dr. Grace used a dataset of fees charged to manufacturers to

calculate a “mean shipping fee payment per 1,000 coupons” for Inmar, IOS, and NCH

(another coupon processor not part of the alleged conspiracy) for each year between 2000

and 2007. J.A. 2057. She then performed regression analyses “to estimate shipping fee

overcharges,” that is, the amounts manufacturers paid above a forecasted competitive

shipping fee. J.A. 2057–60. Dr. Grace also estimated shipping fee overcharges for retailers

that resulted from manufacturers refusing to pay shipping fees. J.A. 2060–61.

Plaintiffs sought certification for two classes, one of manufacturer purchasers of

coupon processing services (which the district court denied) and another of retailer

purchasers (which the district court granted). For simplicity, we focus only on the proffered

manufacturer classes as to which we granted permission to appeal. J.A. 2117, 2119.

The district court denied plaintiffs’ first two motions for class certification without

prejudice. The first was denied after issues arose during discovery. J.A. 2061–62. The

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second sought to certify “a class of manufacturers that directly paid observably higher CCC

or IOS shipping fees during the class period (April 11, 2001 through March 28, 2007),

identified on the list attached to Plaintiffs’ supporting brief at Exhibit 24, Appendix A.”

J.A. 1249. Appendix A was a list of 5,280 manufacturers which Dr. Grace identified as

having “directly paid observably higher CCC or IOS shipping fees during the class period.”

J.A. 1249, 1728–1828. The district court rejected the proposed class as an “impermissible

fail-safe class[] because class membership is conditioned on having suffered antitrust

injury or impact in the form of increased shipping fees.” J.A. 1447.

Plaintiffs’ third motion sought certification of “a class of manufacturers that directly

paid CCC shipping fees during more than 8 different calendar months during the class

period (April 11, 2001 through March 28, 2007) and/or were clients of CMS and directly

paid shipping fees to IOS for at least 2.2 million coupons during the class period” (the

“Limited Payer Class”). J.A. 1452, 2066–67. After a motions hearing, the district court

directed the parties to file additional briefing discussing whether a class could be certified

without the month and volume cutoffs. In response, the plaintiffs added a new potential

class definition: “manufacturers that directly paid CCC shipping fees during the class

period and/or were clients of CMS and directly paid shipping fees to IOS” (the “All Payer

Class”). J.A. 2067. Plaintiffs also proposed that the classes could, alternatively, be defined

simply as the “manufacturers listed in [Appendix A].” J.A. 2097 n.10 (the “Fixed List

Class”).

The district court rejected each of the three proffered manufacturer classes. With

respect to the Fixed List Class, the district court determined that the revised definition

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“mirror[ed] the fail-safe class[]” that it previously refused to certify and “fail[ed] for the

same reason.” Id. Regarding the Limited Payer Class, the district court found that the class

excluded “more than 2,000 manufacturers who were allegedly victims of the same Sherman

Act violation.” J.A. 2073. Because, on the court’s view, the scope of the proposed class

was “untethered from Defendants’ alleged wrongs,” the class failed Rule 23’s implicit

ascertainability requirement. J.A. 2052–53. Finally, the district court rejected the All Payer

Class for failing to satisfy Rule 23(b)(3)’s predominance requirement. The district court

found that of the 7,813 members of the All Payer Class, 2,533 suffered no demonstrable

antitrust injury. Without “expert testimony showing impact and damages to almost a third

of the class,” the district court determined that the plaintiffs had not met their burden to

show that common questions would predominate. J.A. 2089–90, 2104.

Invoking Rule 23(f), the plaintiffs appealed the district court’s denial of certification

of a manufacturer class. This court granted review. J.A. 2119.

II.

We have long recognized that district courts possess “broad discretion in deciding

whether to certify a class.” Lienhart v. Dryvit Sys., Inc.,

, 146 (4th Cir. 2001)

(quoting In re Am. Med. Sys., Inc.,

(6th Cir. 1996)). Accordingly, this

court reviews class certification decisions for abuse of discretion. Gregory v. Finova Cap.

Corp.,

, 190 (4th Cir. 2006). In applying this standard, we are “cognizant of

both the considerable advantages that our district court colleagues possess in managing

complex litigation and the need to afford them some latitude in bringing that expertise to

bear.” Krakauer v. Dish Network, L.L.C.,

(4th Cir. 2019).

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In the class action context, an “abuse of discretion occurs when a district court

‘materially misapplies the requirements of Rule 23.’” Stafford v. Bojangles’ Rests., Inc.,

(4th Cir. 2024) (quoting EQT Prod. Co. v. Adair,

(4th Cir. 2014)). A district court also abuses its discretion when it “clearly errs in its factual

findings.” Thorn v. Jefferson-Pilot Life Ins. Co.,

, 317 (4th Cir. 2006). To find

that the district court clearly erred in the factual findings underlying a certification decision,

we must be “left with the definite and firm conviction that a mistake has been committed.”

Williams v. Martorello,

(4th Cir. 2023) (quoting United States v. Hall,

(4th Cir. 2012)).

Rule 23(a) requires that every class satisfy four basic prerequisites: “numerosity of

parties, common questions of law or fact, typicality of claims or defenses of the

representative parties, and adequacy of representation.” G.T. v. Bd. of Educ. of Cnty. of

Kanawha,

, 202 (4th Cir. 2024). Along with these four explicit requirements,

we have also required every class to satisfy Rule 23’s implicit “ascertainability”

requirement, which precludes certification “unless a court can readily identify the class

members in reference to objective criteria.” EQT Prod. Co.,

.

A class must also “fall within one of the three categories enumerated in Rule 23(b).”

Gunnells v. Healthplan Servs., Inc.,

(4th Cir. 2003). Here, plaintiffs

sought class certification under Rule 23(b)(3). This category of class action “requires a

finding that common questions ‘predominate over’ any individualized questions, and that

‘a class action is superior to other available methods for fairly and efficiently adjudicating

the controversy.’” Stafford, 123 F.4th at 678–79 (quoting Fed. R. Civ. P. 23(b)(3)).

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The Supreme Court has made it clear that “[a] party seeking class certification must

affirmatively demonstrate his compliance” with Rule 23. Wal-Mart Stores, Inc. v. Dukes,

(2011). This is so because the class action device is “an exception to the

usual rule that litigation is conducted by and on behalf of the individual named parties

only.” Comcast Corp. v. Behrend,

(2013) (quoting Califano v. Yamasaki,

, 700–01 (1979)). In this regard, we have emphasized that “the district court

has an independent obligation to perform a ‘rigorous analysis’ to ensure that all of the

prerequisites have been satisfied.” EQT Prod. Co.,

(citation omitted). The

need to perform this rigorous analysis means that a district court may engage in a limited

merits inquiry to ensure that the Rule 23 requirements are met.

III.

Mindful of the standards outlined above, we review the district court’s denial of

each of the proposed classes in turn.

A.

We begin with the court’s rejection of the Fixed List Class. In their third attempt to

certify a class of manufacturer purchasers, the plaintiffs proposed to certify a class of

“manufacturers listed in [Appendix A].” J.A. 2097 n.10. The district court noted that this

definition was identical to the one it had previously considered and rejected but for deletion

of the phrase “that directly paid observably higher CCC or IOS shipping fees during the

class period.”

Because the revised definition referenced the same list of manufacturers

generated from Dr. Grace’s regressions, the district court concluded that this class too was

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an “impermissible fail-safe class[] because class membership is conditioned on having

suffered antitrust injury or impact in the form of increased shipping fees.”

A “fail-safe” class is “defined so that whether a person qualifies as a member

depends on whether the person has a valid claim.” Messner v. Northshore Univ. HealthSys.,

(7th Cir. 2012). In EQT Production Co. v. Adair, we instructed the

district court in a footnote to “consider” on remand whether the classes could be defined

“without creating a fail-safe class.”

n.9. But we have not expressly

recognized an independent prohibition against fail-safe classes as some of our sister circuits

have done. 1

On appeal, the plaintiffs advance several arguments for why the Fixed List Class is

not a fail-safe class. They contend that the class members have been definitively identified

in Appendix A and will remain class members regardless of the merits outcome, and that

merely having paid higher prices, standing alone, would not be sufficient to prove liability

under the Sherman Act. See Opening Brief at 21–22, 29–30. Moreover, they argue that this

court should decline to adopt a prohibition against fail-safe classes that goes beyond the

certification requirements prescribed by Rule 23. See

at 35–36.

1 See, e.g., In re Nexium Antitrust Litig.,

(1st Cir. 2015); Young v. Nationwide Mut. Ins. Co.,

(6th Cir. 2012); McCaster v. Darden Rests., Inc.,

(7th Cir. 2017); Ford v. TD Ameritrade Holding Corp.,

(8th Cir. 2021); Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC,

, 669 n.14 (9th Cir. 2022). But see In re Rodriguez,

(5th Cir. 2012) (rejecting an independent fail-safe class prohibition); In re White,

(D.C. Cir. 2023) (same). 10 USCA4 Appeal: 23-2165 Doc: 64 Filed: 02/12/2025 Pg: 11 of 18

We need not reach the viability of fail-safe classes because the Fixed List Class

suffers from more basic defects under Rule 23. See Cochran v. Morris,

(4th Cir. 1996) (invoking “the well-recognized authority of courts of appeals to uphold

judgments of district courts on alternate grounds”). Fatal to the Fixed List Class is the fact

that it fails to define a class at all. The text of Rule 23 and our cases interpreting the Rule

make clear why “it is insufficient merely to provide a list, however lengthy, of persons said

to be in the class and leave it to the court to devise a class definition.” 1 McLaughlin on

Class Actions § 4:2 (21st ed. 2024).

For one, Rule 23(c) requires the district court to “determine by order whether to

certify” a class action “[a]t an early practicable time after a person sues.” Fed. R. Civ. P.

23(c)(1)(A). And the “order that certifies a class action must define the class.”

Fed. R. Civ. P. 23(c)(1)(B). Where, as here, the party moving for certification merely

submits a list of names, the district court is left with the task of puzzling out the

commonalities that could support a valid class definition. Requiring the district court to

engage in this kind of preliminary legwork is at best in tension with Rule 23’s direction

that a certification order be issued promptly.

More fundamentally, it is the burden of the party seeking class certification, not the

district court’s, “to demonstrate compliance with Rule 23.” EQT Prod. Co.,

. And a plaintiff cannot “affirmatively demonstrate” that the various requirements of

Rule 23 have been met if the proposed class is identified by nothing more than a reference

to a list of names. Wal-Mart,

. We will not unsettle the district court’s denial

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of certification of the Fixed List Class where the plaintiffs have attempted to transfer to the

district court the burden of demonstrating the class’s compliance with Rule 23.

B.

We next turn to the district court’s rejection of the Limited Payer Class. Plaintiffs

moved to certify “a class of manufacturers that directly paid CCC shipping fees during

more than 8 different calendar months during the class period (April 11, 2001 through

March 28, 2007) and/or were clients of CMS and directly paid shipping fees to IOS for at

least 2.2 million coupons during the class period.” J.A. 1452. The district court observed

that the Limited Payer Class was comprised of “3,219 injured manufacturers and 65

uninjured manufacturers” but excluded “more than 2,000 manufacturers who were

allegedly victims of the same Sherman Act violation.” J.A. 2072–73.

The court found that this class failed to satisfy Rule 23’s implicit ascertainability

requirement. We have explained that for a proposed class to be ascertainable, individual

members must be identifiable “in reference to objective criteria.” EQT Prod. Co.,

. At the motions hearing, the plaintiffs contended that the month and volume cutoffs

reflected a “natural breaking point” in the data “above which almost all manufacturers were

injured.” J.A. 2073. The district court reasoned, however, that because “Plaintiffs’ model,

rather than the Defendants’ alleged conspiracy, determines which retailers and

manufacturers receive the benefits of class membership,” the scope of the class was not

objectively determined. J.A. 2073–74. The district court also raised a concern that by

excluding thousands of manufacturers with valid claims, certification of the Limited Payer

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Class would frustrate the class action goal of “avoiding multiple lawsuits.” J.A. 2075

(quoting Fariasantos v. Rosenberg & Assocs., LLC,

(E.D. Va. 2014)).

The district court did not abuse its discretion in declining to certify the Limited

Payer Class. An essential purpose of any class action is to redress an injury. If the criteria

for class membership bear little relationship to the defendants’ conduct, then the class

definition is untethered from the purpose of employing the class action procedure in the

first instance. Here, the fact that more than 2,000 manufacturers—39% of those identified

as having paid observably higher shipping fees—were excluded by the date and volume

cutoffs demonstrates that the Limited Payer Class definition is untethered from the

plaintiffs’ own evidence of harm.

By the same token, excising such a large share of potential claimants from the

proposed class raises a superiority problem. Certification under Rule 23(b)(3) requires that

the class action mechanism be “superior to other available methods for fairly and efficiently

adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Because the Limited Payer Class

cutoffs exclude thousands of manufacturers purporting to show the same harm as the

included class members, certifying such an incomplete class might expose defendants to a

continued trickle of individual lawsuits and thereby impair the efficiency goal which is a

key purpose of the class action mechanism.

To be sure, we do not mean to suggest that a plaintiff must necessarily prove that a

class action would be the “best” method for adjudicating a controversy before a class may

be certified. See Krakauer,

(observing that because “claims aggregated

under Rule 23(b)(3) can be resolved without the class mechanism,” predominance and

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superiority “ensure that a class action is only used when it makes sense”). We find only

that, under the standard of review and the circumstances present here, it was not an abuse

of discretion for the district court to conclude that the Limited Payer Class cutoffs rendered

certification inappropriate.

C.

Finally, we consider the district court’s rejection of the All Payer Class. That class

was defined as “manufacturers that directly paid CCC shipping fees during the class period

and/or were clients of CMS and directly paid shipping fees to IOS.” J.A. 2067. The district

court found that the All Payer Class could not satisfy Rule 23(b)(3)’s predominance

requirement because Dr. Grace’s regressions did not show impact for 2,533 (32%) of the

7,813 class members, and the plaintiffs “fail[ed] to proffer additional evidence that all

manufacturers in the class suffered antitrust impact and damages.” J.A. 2089.

The plaintiffs raise two primary challenges to this conclusion. First, they argue that

the district court erred in finding as a matter of fact that 32% of the members of the All

Payer Class were uninjured. Opening Brief at 50. Second, they contend that nothing in Rule

23 permits the district court to deny certification to a class because of a high share of

uninjured class members.

at 52–53.

We disagree on both counts. When it comes to the share of class members lacking

evidence of injury, we are hardly “left with the definite and firm conviction that a mistake

has been committed.” Williams,

(quoting Hall,

). 2 Plaintiffs

2 Although the Supreme Court has indicated that a district court’s determination of whether an econometric model is capable of proving antitrust damages is a legal finding rather than 14 USCA4 Appeal: 23-2165 Doc: 64 Filed: 02/12/2025 Pg: 15 of 18

concede that according to the model prepared by Dr. Grace, the plaintiffs’ only expert

witness, “there were no observable price increases during the conspiracy period” for 32%

of the All Payer Class. Opening Brief at 50. Given that the plaintiffs “lack expert testimony

showing impact and damages” for almost a third of class members, it was not clearly

erroneous for the district court to conclude that that portion of the class was uninjured. J.A.

2104, 2089. Nor did the district court err in declining to infer harm for this segment of the

class from evidence of market-wide harm, “including record evidence, admissions, [and]

market characteristics.” Reply Brief at 24. The district court carefully considered these

arguments and explained why they were insufficient to support an inference of injury for

the 32% of class members that could not demonstrate harm using Dr. Grace’s regressions.

See J.A. 2104–11.

The district court did not abuse its discretion in finding that the high share of class

members with no demonstrable injury presented a predominance problem. Rule 23(b)(3)

requires that “questions of law or fact common to class members predominate over any

questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). We cannot

conclude that the district court erred in finding that common questions of injury and

damages would not predominate where the plaintiffs’ only expert witness failed to show

harm for nearly one-third of the class. See Stafford,

(finding that “no

a finding of fact, see Comcast,

n.5, this is distinct from the discrete finding that the “All Payer Manufacturer class contains 2,533 uninjured members.” J.A. 2095. Nor does either party dispute that this is a factual finding. 15 USCA4 Appeal: 23-2165 Doc: 64 Filed: 02/12/2025 Pg: 16 of 18

question of law or fact is common” to class members who “may lack” the very claims at

the heart of the plaintiffs’ proposed class definitions).

And even among the class members that arguably did show injury, the

circumstances surrounding the payment of shipping fees varied substantially. Because, as

the district court noted, manufacturers were not contractually obligated to pay shipping

fees, J.A. 2055, the fees that manufacturers paid depended on company-specific policies.

J.A. 1387–88 (declaration of Inmar president Robert Carter) (stating that “payments were

made (or not made) according to written policies set by the manufacturers” and describing

individual agreements between CMS and certain large retailer customers to cap shipping

fees). Given the disparate payment decisions of manufacturers during the class period, the

district court was within its discretion to find class treatment inappropriate under the

circumstances presented here.

Finally, we note that attempting to define a class with such a high share of uninjured

members also raises Article III standing concerns. Going as they do to the existence of

judicial authority, such concerns are not to be ignored. In TransUnion LLC v. Ramirez, the

Supreme Court held that “every class member must have Article III standing in order to

recover individual damages.”

(2021). But the Court left open “the

distinct question whether every class member must demonstrate standing before a court

certifies a class.”

at 431 n.4; see Lab’y Corp. of Am. v. Davis, No. 24-304,

, at *1 (U.S. Jan. 24, 2025) (mem.) (granting certiorari to resolve “[w]hether a

federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3)

when some members of the proposed class lack any Article III injury”).

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Our circuit has also underscored the importance of standing concerns in class action

litigation. See Alig v. Rocket Mortg., LLC, --- F.4th. ---,

, at *6–7 (4th Cir.

Jan. 23, 2025). Some of our sister circuits have addressed the issue of class member

standing in conjunction with the requirements of Rule 23. See, e.g., Green-Cooper v.

Brinker Int’l, Inc.,

(11th Cir. 2023) (emphasizing the importance of Rule

23’s predominance requirement post-TransUnion “because a district court must ultimately

weed out plaintiffs who do not have Article III standing before damages are awarded to a

class”). Whatever the resolution of the question posed in Laboratory Corp., the presence

of 32% of uninjured members in a proposed class strikes us as much too high. Just as the

question of under-inclusiveness was not a marginal one with respect to the Limited Payer

Class, so too the question of over-inclusiveness for the All Payer Class is not a close call.

In view of both the predominance and standing issues, it was not an abuse of discretion for

the district court to decline to certify the All Payer Class.

IV.

A class action is a compromise between opposing forces of individuality and

commonality. Because this procedural mechanism is an exception to the usual practice of

litigating cases for named parties only, a party seeking class certification must make a

positive showing that common issues will rule the day. The need for common issues to

predominate is an explicit and indispensable requirement for classes certified under Rule

23(b)(3) and underscores the issues with certifying the manufacturer classes proposed here.

We note in conclusion that manufacturers can propose antitrust class actions that

avoid the certification pitfalls delineated above. We are bound in this case, however, to

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address the particular classes that the plaintiffs proposed and that the district court

addressed and rejected. Under the circumstances, we cannot fault the trial court for its

decision. In view of the latitude afforded district courts in making class certification

rulings, we cannot rightly overturn what the district court did here as an abuse of discretion.

Accordingly, its judgment is hereby affirmed.

AFFIRMED

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