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Full Opinion
STATEMENT OF FACTS
Named plaintiffs in the present suit have moved the Court to certify the suit as a class action under Fed.R.Civ.P. 23(bX3). Plaintiffs are fourteen mortgagors
The crux of plaintiffsâ complaint is that the periodic installments are placed into âescrow accountsâ which are put to profitable use by the mortgagees for their own benefit without either paying interest on the escrow accounts or âcapitalizingâ the payments to reduce the outstanding principle of the loan itself. They assert the above practices are concerted and violate the antitrust laws as a part of an ongoing conspiracy originating in the 1960âs to eliminate the âcapitalizationâ method of accounting for mortgage escrow payments, that the effect of this conspiracy has been a less competitive market in which mortgage loans with escrow payments subject to âcapitalizationâ are unobtainable and, that plaintiffs have been and continue to be injured thereby.
The thirty eight original defendants
The present suit is one of several similar suits that have been filed in various State and federal courts throughout the nation. Plaintiffs in the present suit apparently learned of these suits, and the possibility of their own action, through the activities of counsel at a meeting or meetings of their labor union. Subsequently, they each signed authorizations for the present suit to proceed and acknowledged liability in the amount of up to $5,000 for potential costs. Apart from these actions, named plaintiffs have played a minimal role in the furtherance of the suit and have demonstrated only a minimal knowledge of its nature.
The remaining claims before the Court arise under Section Four of the Clayton Antitrust Act, 15 U.S.C. § 15, Section One of the Sherman Antitrust Act, 15 U.S.C. § 1 and under the Virginia Anti-trust Act, Va. Code § 59.1-9.1, et seq. (Repl.Vol.1973). Jurisdiction over the federal claims is vested in the Court pursuant to 28 U.S.C. § 1337; the State claims fall within the courtâs pendant jurisdiction. United States Mineworkers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Venue is properly set in this judicial district, 28 U.S.C. § 1391(b).
In its order of 4 September 1979, the Court addressed and denied plaintiffsâ motion for certification of the plaintiff class pursuant to Fed.R.Civ.P. 23(b)(2) and continued under advisement plaintiffsâ motion for certification of the plaintiff class pursuant to Fed.R.Civ.P. 23(b)(3).
I.
A party moving the Court to certify a suit as a class action must satisfy the several conditions set out in Fed.R.Civ.P. 23, which states in pertinent part:
(a) âPrerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claim or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) âClass Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of the members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or unde*37 sirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
The moving party is charged with the burden of satisfying both the âprerequisitesâ to a class action of subdivision (a) and, the âpredominanceâ and âsuperiorityâ criteria of subdivision (b). Whether the burden has been met is left to the trial courtâs discretion and will be reversed only for abuse. Windham v. American Brands, Inc., 565 F.2d 59, 64 (4th Cir. 1977) (en banc) cert. denied, 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978); Doctor v. Seaboard Coast Line R. Co., 540 F.2d 699 (4th Cir. 1976). The Court, in its determination of whether to certify the class, is bound to take the substantive allegations of the complaint as true. But while the court may not put the plaintiff to preliminary proof of his claims, it may require such supplements to the pleadings to allow an informed judgment on each of the Rule's requirements. Doctor v. Seaboard Coast Line R. Co., supra, at 708; Blackie v. Barrack, 524 F.2d 891, 900-01 (9th Cir. 1975) cert. denied 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). It may also look beyond the pleadings, may permit discovery relating to issues involved in maintainability and, may schedule a preliminary evidentiary hearing to assist in determining âwhether [the moving party] is asserting a claim which, assuming its merit, will satisfy the requirements of Rule 23.â Doctor v. Seaboard Coast Line R. Co., supra, at 707 (emphasis in original); Windham v. American Brands, Inc., supra. The Court is proscribed, however, from conducting any preliminary inquiry into the merits of the suit. Eisen v. Carlisle, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Doctor v. Seaboard Coastline Ry. Co., supra; Pruitt v. Allied Chemical Corp., 85 F.R.D. 100 (E.D.Va. 1980).
Similarly, as this Court has previously recognized, the certification stage is an inappropriate time to make any determination as to plaintiffsâ standing to represent the putative class. Turner v. A.B. Carter, Inc., 85 F.R.D. 360 (E.D.Va.), revâd on other grounds sub nom. Coles v. Havens Realty Corp., 633 F.2d 384 (4th Cir. 1980). See generally, 4 H. Newberg on Class Actions § 7518(d) (1977) (hereafter H. Newberg).
II.
A party moving for class certification under Rule 23(b)(3) must first satisfy the prerequisites to class certification set out in subdivision (a) of Rule 23.
1. Numerosity: Rule 23(a)(1) :
Rule 23(a)(1) allows for a class action only where the class is so numerous that joinder of all members would be impracticable. As plaintiffs assert the class to number âat least several thousandâ and the defendants refer to a potential class of 200,-000, this requirement has been satisfied. 4 H. Newberg, supra, at § 7512.
2. Common Questions of Law or Fact: Rule 23(a)(2):
The second prerequisite of Rule 23(a) is that there be either a question of law or fact common to members of the class. This requirement, less stringent than the âpredominanceâ requirement of Rule 23(b)(3), necessitates a showing only that there is a common question of law or fact which need not be dispositive of the case. Moreover, the existence of individual issues
The claims in the present suit all relate to an alleged conspiracy on the part of defendants to monopolize and restrict competition on the mortgage market. Plaintiffsâ allegations appear sufficient to satisfy this element. See e. g., Sommers v. Abraham Lincoln Federal Savings & Loan Assoc., 66 F.R.D. 581 (E.D.Pa.1975) (finding condition satisfied in a similar escrow case). Individual questions as to liability and damages which may subsequently preclude the use of the class action device do not defeat the applicability of Rule 23 at this stage.
3. Typicality: Rule 23(a)(3) :
In Turner v. A.B. Carter, Inc., supra, this Court set out the several factors it considers in addressing the issue of typicality:
In considering whether the typicality requirement has been met, the emphasis of the Courtâs examination is on a square alignment with the class representativeâs interests with the interests of the class. Although a plaintiffâs claim will be considered typical if it âarises from the same event or practice or course of conduct that gives rise to the claims of other class members, and his or her claims are based on the same legal theory,â Rule 23(a)(3) typicality may âscreen out class actions [or class representation] when the legal or factual position of the representatives is markedly different from that of other members, even though common issues of law or fact are raised.â
Id. at 364 (citations omitted). However, typicality refers to the nature of the claims of the class representative and not necessarily to the specific facts from which the case arose. See Minnesota v. United States Steel Corporation, 44 F.R.D. 559 (D.Minn. 1968); 4 H. Newberg, supra, at § 7518. Where the class representativesâ claims are such that they will have to prove the same elements as the remainder of the class, then typicality should be found notwithstanding factual differences between various members of the class. Id.
The defendants assert that plaintiffsâ claims are not typical of the class as to those defendants with whom they had no dealings. The defendants rely extensively on the case of La Mar v. H&B Novelty & Loan Co., 489 F.2d 461 (9th Cir. 1973). In La Mar, a consolidated case, the court sought to resolve whether a single plaintiff with a cause of action against a single defendant could institute a class action against that defendant and an unrelated group of defendants who had engaged in similar conduct to that of the single defendant, on behalf of all those injured by all the defendants. In holding the plaintiff could not bring such an action, the court stated:
Under proper circumstances, the plaintiff may represent all those suffering an injury similar to his own inflicted by the defendant responsible for the plaintiffâs injury, but in our view he cannot represent those having causes of action against other defendants against whom the plaintiff has no cause of action and from whose hands he suffered no injury. Id. at 462.
In its consideration of typicality, the court emphasized that just as that requirement was not met when the representative plaintiff lacked a claim of any type against any defendant, the action would also fail where a plaintiffâs cause of action, though similar to that of other class members, is against a defendant with respect to whom the class members had no cause of action.
In West v. Capitol Fed. S. & L. Assn., supra, where the facts are similar to those in the present case, the court relied on La Mar in concluding that .although plaintiffs asserted a conspiracy between the defendants the gist of the action was the damages sustained and not the conspiracy, and that plaintiffsâ claims as to injuries and damages could not be typical of those defendants with whom they did not deal.
The defendants look to the ruling by the Fourth Circuit Court of Appeals in Windham v. American Brands, Inc., supra, that the gravamen of an antitrust suit such as this is not the common issue of conspiracy but individual issues, pertaining to injury, and its applicability to the present suit as support for the conclusion of the West court. Defendants assert that the complaint here is for individual injury and not conspiracy and therefore, the La Mar exception is inapplicable and the typicality requirement is not met.
Generally, the sort of argument raised here by defendants is directed at the representativeâs standing or the adequacy of his representation of the class, rather than typicality.
[The defendantâs position] is that a plaintiff who is a customer of defendant A cannot have typical claims against defendant B with whom he has no dealings, even though A and B have injured their customers by nearly identical conduct. This principal is enunciated in La Mar v. H.B. Novelty & Loan Co., 489 F.2d 461, 465-66 (9th Cir. 1973). . . .
The distinction between this case and the cases in La Mar is that the plaintiffs here allege a nationwide conspiracy to restrain trade. The La Mar decision specifically excepted the case of a conspiracy.from its holding that a plaintiff who did not have actual dealings with a class defendant could not be an adequate representative. Ibid, at 466. While the conspiracy exception was discussed in the context of adequacy of representation, 23(a)(4), this Court believes that it is equally applicable to typicality of claims, 23(a)(3).
Moreover, the La Mar exception does not require the gravamen of a suit be conspiracy but merely that the injuries in the suit are the result of a conspiracy or concerted scheme between the defendants, at whose hands the class suffered injury. La Mar v. H&B Novelty & Loan Co., supra, at 466. Accordingly, the reasoning in West appears to be incorrect and in any case there are other cases also similar to our facts which hold to the contrary. See e. g., Sommers v. Abraham Lincoln Fed. S. & L. Assoc., supra; Stavrides v. Mellon Natâl Bank, 69
In the present suit, the putative representatives assert that the entire class has suffered injury resulting from the alleged concerted practices. They will have to prove essentially the same facts as to the existence, implementation and consequences of the conspiracy for each member of the putative class. Such individual proofs as will be required to establish injury and damages are related to factual differences which may affect the predominance issue under 23(b). They do not relate to the typicality of the representativesâ claims, however, as contemplated under Rule 23(a)(3). State of Minnesota v. United States Steel Corp., 44 F.R.D. 559, 567 (D.Minn.1968).
4. Fair and Adequate Representation: Rule 23(a)(4):
The two requirements of 23(a)(4) are the absence of potential conflicts between the representatives and other members of the class and assurances that the case will be prosecuted vigorously. See 4 H. Newberg, supra, at § 7518 et seq. In Turner v. A.B. Carter, Inc., supra, this Court utilized a two-pronged test: (1) â[Plaintiffâs attorney must be professionally competent to conduct the particular litigationâ; and (2) âthe interests of the representative must neither be in conflict with nor antagonistic to those of the class as a whole.â The Court continued stating:
The antagonism between the representative party and the class which must be present before the certification will be denied is that which goes to the âsubject matter of the suit.â 5 H. Newberg, supra, at § 8675D p. 548 (citations omitted). To ensure the absence of such conflict between the class and the representative, the âclass representative must be part of the class and âpossess the same interest and suffer the same injuryâ as class members.â Further, a representative partyâs claim should be co-extensive with those claims of the class he seeks to represent; this ensures the vigorous prosecution of the action by the representative which is implicit within the concept of Rule 23(a)(4) adequacy of representation. Id. at 364 (citations omitted). See generally, 4 H. Newberg, supra, at § 7578.8
The vigorous prosecution test is generally satisfied upon the courtâs determination that the plaintiffâs attorney is professionally competent to conduct the particular litigation. Such is the standard in this Court As to the present case, this Court has previously recognized that plaintiffsâ counsel have vigorously advocated the plaintiffsâ case. Brown v. Cameron-Brown Co., CA No. 78-0836-A-R at 17 (E.D.Va., 13 June 1980) (memorandum) and there is support from other courts that plaintiffsâ counsel are competent. See e. g., Sommers v. Abraham Lincoln Fed. S. & L. Assn., supra, at 589.
The second element of the test appears also to be satisfied. The issues which are similar to those raised by defendants under the issue of typicality can be resolved by the rationale as applied there.
The defendants urge additionally, however, that plaintiff representatives are incapable of adequately representing the class as they not only fail to grasp the nuances of antitrust law but âhave no notion of how they have allegedly been harmed or by whom.â Def. Br. in Opp. to Cl. Cert., at 49. As such, defendants assert, they are but âstrawmenâ called in to support their lawyersâ suit and, the class is left with blind reliance on counsel by uninterested and inexperienced representatives. See Seidin v. Nicholson, 69 F.R.D. 681, 688 (N.D.Ill.1976). See also Levine v. Berg, 77 Civ. 5467 (S.D.N.Y. June 9, 1978) (denying certification, in part, due to plaintiffâs lack of personal knowledge of and unwillingness to learn about the facts upon which the case was based, and the undue emphasis she had placed on her attorneyâs ability to investigate and prosecute the suit, such that the only aid plaintiff rendered counsel was her willingness to act on behalf of her class and bear whatever costs such action might entail.)
Notwithstanding defendantsâ vigorous argument, and plaintiffsâ limited involvement in the case, plaintiffs evidence a minimal knowledge and interest in the suit and they have acknowledged liability for costs, at least up to $5,000. The plaintiffs know their bank uses the escrowed funds without paying interest on it and they have severally cooperated in discovery. This Court has previously recognized in this case that a layperson can provide only minimal assistance to advise and guide his lawyer through the intricacies of a large anti-trust suit such as this. Brown v. Cameron-Brown, supra, at 17. Presumably, then, plaintiffs can be expected to rely heavily on their attorneys, and the award of attorneysâ fees supports the important role that attorneys play in such cases. See e. g., Dolgow v. Anderson, supra. See also Wolfson v. Artisans Savings Bank, 83 F.R.D. 547, 550 (D.Del.1979) (bank escrow case wherein court rejected argument raised by defendants in this case). Moreover, the Supreme Court has evidenced particular leniency as to the amount of knowledge a plaintiff needs to have about the claim which is being brought. See Surowitz v. Hilton, 383 U.S. 363, 86 S.Ct. 845, 15 L.Ed.2d 807 (1968).
In sum, plaintiffs satisfy each of the four prerequisites necessary to justify consideration of the class action device in the present case. Before the Court can certify the class, however, plaintiffs must additionally satisfy the Court that they come within the requirements set out in 23(b)(3).
III.
Plaintiffsâ burden under 23(b)(3) is to assure the Court that use of the class action device will achieve the economies of time, effort and expense contemplated by the Rule, without sacrificing procedural fairness or bringing about other undesirable results. Fed.R.Civ.P. 23 (Advisory Notes). Subdivision (b)(3) contemplates a dual test: First, questions of law or fact common to the members of the class must predominate over questions affecting individual members; and, second, the court must be satisfied that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The rule also suggests a non-exhaustive list of four factors that the court is to consider in making its determination.
1. Predominance of Common Questions
The issue of predominance is often treated by the courts in conjunction with their 23(a)(2) analysis. The focus of the 23(b)(3) requirement, however, is different. Whereas (a)(2) addresses the issue of whether Rule 23 has any applicability at all
Professor Moore suggests that the predominance analysis involves two stages, not necessarily distinguished in practice. He states:
Once the threshold determination has been made that common questions predominate sufficiently to support overall class treatment, [2] the predominance criterion acts as a guide to the judge in molding and defining the action. At this juncture the standard assumes its more pragmatic aspect, as a test whether potential subclasses or other subdivisions can be useful. Here it is appropriate to consider simply the degree to which the common questions may be decisive of the issues to be dealt with in the separate phases of the action, in order to judge the efficiency of the arrangement. 3 B Mooreâs Federal Practice, supra ¶ 23.45[2] at 23-333.
This view comports with the fact that courts tend to approach the problem of predominance, in both the antitrust and the related securities frauds fields, from a perspective of âthe severability of the issues of liability and damages â whether the asserted statutory violations can be effectively adjudicated in a class proceeding independent from the proceeding in which individual damages would be assessed.â 3B Mooreâs Federal Practice ¶ 23.45[2] at 23-335. Damages always require individual proofs and the crucial element in a courtâs analysis will be whether the âliabilityâ issues (discussed below) are so closely linked to the âdamageâ issue that severability is not practicable.
Courts, in their consideration of this issue, have generally rejected quantitative tests comparing the amount of time and attention required to settle the common questions with that needed for the resolution of individual issues, Sommers v. Abraham Lincoln Fed. S. & L. Assoc., supra, at 591; Minnesota v. United States Steel Corp., 44 F.R.D. 559, 569 (D.Minn.1968); 3B Mooreâs Federal Practice, supra, ¶ 23.45[2], although such considerations are relevant during the courtâs analysis of the superiority issue.
Private antitrust actions, though usually brought under (b)(3), are accorded no presumption on the issue of predominance. See Windham v. American Brands, Inc., supra, at 64 n. 6; 3B Mooreâs Federal Practice, supra, ¶ 23.45[2]; Fed.R.Civ.P. 23 (Advisory Notes). Courts are in agreement that a plaintiff in such an action must prove three elements to succeed: (1) violation of the antitrust laws; (2) direct injury to the plaintiff from each violation; and (3) damages sustained by the plaintiff. Windham v. American Brands, Inc., supra, at 65; Alabama v. Bluebird Body Co., Inc., 573 F.2d
The several circuits have taken different approaches in addressing the class certification issue under 23(b) with the Fourth Circuit following a more restrictive approach. Compare Windham v. American Brands, Inc., supra, with Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977) cert. denied 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978) (criticized in Windham). The Fourth Circuit Court of Appeals focused considerable attention on the certification of class actions in Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir. 1977) (en banc), cert. denied 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978). Windham involved a suit by tobacco growers against several tobacco purchasing companies and others charging various antitrust violations as to the marketing and auction process for tobacco. The district court, after allowing full discovery on the class certification issue, denied certification primarily on the grounds that the action would become unmanageable, because of the complexity of proof of injury and damage. Windham v. American Brands, Inc., 68 F.R.D. 641, 655-56 (D.S.C. 1975) revâd 539 F.2d 1016 (4th Cir. 1976) (panel), revâd 565 F.2d 59 (4th Cir. 1977) (en banc) cert. denied 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978). The district court in Windham, however, was confronted by a morass of intertwined claims of conspiracy violations, individual claims of injury and damages which varied between plaintiffs as to nature and number of claims and their geographical and temporal involvement in several markets. The district court considered the possibility of severance and bifurcation but found such a procedure to be unhelpful under the particular facts. The court concluded that, upon consideration of the overwhelming nature of the individual claims and their complexity, individual issues relating to the fact of injury and damages predominated over the common issue of violation and, the class action would not be a superior remedy in such a case.
On appeal to the Fourth Circuit Court of Appeals, a panel of that court reversed the trial courtâs decision. Windham v. American Brands, Inc., 539 F.2d 1016 (4th Cir. 1976), revâd 565 F.2d 59 (4th Cir.) (en banc) cert. denied 438 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978). The panel interpreted the underlying principles of antitrust actions as indicating a general policy to aid those who were injured by violations of the antitrust laws and evidencing congressional sympathy towards the usually small enterprise confronting the ordinarily large malefactor. The court stated there was almost a ârebuttable presumptionâ that a class action should be allowed where there is a plausible claim of violation of the Sherman Act. Id. at 1021.
The panel, addressing the facts, noted that an overly comprehensive use of the term âliabilityâ had clouded the district courtâs ability to draw a sharp distinction between issues as to the alleged violations of antitrust laws and issues of causation. Id. at 1020. The panel suggested that notwithstanding the difficulty faced by plaintiffs in succeeding with their cause of action, the court should address initially the issues of antitrust violations which should not be rendered unmanageable because of the numerosity of the plaintiff class. The panel believed that if the district court bifurcated the trial, initially addressing the antitrust violation, it could limit the amount of evidence intertwined with other aspects of the case. If the plaintiffs failed at this stage the case would end whereas if successful the court could dispose of the injury and damage issues either in a mass trial with appropriate subclassifications or in individual trials.
The panel opinion, in turn, was reversed and the district courtâs decision affirmed by an en banc panel of the Fourth Circuit. Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir. 1977) cert. denied 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978). In sum, the court agreed with the district
As to the issue of common questions, the court stressed that the gravamen of a private antitrust suit for damages is the individual injury suffered by each plaintiff, and not the conspiracy itself. After setting out the three elements of an antitrust action the court stated:
It follows, therefore, that a mere finding of violation does not result in liability. The statute gives a right of action only to the extent that one has been âinjured in. his business or property by reason of anything forbidden in the anti-trust laws.â The gravamen of the complaint is not the conspiracy; the crux of the action is injury, individual injury. While a case may present a common question of violation, the issues of injury and damage remain the critical issues in such a case and are always strictly individualized.
565 F.2d at 65-66 (footnotes omitted). Moreover, in their proofs, plaintiffs would be proscribed from presenting generalized or class-wide proof of damages.
A. Violation
There is general agreement that a conspiracy allegation as to violation of the antitrust laws involves common questions as to the class and plaintiffsâ proof in this action will generally be the same as to all defendants. See Windham v. American Brands, Inc., supra; Philadelphia v. American Oil Co., 53 F.R.D. 45, 67-68 (D.N.J. 1971). See generally, 4 H. Newberg, supra, § 7524.
B. Fact of Injury or Impact
In numerous cases where certification has been questioned on the predominance issue, the courtâs resolution of the issue of liability usually has been the determining factor as to whether certification will be granted. Generally, where a court finds liability to be a question common to the class it holds 23(b)(3) satisfied. See 4 H. Newberg, supra § 7524(a) (and cases cited therein).
The confusion which often arises over the issue of liability results from a failure to distinguish between two of its elements; violation on the one hand and causation on the other. See Windham v. American Brands, Inc., 539 F.2d 1016, 1021-22. The latter element is generally referred to as the issue of âfact of injuryâ or âimpact.â In cases of per se violations, such as price fixing, courts have readily held the causation issue to be common to the class, see 4 H. Newberg, supra § 7524(a) at 38 n.296, or where they have held causation to be an individualized issue, have resolved it together with the issue of damages; the (b)(3) predominance requirement is then met if other liability issues are common to the class. See e. g., City of New York v. General Motors Corp., 60 F.R.D. 393 (S.D.N.Y. 1973), appeal dismissed as to class cert. 501 F.2d 639 (2d Cir. 1974) (monopolization). See generally 4 H. Newberg, supra, § 7524(a). Other courts, however, in holding that the impact issue is an individualized issue have relied in part on that determination to deny certification. See Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir. 1977) cert. denied 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978); Shumate & Co., Inc. v. National Assoc. of Securities Dealers, Inc., 17 F.R.Serv.2d 300 (N.D. Tex. 1973), affâd 509 F.2d 147 (5th Cir. 1975); Gneiting v. Tagarrer 17 F.R.Serv.2d 311 (D. Idaho 1973).
As a practical matter, where plaintiffs have been affected by a concerted practice effecting a common course of conduct, the proofs necessary to establish âthe fact of injuryâ or âimpactâ will be essentially the same for each member of the class notwithstanding the rule that such an issue is individual to each plaintiff. As to the present case, proof as to the existence, implementation and effect of the alleged conspiracy appear to be the same for each class member. Accordingly, the evidence necessary to prove liability of the defendants, /. e., violation and impact, would appear to be sufficiently similar as to all members of the class to permit resolution within the class action process.
C. Damages
In Windham, the court ruled that damages are strictly an individual question and