Judge denies Florida Cement and Concrete Antitrust plaintiffs class certification

Sources: U.S. District Court for the Southern District of Florida, Miami; CP staff

By Don Marsh

An early-January ruling stands to significantly increase costs and complicate litigation burdens for In Re Florida Cement and Concrete Antitrust Litigation plaintiffs. Greatly streamlined from initial claims of a five-year scope and 10-defendant pool, the two-year-old case alleges a 2008–2009 concrete price-fixing conspiracy among Cemex Inc., Florida Rock Industries, VCNA Prestige Ready-Mix Florida Inc., and Tarmac America LLC.

District Court Judge Cecilia Altonaga denied motions to certify as class actions suits for two groups of plaintiffs, Direct Purchaser and Indirect Purchaser, spanning independent ready mixed producers, small contractors and their customers. Her findings partly reflect concurrence with the report of an economic and antitrust expert defendants retained to counter plaintiffs’ product and pricing uniformity claims in their class certification pursuit. Additionally, some depositions showed how contractors had not paid for concrete at levels consistent with price increases—up to $25/yard—defendants had announced in 2008.

“Evidence indicates that both the volume purchased by customers and the length of the sales relationship between a supplier and customer have an impact on the prices paid for Concrete,” writes Judge Altonaga. The analysis of defendants’ economic and antitrust expert, she adds, “demonstrates that the price increase announcements were particularly irrelevant to large-volume purchasers of Concrete.”

“Class certification is a critical point in any class action lawsuit because the manner in which the court certifies the class has a large impact on how the matter will proceed,” says Andrew Friedman, a partner in the Antitrust Competition Policy and Trade Regulation practice of Patton Boggs LLP, Washington, D.C. “Denial of class certification is generally considered a major win for the defense because it effectively ends the class action and places plaintiffs in a position to litigate their claims individually.”

“Class actions have benefits for plaintiffs,” he adds. “They help streamline costs to plaintiffs’ counsel by consolidating evidentiary matters for what may be hundreds of individual claims. Also, if most individual plaintiffs do not have large dollar claims, class actions can help attract counsel when individual claims do not carry much incentive for plaintiffs’ lawyers, particularly when faced with a large corporate defendant.”

Following the class certification denial, Judge Altonaga stayed all proceedings in the case, and set a sequence of January deadlines for filings that would enable plaintiffs’ counsel to seek a review of her order in Eleventh Circuit Court of Appeals.