Hammer v. Clear Channel Commc'ns, Inc. (In re Live Concert Antitrust Litig.)

863 F.Supp.2d 966

In re LIVE CONCERT ANTITRUST LITIGATION. This Document Relates to: Lauren J. Hammer V. Clear Channel Communications, Inc. et al., 2:06–CV–04987 SVW (VBK) Margaret A. Thompson V. Clear Channel Communications, Inc. et al., 2:05–CV–06704 SVW (VBK).

Case No. 06–ML–1745–SVW (VBK).

United States District Court, C.D. California.

March 23, 2012.

Elaine T. Byszewski, Lee M. Gordon, Leo D. Caseria, Hagens Berman LLP, Los Angeles, CA, George W. Sampson, Steve W. Berman, Tyler S. Weaver, Hagens Berman Sobol Shapiro LLP, Seattle, WA, Jennifer Fountain Connolly, Hagens Berman Sobol Shapiro LLP, Washington, DC, Kenneth A Wexler, Wexler Wallace LLP, Chicago, IL, Timothy N. Mathews, Chimicles & Tikellis LLP, Haverford, PA, Elizabeth A. Fegan, Hagens Berman Sobol Shapiro LLP, Oak Park, IL, Mark R. Miller, for Plaintiffs.

Chul Pak, Jonathan M. Jacobson, Lucy Yen, Wilson Sonsini Goodrich & Rosati, New York, NY, Leo D. Caseria, Heller Ehrman, Theodore J. Boutrous, Jr., Steven E. Sletten, Gibson Dunn & Crutcher LLP, Harvey I. Saferstein, Nada I. Shamonki, Sarah Jane Robertson, Mintz Levin Cohn Ferris Glovsky and Popeo PC, Los Angeles, CA, Colleen Bal, Wilson Sonsini Goodrich & Rosati, San Francisco, CA, for Defendant.

Daniel J. Kurowski, Elizabeth A. Fegan, Hagens Berman Sobol Shapiro LLP, Oak Park, IL, Hollis L. Salzman, Labaton Sucharow LLP, Jonathan M. Jacobson, Wilson Sonsini Goodrich and Rosati, Lee Squitieri, Squitieri and Fearon LLP, New York, NY, Jeffrey L. Kodroff, E. Kopp, Spector Roseman & Kodroff, Philadelphia, PA, Jennifer Fountain Connolly, Hagens Berman Sobol Shapiro LLP, Renata Hesse, Wilson Sonsini Goodrich and Rosati, Washington, DC, Joseph G. Sauder, Nicholas E. Chimicles, Timothy N. Mathews, Kimberly M. Donaldson, Chimicles & Tikellis, Haverford, PA, Lance August Harke, Harke Clasby & Bushman LLP, Miami Shores, FL, Lee M. Gordon, Hagens Berman Sobol Shapiro LLP, Pasadena, CA, Mark R. Miller, Wexler Wallace LLP, Chicago, IL, Colleen Bal, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA, for Live Concert Antitrust Litigation.

ORDER RE:

DEFENDANTS' MOTION TO EXCLUDE TESTIMONY OF DR. OWEN R. PHILLIPS [403]

DEFENDANTS' MOTION FOR CLASS DECERTIFICATION [410]

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DENVER ACTION) [438]

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (LOS ANGELES ACTION) [441]

PLAINTIFFS' MOTION FOR APPROVAL OF PLAN FOR CLASS NOTICE, TO ORDER DEFENDANTS TO PRODUCE CLASS MEMBER INFORMATION, AND TO MODIFY THE CLASS DEFINITION [460]

PLAINTIFFS' MOTION TO EXCLUDE THE “AFFINITY ANALYSIS” OF DR. JANUSZ ORDOVER [469]

PLAINTIFFS' MOTION TO STRIKE DECLARATION OF JULIA VANDER PLOEG [516]

STEPHEN V. WILSON, District Judge.

I. INTRODUCTION AND PROCEDURAL BACKGROUND¹

On June 13, 2002, Malinda Heerwagen filed a putative class action in the United States District Court for the Southern District of New York, alleging claims of monopolization, attempted monopolization, and unjust enrichment against Clear Channel, Inc. and related entities. Heerwagen claimed that the defendants had engaged in anticompetitive conduct in connection with their nationwide promotion of live music concerts. On August 11, 2003, the district court denied Heerwagen's motion for class certification, concluding that the putative class's antitrust claims required a separate analysis for each relevant geographic market, and, therefore, certification of a nationwide class was unwarranted. The Second Circuit affirmed. Heerwagen v. Clear Channel Commc'ns, Inc. et al., 435 F.3d 219 (2d Cir.2006). Heerwagen subsequently dismissed the case voluntarily.

Twenty-two regional putative class actions subsequently were filed against Clear Channel, Inc. and related entities, alleging substantively identical claims of: (1) Monopolization under Section 2 of the Sherman Act, 15 U.S.C. § 2; (2) Attempted Monopolization under Section 2 of the Sherman Act, 15 U.S.C. § 2; and (3) Unjust Enrichment. These actions ultimately were consolidated and assigned to this Court as part of this Multi–District Litigation (“MDL”).

On November 1, 2006, this Court issued an order staying discovery in every action except those in the following five geographic markets: Los Angeles, Chicago, New Jersey/New York, Boston, and Denver. (Dkt. 36, 37). On October 22, 2007, this Court issued an order certifying classes in these five markets and denying Defendants' motion for judgment on the pleadings as to Plaintiffs' attempted monopolization claims. (Dkt. 160); Thompson v. Clear Channel Communs., Inc. (In re Live Concert Antitrust Litiq.), 247 F.R.D. 98 (C.D.Cal.2007).

On November 16, 2009, the Court denied Plaintiffs' motion for approval of plan for class notice, and further ordered that the action be stayed pending the Ninth Circuit's en banc decision in Dukes v. Wal–Mart, 509 F.3d 1168 (9th Cir.2007). (Dkt. 215). On October 7, 2010, the Court granted Defendants' motion to lift the stay, denied Defendants' motion for reconsideration based on the Ninth Circuit's decision in Dukes v. Wal–Mart Stores, Inc., 603 F.3d 571 (9th Cir.2010) (en banc), and ordered the parties to submit a joint stipulation as to how best to proceed with this action. (Dkt. 240).

Pursuant to the parties' stipulation, the Court entered an Order Regarding Scheduling of Action on December 10, 2010. (Dkt. 260) Under this stipulated order, the parties agreed to limit further discovery to the Denver and Los Angeles markets. “The remaining three certified template markets (Chicago, New York and Boston) shall be stayed until the Denver and Los Angeles markets are tried or otherwise resolved.” ( Id.).

On February 7, 2011, Defendants filed a Motion for Partial Summary Judgment Regarding Statute of Limitations (with respect to the Denver and Los Angeles actions). (Dkt. 271). On April 7, 2011, the Court granted the motion. (Dkt. 310).

The following motions are currently pending before the Court:

• Defendants' Motion to Exclude the Testimony of Dr. Owen R. Phillips, (Dkt. 403);

• Defendants' Motion for Class Decertification, (Dkt. 410);

• Defendants' Motion for Summary Judgment (Denver Action), (Dkt. 438);

• Defendants' Motion for Summary Judgment (Los Angeles Action), (Dkt. 441);

• Plaintiffs' Motion for Approval of Plan for Class Notice, to Order Defendants to Produce Class Member Information, and to Modify the Class Definition, (Dkt. 460); and

• Plaintiffs' Motion to Strike Declaration of Julia Vander Ploeg, (Dkt. 516).

For the reasons set forth below, Defendants' Motion to Exclude the Testimony of Dr. Owen R. Phillips, (Dkt. 403), is GRANTED IN PART. Defendants Motions for Summary Judgment, (Dkt. 438, 441), are GRANTED. The remaining motions are DISMISSED AS MOOT.

II. PRIOR CLASS CERTIFICATION ORDER

As noted above, on October 22, 2007, the Court issued an Order Granting Plaintiffs' Motion for Class Certification (in the Chicago, Boston, New York/New Jersey, Denver, and Los Angeles markets). In re Live Concert Antitrust Litig., 247 F.R.D. 98 (C.D.Cal.2007). At that time, however, the Court was bound by then-governing Ninth Circuit precedent, under which district courts were precluded from resolving factual disputes—and, in particular, weighing conflicting expert testimony—at the class certification stage. Thus, the Court concluded “Dukes [ v. Wal–Mart, Inc., 474 F.3d 1214, 1229 (9th Cir.2007) ] clearly precludes the Court from conducting a Daubert analysis or weighing expert testimony,” id. at 116 n. 7, and effectively accepted as true, for purposes of that motion only, the representations of Plaintiffs' expert. “[T]his order views the allegations, expert testimony, and evidence through the very narrow prism permitted by Dukes. Accordingly, Plaintiffs have satisfied the requirements of Rule 23[.]” Id. at 155.

The original decision in Dukes, however, was subsequently withdrawn and replaced by Dukes v. Wal–Mart Stores, Inc., 603 F.3d 571 (9th Cir.2010) (en banc), which was, in turn, reversed by the Supreme Court in Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). In its decision, the Supreme Court enunciated a significantly different standard than that applied by this Court in its 2007 Class Certification Order. “[C]ertification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.... Frequently that ‘rigorous analysis' will entail some overlap with the merits of the Plaintiffs' underlying claim. That cannot be helped.” Dukes, 131 S.Ct. at 2551. The Court went on to observe, “The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. We doubt that is so[.]” Id. at 2553–54.

In short, the Court's prior Order Granting Class Certification was based on a legal standard that is no longer in effect, which precluded the Court from undertaking a meaningful analysis of either the underlying facts of the case or the representations of the parties' respective experts. As such, that order has little to no precedential value at this point in the litigation. The Court is writing on a proverbial “clean slate.”

III. PENDING MOTIONS (ORDER OF ANALYSIS)

There are several motions currently pending before the Court, including: (1) Defendants' motion to exclude the testimony of Plaintiff's expert Dr. Owen Phillips, pursuant to Federal Rule of Evidence 702; and (2) Defendants' motions for summary judgment as to the Denver and Los Angeles markets. These motions require two distinct inquiries. First, the Court must evaluate the admissibility of Dr. Phillips' proffered expert testimony in its role as “gatekeeper” under Rule 702. See Claar v. Burlington N. R.R., 29 F.3d 499, 501 (9th Cir.1994) (prior to ruling on summary judgment motion, “[t]he trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. The primary locus of this obligation is Rule 702.”) (emphasis in original) (quoting Daubert...