Lawrence E. Lupien v. Harold W. Clarke

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-3993
___________
Randy Blades, Collin Cain, Fredrick L. *
Samples, Mark A. Jent, Roger Rivest, *
on behalf of themselves and all others *
similarly situated, *
*
Plaintiffs, *
*
Bob McIntosh, C-K Farms, *
*
Plaintiffs-Appellants, * Appeal from the United States
* District Court for the Eastern
v. * District of Misssouri.
*
Monsanto Company, Pioneer Hi-Bred *
International, Inc., Syngenta Seeds, *
Inc., *
*
Defendants-Appellees, *
*
Syngenta Crop Protection, Inc., *
*
Defendant, *
*
Aventis Crop Science USA Holding, *
Inc., *
*
Defendant-Appellee. *
___________
Submitted: September 13, 2004
Filed: March 7, 2005

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1The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
2Throughout, references to GM seeds refer only to Roundup Ready soybean
seeds or Yieldgard corn seeds—the seed types developed with Monsanto’s patented
genes.
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___________
Before MORRIS SHEPPARD ARNOLD, BRIGHT, and FAGG, Circuit Judges.
___________
BRIGHT, Circuit Judge.
Plaintiffs/Appellants brought this case as a putative class action under sections
four and fifteen of the Clayton Act, 15 U.S.C. §§ 15 & 16, for treble the damages
caused by an alleged price-fixing conspiracy in violation of section one of the
Sherman Act, 15 U.S.C. § 1. Appellants appeal from the district court’s 1 denial of
their motion to certify two classes. We affirm.
I. Appellants’ Allegations and Procedural History
Appellants allege as follows: Monsanto wished to extract the monopoly profits
it would have earned from certain genes it had patented, which could be used to
develop genetically modified corn and soybean seeds (GM seeds).2 But Monsanto
had surrendered its monopoly over the genes by giving broad licenses to Pioneer and
Syngenta. Monsanto therefore secured the agreement of Pioneer and Syngenta to
inflate the prices of their own GM corn and soybean seeds, to support Monsanto’s
technology fees (for inclusion of the patented genes in seeds Monsanto sold) rather
than to undercut the fees through normal price competition. Monsanto propped up
its technology fee also by securing the agreement of Appellee Aventis to limit its
production of LibertyLink soybean seeds, which competed with the GM soybean seed

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sold by Monsanto, Pioneer, and Syngenta. The parties to the conspiracy performed
their obligations under their illegal agreement to an extent sufficient to injure all
members of the proposed classes.
Appellants moved for certification of two classes. The first class consisted of
farmers (other than as distributors) who, from 1996 to present, purchased Roundup
Ready soybean seeds or the right to grow the seeds directly from one of the
defendants. The second class consisted of farmers (other than as distributors) who,
from 1996 to present, purchased Yieldgard corn seeds or the right to grow the seeds
directly from one of the defendants. Appellants sought certification of these classes
under Fed. R. Civ. P. 23(b)(3), which provides for class certification if “questions of
law or fact common to the members of the class predominate over any questions
affecting only individual members” and “a class action is superior to other available
methods for the fair and efficient adjudication of the controversy.”
To recover damages under section four of the Clayton Act, plaintiffs must
prove defendants violated the antitrust laws and that plaintiffs suffered some resulting
injury, and plaintiffs must estimate the measure of damages. Amerinet, Inc. v. Xerox
Corp., 972 F.2d 1483, 1490 (8th Cir. 1992). Appellants allege a price-fixing
conspiracy in violation of section one of the Sherman Act. For a class to be certified,
plaintiffs need to demonstrate that common issues prevail as to the existence of a
conspiracy and the fact of injury. See In re Visa Check/MasterMoney Antitrust Litig.,
280 F.3d 124, 135-40 (2d Cir. 2001). The district court found that plaintiffs satisfied
the Rule 23(a) prerequisites to a class action, but that common questions do not
predominate over individual questions. The district court held that neither the
existence of a conspiracy to fix prices, nor the existence of some resultant harm
constitute questions common to the class.

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II. Standard of Review & Class Certification Law
A district court’s denial of class certification is reviewed for abuse of
discretion. Chaffin v. Rheem Mfg. Co., 904 F.2d 1269, 1275 (8th Cir. 1990). The
district court’s rulings on issues of law are reviewed de novo, and the court abuses its
discretion if it commits an error of law. Emery v. Hunt, 272 F.3d 1042, 1046 (8th Cir.
2001). The district court also abuses its discretion if its conclusions rest on clearly
erroneous factual determinations. Forest Park II v. Hadley, 336 F.3d 724, 731 (8th
Cir. 2003).
The requirement of Rule 23(b)(3) that common questions predominate over
individual questions “tests whether proposed classes are sufficiently cohesive to
warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 623 (1997). The nature of the evidence that will suffice to resolve a question
determines whether the question is common or individual. See In re Visa, 280 F.3d
at 136-40. If, to make a prima facie showing on a given question, the members of a
proposed class will need to present evidence that varies from member to member,
then it is an individual question. If the same evidence will suffice for each member
to make a prima facie showing, then it becomes a common question. See id.
To determine whether common questions predominate, a court must conduct
a limited preliminary inquiry, looking behind the pleadings. See General Tel. Co. of
Southwest v. Falcon, 457 U.S. 147, 160 (1982). In conducting this preliminary
inquiry, however, the court must look only so far as to determine whether, given the
factual setting of the case, if the plaintiff’s general allegations are true, common
evidence could suffice to make out a prima facie case for the class. Cf. Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974). See also In re Visa, 280 F.3d at
134-35. When the decision on class certification comes before full merits discovery
has been completed, the court must necessarily conduct this preliminary inquiry

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3Contrary to Fed. R. App. P. 30(d), roughly 1,400 pages of appellees’
submissions in the Joint Appendix, containing many discrete reports, depositions, and
exhibits of economic experts, are identified in the table of contents by only two
general headings. This has rendered more difficult our task of identifying in detail
the parties’ agreements and disputes concerning the factual setting of the case.
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prospectively. A decision to certify or not to certify a class may therefore require
revisiting upon completion of full discovery.
The preliminary inquiry at the class certification stage may require the court to
resolve disputes going to the factual setting of the case, and such disputes may
overlap the merits of the case. See Szabo v. Bridgeport Machs., Inc., 249 F.3d 672,
676-77 (7th Cir. 2001). See also Newton v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 259 F.3d 154, 166-69 (3d Cir. 2001). Nonetheless, such disputes may be
resolved only insofar as resolution is necessary to determine the nature of the
evidence that would be sufficient, if the plaintiff’s general allegations were true, to
make out a prima facie case for the class. The closer any dispute at the class
certification stage comes to the heart of the claim, the more cautious the court should
be in ensuring that it must be resolved in order to determine the nature of the evidence
the plaintiff would require. Cf. Eisen, 417 U.S. at 177-78.
III. Factual Background
The parties do not dispute the essentials of the factual setting of this case. 3 In
the early 1990’s, Appellee Monsanto was a producer of genetic research pertinent to
the seed industry but was not itself a major producer of seeds. Monsanto had
developed a genetic modification for soybean seeds which made the plants resistant
to Roundup, a widely-used herbicide, and a genetic modification for corn seeds which
made them resistant to the European Corn Borer, a pest. While Monsanto enjoyed a
lawful monopoly over these genes, by virtue of its patents, it was unable to
commercialize the genes itself. In 1992 and 1993, Monsanto granted broad licenses

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to Appellees Pioneer and Syngenta, major seed producers and distributors, to develop
commercial seeds using these patented genes, thus surrendering its monopoly over
the genes. The licenses did not restrict in any material way Pioneer’s or Syngenta’s
development, marketing, or pricing of seeds containing the genes. For the soybean
licenses, Monsanto received full up-front payment from both Pioneer and Syngenta.
For the corn licenses, Monsanto received full up-front payment from Pioneer.
Syngenta’s corn license required payment of royalties which floated with whatever
premium Syngenta might charge for its GM corn seed sales as compared to its non-
GM corn seed sales.
After thus surrendering its patent-derived monopoly over the seed genes to two
major seed producers, Monsanto in the mid-1990’s became a major seed producer in
its own right. Monsanto also began licensing many other independent seed
companies to produce and sell seeds using the patented genes. These licenses, and
Monsanto’s own sales of GM seeds, required payment of specified “technology fees,”
separately invoiced, as payment for use of the patented genes. Pioneer and Syngenta,
however, were free to price their GM seeds solely with regard to ordinary price
competition—and thus to undercut the prices of GM seeds bearing the additional cost
of Monsanto’s technology fee. Pioneer and Syngenta thus threatened Monsanto’s
ability to collect the monopoly profits it would have been able to collect had it
retained the monopoly conferred by its patents.
Appellees Pioneer and Syngenta are major producers of seeds and compete
with each other nationwide. Many other firms with local or regional scope are
licensed to sell the GM corn and soybean seeds at issue here.
In general, the seed industry markets many hybrids of any general type of seed.
Specific hybrids are developed with a variety of traits addressed to such variable
factors as soil quality, rates of growth, aridity, severity of pest or weed problems, food
qualities, and so on. The GM corn and soybean seeds each come in many varieties.

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4Appellees argue that the proposed classes include indirect purchasers of GM
seeds. Appellees note that the class definitions allow for the possibility that some
farmers in the classes will have obtained the physical seeds from sources other than
appellees, but will have purchased the licenses to grow the seeds directly from
appellees. The class definitions indeed seem to allow for this. The parties, however,
give this question only cursory treatment, and the factual record is silent concerning
the operation of such transactions. The significance of this aspect of the class
definitions given the factual setting of the case is therefore unclear. The question
whether such farmers were direct or indirect purchasers is a combined question of law
and fact. The district court, in its order of September 19, 2003, denying summary
judgment, left the question unresolved. The specific instance then before the district
court concerned a farmer who bought GM seed from an independent dealer licensed
by Monsanto, was separately invoiced for the technology fee, and paid it to the dealer,
who remitted it to Monsanto. The farmer then separately obtained a license directly
from Monsanto to plant the seed (i.e., to use the patented gene to grow a commercial
crop). As to this particular case, we agree with the district court’s apparent
conclusion that this transaction is functionally indistinguishable from a direct
purchase of both the seed and the license from an agent of Monsanto. The record
does not reveal the factual nature of such transactions in general, beyond the single
transaction before the district court. Because the parties’ arguments on the question
whether such transactions are generally direct or indirect are cursory, because the
district court did not resolve the question, and because the factual record is
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Monsanto sold over fifty corn hybrids and approximately 120 soybean. Syngenta
sold approximately thirty of each, and Pioneer approximately fifty of each. Both seed
types were sold nationwide, though sales of some hybrids were geographically
limited. In many cases GM corn hybrids were sold alongside corresponding non-GM
hybrids, which were substantially similar, except for lacking the patented genetic
modification. GM soybean hybrids generally did not have corresponding non-GM
hybrids.
Appellees distributed GM seeds either through their own representatives or
through retailers and distributors. (The proposed classes include only farmers who
bought GM seeds—or the permission to grow them—directly from appellees.4
)

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inadequate as to the issue, we put the question to the side, without deciding it.
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IV. District Court’s Ruling and Discussion
The record is extensive. The district court made a careful analysis of the
evidence and came up with the following resolution rejecting the argument that all
members of the class would be able to use the same evidence to prove that they
sustained some damage from the alleged conspiracy:
Rule 23(b)(3): Predominance
Plaintiffs must meet all requirements of Rule 23(a) and fall within
one of the categories of Rule 23(b) to certify their antitrust claims as a
class action. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614
(1997). As stated above, plaintiffs seek to certify their antitrust classes
under Rule 23(b)(3), the so-called “common question” or “damages”
class action. To certify a class action under Rule 23(b)(3), the Court
must find that: 1) common questions predominate over any questions
affecting only individual members; and 2) class resolution is superior to
other available methods for the fair and efficient adjudication of the
controversy. Fed. R. Civ. P. 23(b)(3); Amchem, 521 U.S. at 615.
Because plaintiffs cannot meet the predominance requirement, I am not
authorized to certify the proposed classes.
In seeking class certification, plaintiffs have the burden of
demonstrating that, as required by Rule 23(b)(3), “questions of law or
fact common to the members of the class predominate over any
questions affecting only individual members.” This necessarily requires
an examination of the underlying elements necessary to establish
liability for plaintiffs’ claims. See Newton v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 259 F.3d 14, 172 (3d Cir. 2001). A plaintiff
seeking treble damages under of [sic] § 4 of the Clayton Act, 15 U.S.C.
§ 15, must establish an antitrust violation (here, the alleged conspiracy
to fix prices) and the fact of damage or injury, i.e., impact. Amerinet,
Inc. v. Xerox Corp., 972 F.2d 1483, 1490 (8th Cir. 1992); In re MSG,
205 F.R.D. at 232. Thus, to satisfy the “predominance” standard,
plaintiffs must show that both conspiracy and impact can be proven on

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a systematic, class-wide basis. Plaintiffs cannot satisfy either of those
prongs.
Plaintiffs have not Demonstrated that Antitrust Impact can
be Measured on a Class-Wide Basis with Common Proof
To establish cognizable injury under Section 4 of the Clayton Act,
plaintiffs must prove that the class members suffered injury to their
“business or property,” i.e., impact, as a result of the violation. See
State of Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309, 317 (5th
Cir. 1978); Midwestern Machinery v. Northwest Airlines, Inc., 211
F.R.D. 562, 571 (D. Minn. 2001). The importance of the impact
requirement cannot be understated, as noted by the court in Blue Bird:
In making the determination as to predominance, of utmost
importance is whether impact should be considered an
issue common to the class and subject to generalized proof,
or whether it is instead an issue unique to each class
member, and thus the type of question [that] might defeat
the predominance requirement of Rule 23(b)(3).
573 F.2d at 320. “[P]roof of injury in a price-fixing case will generally
consist of some showing by the plaintiff that, as a result of this
conspiracy, he had to pay supracompetitive prices . . . .” Id. at 327. To
establish antitrust impact, an expert is “required to construct a
hypothetical market, a but-for market, free of the restraints and conduct
alleged to be anticompetitive.” Concord Boat Corp. v. Brunkswick
Corp., 207 F.3d 1039, 1055 (8th Cir. 2000) (internal quotation marks
omitted).
To meet their burden of proof, plaintiffs offered up expert
testimony from Dr. Leitzinger. Defendants have asked me to apply the
test of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), and to disregard his testimony. I will deny defendants’ motion
in limine as I believe it is appropriate for me to consider all evidence at
this stage of the proceedings. I have considered all expert testimony
offered by both sides in support of or in opposition to class certification
and have afforded that testimony such weight as I deemed appropriate.
However, Dr. Leitzinger’s testimony does not show that impact can be
demonstrated on a class-wide basis.
Simply put, plaintiffs presume class-wide impact without any
consideration of whether the markets or the alleged conspiracy at issue

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here actually operated in such a manner so as to justify that presumption.
Dr. Leitzinger assumes the answer to this critical issue and plaintiffs, in
turn, have asked the Court to rely on this conclusion as support for class
certification. I cannot “presume” or “assume” -- much less “conclude”
-- class-wide impact here because the evidence submitted during the
class certification hearing demonstrates that such a presumption would
be improper.
First, the genetically modified seeds are not homogenous
products. The market for seeds is highly individualized depending upon
geographic location, growing conditions, consumer preference and other
factors.
Second, plaintiffs allege that only the “premium” portion of the
seed product is the result of the price-fixing scheme, but the germplasm
component of the seed cannot be segregated from the rest of the seed.
The evidence demonstrated that defendants and their distributors often
lowered the “overall” price of certain seeds, or gave discounts or rebates
to certain farmers to offset any alleged premium, and that some farmers
in fact paid no premium.
Another reason that the actual prices paid by farmers cannot be
determined with common proof is that the GM seeds were not offered
for sale at a uniform price. Plaintiffs suggested that defendants’
nationwide price lists could be used for this purpose, but the evidence
offered during the certification hearing demonstrated that these lists did
not reflect the actual price paid by farmers. Plaintiffs also suggested that
this issue could be resolved through a “claims procedure” that would be
implemented after the class certification process. This argument is
meritless. The amount of premiums paid, if any, is relevant to a
determination of impact, an essential element of a price-fixing claim,
and is not merely an assessment of the amount of damages, which may
be properly ascertained at a later time. It is clear that this determination
cannot be made on a class-wide basis, but would involve a fact-intensive
inquiry unique to each potential class member.
Dr. Leitzinger attempted to measure the premium by comparing
the price of GM seeds to conventional seeds, but in many instances the
GM seeds have no conventional counterpart. Therefore, it would be
impossible to determine the amount of premium paid. In addition, Dr.
Leitzinger conceded that even this calculation might not accurately

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affect the amount of the premium because insertion of the GM trait
might affect other agronomic characteristics of the seed which might
otherwise affect the price.
Plaintiffs cannot determine the “but-for” marketplace necessary
to establish antitrust impact without a reliable methodology to determine
the premiums paid by farmers. In fact, the evidence presented at the
class certification hearing showed that supply-and-demand conditions
for seed sales vary to such a great extent that the “but-for” prices could
be determined only through individualized inquiries for each potential
class member. These factors include growing seasons and conditions,
regional varieties and farmer preferences. Common proof simply cannot
be used to establish a “but-for” marketplace in this situation, particularly
where the evidence showed that the actual prices paid by many farmers
was well below Monsanto’s technology fee.
Finally, I am not persuaded that the alleged conspiracy could even
be proven with common evidence. The dynamics of this localized
industry make it highly unlikely that the existence and workings of the
alleged conspiracy could be shown through common proof.
In sum, after carefully considering all the evidence submitted
during the class certification hearing, I am convinced that the impact of
defendants’ alleged antitrust violations cannot be shown on a class-wide
basis with common proof. Instead, it is a highly individualized, fact-
intensive inquiry that necessarily requires consideration of factors
unique to each potential class member. The variety of GM seeds
purchased, geographic location, growing conditions and the terms of
purchase are all relevant to a determination of impact and cannot be
shown with common proof on a class-wide basis. Plaintiffs did not meet
their burden of establishing the necessary elements of Rule 23(b)(3)
through the testimony of Dr. Leitzinger, whose “assumptions,”
“presumptions” and “conclusions” fall far short of actually establishing
antitrust impact on a class-wide basis through common proof.
J.A. at 70-76 (emphasis in original) (footnote omitted).

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V. Analysis and Ruling to Affirm
In our review, parts of the extensive evidence produced in this case
demonstrate that not every member of the proposed classes can prove with common
evidence that they suffered impact from the alleged conspiracy. The ability to use
common evidence to show impact on all class members cannot always be assumed.
See, e.g., Alabama v. Blue Bird Body Co., 573 F.2d 309, 326-28 (5th Cir. 1978).
Here damages to all class members must be shown to justify the class action.
The district court noted, and appellees emphasize, the following:
(1) Since individual seed varieties can be used only in particular
geographies, the characterization of list prices as “national” is
misleading and does not reveal a “nationwide” approach to pricing;
(2) List prices for each of the hundreds of individual seed varieties were
set in reference to local competitive circumstances;
(3) List prices differed [from] variety to variety, and sometimes differed
from region to region for a single variety;
(4) List-price premiums varied significantly as well, and frequently were
substantially lower than the Monsanto technology fee;
(5) Many discounts on seeds were anything but formulaic -- Syngenta
alone had over 150 seed discount programs, and regional sales
representatives were authorized to negotiate ad hoc discounts in the
field, frequently involving free goods; and
(6) Heavy and variable discounting led to wide variation in the prices
that farmers actually paid, and widespread examples of Pioneer and
Syngenta seeds being sold at zero or near-zero premiums.

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Appellants challenge the district court’s conclusion that the element of
conspiracy, the violation of the antitrust laws necessary to recover treble damages
under the Clayton Act, could not be proved on a classwide basis with evidence
common to the class. The district court’s single-sentence explanation of its holding
is that, “The dynamics of this localized industry make it highly unlikely that the
existence and workings of the alleged conspiracy could be shown through common
proof.” J.A. at 76 (emphasis added).
The district court appears to have held that to prove the conspiracy element,
plaintiffs must prove not only the existence of an agreement, but also that defendants
actually performed the actions they agreed upon. If it did, it erred. The mere act of
agreeing to raise prices, even if the undertaking agreed upon is “wholly nascent or
abortive,” violates the prohibition of conspiracies in restraint of trade of section one
of the Sherman Act. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224
n.59 (1940). If the existence of the agreement is proven, the conspiracy is proven.
See FED . J URY PRAC . & I NSTR . § 150.20.
The performance of the obligations defendants undertook by virtue of the
agreement is not a separately treated element of a conspiracy claim but goes rather to
the element of resultant injury. See Concord Boat Corp. v. Brunswick Corp., 207
F.3d 1039, 1054-55 (8th Cir. 2000). Performance of a price-fixing conspiracy
necessarily implies injury. Cf. Socony-Vacuum, 310 U.S. at 218.
Evidence that appellees entered into a conspiracy that would affect all class
members would perforce be evidence common to all class members for proving the
conspiracy. See In re Linerboard Antitrust Litig., 305 F.3d 145, 163 (3d Cir. 2002);
see also 6 HERBERT B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS §
18:28 (4th ed. 2003). However, proof of conspiracy is not proof of common injury.

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5J.A. at 73-76.
6 The district court found that premiums could not be determined by comparing
GM seeds to conventional seeds because there was no proof that the conventional
seeds were the same but for the GM trait (i.e., it found that genetic modification could
cause other differences). After a thorough evaluation of the record, we have
concluded that this finding cannot be supported as to the corn seeds, and we do not
rely upon it for affirmance.
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We affirm the district court’s holding that appellants cannot prove classwide
injury with proof common to the class.
The district court’s discussion of this issue cites the following reasons: (1)
farmers buying GM seeds often received varying discounts from the list prices, so
each farmer would have to prove separately that he paid an actual transaction price
that was supra-competitive; (2) the market for seeds is highly individualized,
requiring particularized evidence to determine the competitive price that would have
prevailed in the locality of any individual farmer; (3) prices for GM seeds varied
widely, and some farmers paid negligible premiums or no premiums at all for GM
seeds, as compared with corresponding non-GM seeds; (4) plaintiffs’ expert did not
show that the fact of injury could be proven for the class as a whole with common
evidence.5
We rely on the second, third, and fourth of these holdings. The wide variation
in list prices among hybrids and the pricing of some GM hybrids with zero or
negligible list price premiums, as compared with corresponding non-GM hybrids,
would require the purchasers of some hybrids to prove injury through evidence that
would vary according to individualized market conditions and thus would not be
shared in common with the rest of the proposed classes.6 For the above stated
reasons, we affirm the denial of class certification.

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The district court’s memorandum and order does not distinguish between list
prices and transaction prices, or between list premiums and transaction premiums.
The court noted that in addition to instances in which list prices were discounted,
there were cases in which there were no premiums at all. It is clear from our review
of the record that the district court was presented with undisputed evidence not only
that list prices among hybrids varied greatly, but that in a substantial number of cases,
where GM hybrids existed alongside corresponding non-GM hybrids, the list prices
showed negligible list-price premiums, and in some cases no list premiums at all.
Therefore we take the district court’s statement that “some farmers in fact paid no
premium” at all to refer in part to cases in which corresponding list prices showed no
list-price premium for GM seeds.
To prove that the members of the proposed classes were injured by paying
supra-competitive prices for GM corn and soybean seeds, each plaintiff must be able
to present evidence from which a jury could reasonably infer that the competitive
price was less than the price the plaintiff paid. Appellants proffered to the district
court certain circumstantial evidence that they have now in hand (even without full
merits discovery) that is common to all members of the proposed classes. Appellants’
evidence consists of, for instance, Monsanto’s projection that, absent collusion, its
technology fees would be competed away in the course of four years, combined with
evidence showing that in fact the fees were not competed away; financial records of
Pioneer and Syngenta quantifying average GM seed premiums for their own sales
close in amount to Monsanto’s technology fees; documents from appellees indicating
that they had given thought, in devising the agreement, to creating techniques to
ensure that the agreed-upon premiums would be genuine and effective; documents
showing that appellees were able to estimate the premiums (not publicly identified)
which their co-conspirators had put into place.
Given the facts of this case, however, the above evidence suggesting that
appellees adhered to a price-fixing agreement that raised the average price of GM

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seeds does not make the case – which appellants must make in order to certify the
proposed classes – that appellees’ adherence extended to hundreds of list prices. It
is undisputed that there were many hybrids of both corn and soybean seeds, and that
list prices varied widely among hybrids, for both general types. For corn seeds, in
many cases a GM hybrid had a corresponding non-GM hybrid. Because no price-
fixing conspiracy is alleged as to non-GM hybrids, such pairings establish clear list-
price premiums for the GM corn hybrids. Appellees submitted to the district court,
and appellants did not dispute, that some GM corn hybrids had zero or negligible list-
price premiums. While a negligible or zero list premium may not conclusively
establish the absence of price inflation as to the hybrid at issue, such a premium
presents very different factual issues, and requires different proof, than do list
premiums that approximate Monsanto’s technology fee.
The undisputed presence of negligible and zero list premiums indicates that if
appellees performed their agreement, their performance was not across the board, but
extended to some list prices and not to others. Consequently, to show injury from
price inflation, each plaintiff would need to present evidence that the list prices of the
seeds he purchased, not just some or even most of the hundreds of list prices on
appellees’ price lists, were inflated. Evidence that appellees performed their
agreement so as to raise the average price of GM seeds, without inflating all list
prices, might suffice to make a case that list prices in a certain higher range were
inflated. Nonetheless it is clear that some potential class members would require
particularized evidence showing that the specific list prices pertinent to them were
included in any performance of appellees' agreement to inflate prices.
Appellants have neither proffered common evidence that they have now in
hand nor identified any type of common evidence that may yet be discovered which
could show injury to purchasers of GM seeds with negligible or zero list premiums.
Given appellants’ lack of any other type of common evidence, the district court did
not abuse its discretion in concluding that some proposed class members would be

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7In addressing the issue of GM hybrids for which there was no price premium,
the district court stated that “plaintiffs allege that only the ‘premium’ portion of the
seed product is the result of the price-fixing scheme, but the germplasm component
of the seed cannot be segregated from the rest of the seed. The evidence
demonstrated that defendants and their distributors often lowered the ‘overall’ price
of certain seeds . . . .” J.A. at 73. Appellants appear to understand this language as
a holding that a Clayton Act price-fixing claim is not suitable for class adjudication
if the alleged price inflation of the final product derives from an inflated price of a
part of the product. Appellees agree that the district court held in this passage that
“two-part pricing” in this case precludes common proof of impact. While the
meaning of the district court’s language here is not entirely clear, we think the court’s
point was simply that purchasers of some GM hybrids paid no more than they would
have paid for corresponding non-GM seeds. The district court did not rely on “two-
part pricing,” and as appellants note, as a general matter two-part pricing (unlike
indirect purchasing) presents no insuperable obstacle to common proof of impact.
See, e.g., In re Linerboard Antitrust Litig., 305 F.3d at 158-160. Nor did the district
court indicate that the factual setting of this case is such that pegging the alleged price
inflation of GM seeds to Monsanto’s desire to extract monopoly profits from its
patented genes somehow complicates appellants’ task of proving classwide injury.
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forced to fall back on a comparison of actual list prices to hypothetical competitive
prices. The court did not abuse its discretion in concluding that, because of the
variety of hybrids and the varying factors affecting list prices, the construction of
hypothetical competitive prices would require evidence that varied among hybrids
and perhaps across geographical pricing regions. The evidence showed the presence
of individualized market conditions, which would require individualized, not
common, hypothetical markets – thus individualized, not common, evidence.
GM soybean seeds, unlike corn seeds, generally did not have corresponding
non-GM hybrids, and clear list premiums therefore cannot be determined for them.
Given the similarities in pricing and marketing between the GM corn and soybean
seeds, however, the district court did not abuse its discretion in treating the two alike.7

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8 For purposes of analyzing appellants’ ability to prove classwide injury with
common evidence, we assume the existence of conspiracy. In referring to appellees’
performance of the conspiracy, we assume that the fact-finder would credit
appellants’ evidence of that performance. We do not, of course, assume the ultimate
truth of any of appellants’ allegations.
9Appellants’ impression that the district court resolved merits disputes appears
to stem in part from the way the certification issue was argued to the district
court—by appellees’ experts occasionally intermingling, improperly, opinions on the
actual merits of the injury element with opinions on the nature of the evidence that
would be required to prove injury, if the alleged conspiracy in fact existed.
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The district court concluded that appellants’ expert did not show that injury
could be proven on a classwide basis with common proof. While a persuasive expert
opinion is not the sine qua non of class certification, see, e.g., In re Linerboard
Antitrust Litig., 305 F.3d at 151-53, we affirm this holding as well. Appellants’
expert did not show that other common evidence could fill the gap in proof of
classwide injury that is left by appellants’ evidence that appellees performed their
price-fixing agreement as to some (but not all) list prices.8
Appellants argue on appeal that the district court improperly resolved disputes
between the parties’ experts that go to the merits of the case. We have stated that in
ruling on class certification, a court may be required to resolve disputes concerning
the factual setting of the case. This extends to the resolution of expert disputes
concerning the import of evidence concerning the factual setting—such as economic
evidence as to business operations or market transactions. While the district court’s
language may have been overbroad in places, we believe the district court’s findings
as to the experts’ disputes were properly limited to whether, if appellants’ basic
allegations were true, common evidence could suffice, given the factual setting of the
case, to show classwide injury. 9

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Appellants’ expert trained his analysis on the overall picture, showing that
common evidence could establish that appellees maintained an inflated average price
for GM seeds. In doing so, he explained how wide price variation could be consistent
with the faithful implementation of a price-fixing conspiracy. He did not
demonstrate, though, as he needed to, that class members could use common evidence
to show inflation through the whole range of list prices.
The expert suggested five potential benchmarks for measuring damages, which
appellants argue could be used also to prove injury. By estimating a competitive
price against which to compare the actual price, such a benchmark would be useful
also to prove the fact of injury. While appellants correctly state that they are not
required to settle on any particular benchmark for measuring damages at the class-
certification stage, see In re Linerboard Antitrust Litig., 305 F.3d at 154-55, if they
propose to use such a method to prove injury, they must show that it could work to
prove classwide injury with common evidence. Appellants’ expert, in opining on the
utility of these benchmarks, did not demonstrate how they could prove inflation
through the whole range of list prices for GM seeds.
VI. Conclusion
The district court found “that individualized issues predominate over common
questions and preclude class certification.” The question of predomination of
individual issues on common questions of damages to the farmers, class members,
may be a close issue, but we cannot say the trial court abused its discretion in denying
class certification. Accordingly, we affirm.
MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring.
I concur in the result.
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