In re SD Microsoft Antitrust Litigation

• Decision Date: 12 February 2003
• Docket Number: No. 22306.,22306.
• Citation: 657 N.W.2d 668,2003 SD 19
• Parties: In re SOUTH DAKOTA MICROSOFT ANTITRUST LITIGATION.
• Court: South Dakota Supreme Court

657 N.W.2d 668

2003 SD 19

In re SOUTH DAKOTA MICROSOFT ANTITRUST LITIGATION.

No. 22306.

Supreme Court of South Dakota.

Argued November 20, 2002.

Decided February 12, 2003.

Charles B. Casper of Montgomery, McCracken, Walker & Rhoads, LLP, Philadelphia, PA, David B. Tulchin, Joseph E. Neuhaus, Sullivan & Cromwell, LLP, New York, NY, Gene N. Lebrun of Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, South Dakota Attorneys for appellant Microsoft.

Mark A. Moreno of Schmidt, Schroyer & Moreno, PC, Pierre, South Dakota, Ben Barnow of Barnow & Associates, P.C., Chicago, IL, Leonard B. Simon of Milberg, Weiss, Bershad, Hynes & Lerach, LLP, San Diego, CA, Attorneys for appellees Swanson, Knecht, Schoenfelder, Gengler.

GILBERTSON, Chief Justice.

[¶ 1.] The Sixth Judicial Circuit Court granted class certification in this indirect-purchaser antitrust action to members of a certified class of South Dakota end-users (Class Members). This Court granted a discretionary appeal brought by Microsoft Corporation (Microsoft). We affirm the circuit court's certification order.

FACTS AND PROCEDURE

[¶ 2.] The Class Members, who are indirect purchasers of Microsoft Windows or MS-DOS operating systems software (OSS), are residents of the State of South Dakota. The Class Members allege that Microsoft has maintained a monopoly in the marketplace since the late 1980's or early 1990's. They contend that this monopoly was established through various anti-competitive acts such as stifling innovation in the market place and overcharging customers. The Class Members claim that Microsoft's actions "eliminated competition in the market for similar OSS, deprived purchasers of the benefits of a free market and injured consumers by forcing them to purchase Microsoft OSS at artificially high and supra-competitive prices in violation of South Dakota antitrust laws."

[¶ 3.] The Class Members sought and after extensive proceedings before the circuit court, obtained certification of a class in the Sixth Judicial Circuit.¹ Microsoft was granted this discretionary appeal, raising the following issue for our review:

Whether the circuit court abused its discretion when it granted class certification in this indirect-purchaser antitrust action.

STANDARD OF REVIEW

[¶ 4.] "On review of an order denying or granting a motion to maintain a class, the lower court may be reversed only for an abuse of discretion." Trapp v. Madera Pacific, Inc., 390 N.W.2d 558, 560-61 (S.D.1986); see also Swanson v. Sioux Valley Empire Elec. Ass'n Inc., 535 N.W.2d 755, 759 n. 2 (S.D.1995)

.

[¶ 5.] "`An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.'" Black v. Class, 1997 SD 22, ¶ 27, 560 N.W.2d 544. In applying the abuse of discretion standard, "`we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.'" State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citations omitted). Under such a standard of review "we must be careful not to substitute our reasoning for that of the trial court." State v. Larson, 512 N.W.2d 732, 736 (S.D. 1994).

ANALYSIS AND DECISION

[¶ 6.] The United States Supreme Court in Illinois Brick Co. v. Illinois, 431 U.S. 720, 729, 97 S.Ct. 2061, 2066, 52 L.Ed.2d 707 (1977), held that indirect purchaser suits for overcharge damages are barred under federal antitrust law. However, South Dakota, like many other states, has enacted a repealer statute that allows for indirect purchaser lawsuits to be maintained at the state level. Our state's repealer statute, SDCL 37-1-33, provides:

No provision of this chapter may deny any person who is injured directly or indirectly in his business or property by a violation of this chapter the right to sue for and obtain any relief afforded under § 37-1-14.3. In any subsequent action arising from the same conduct, the court may take any steps necessary to avoid duplicative recovery against a defendant.

(emphasis added).

[¶ 7.] In order to obtain certification of a class, the plaintiffs must satisfy all the requirements of SDCL 15-6-23 (FRCP 23(a))² (hereinafter Rule 23(a)) and at least one of the provisions of SDCL 15-6-23(b) (FRCP 23(b)) (hereinafter Rule 23(b)). Trapp, 390 N.W.2d at 560; Shangreaux v. Westby, 281 N.W.2d 590, 592-93 (S.D.1979). Microsoft does not dispute that the requirements of Rule 23(a) are met on this appeal;³ therefore, we will only address the requirements of Rule 23(b). In its entirety, this statute reads:

An action may be maintained as a class action if the prerequisites of § 15-6-23(a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate permanent injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(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 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 undesirability 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.

[¶ 8.] Plaintiffs assert that questions of law or fact common to all members of the proposed class predominate, including:

a. Whether Microsoft is a monopolist in the market for operating system software;

b. Whether Microsoft engaged in anti-competitive conduct in order to unlawfully maintain its monopoly powers;

c. Whether Microsoft's conduct violated South Dakota's antitrust laws;

d. The impact of Microsoft's activity in the relevant marketplace;

e. Whether Microsoft's conduct caused harm; and

f. Whether Plaintiffs and putative class are entitled to damages and appropriate measure of such damages.

According to General Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982), a court is required to conduct a rigorous analysis to determine if the elements of Rule 23 have been met.⁴ Furthermore, in applying the federal version of Rule 23, the United States Supreme Court has held that a party seeking certification must show "actual, not presumed," conformance with class certification requirements. Id. However, any doubts as to whether the class should be granted certification should be resolved in favor of certification. Bellinder v. Microsoft Corp., No. 99-CV-17089, 2001 WL 1397995, at *8 (Kan.Dist.Ct. Sep. 7, 2001) (citing Arch v. American Tobacco Co., 175 F.R.D. 469, 476 (E.D.Pa.1997)).

[¶ 9.] The question we are faced with here is whether this case is suitable for resolution on a class-wide basis. We stated in Trapp, 390 N.W.2d at 560:

Class actions serve an important function in our judicial system. By establishing a technique whereby the claims of many individuals can be resolved at the same time, the class suit both eliminates the possibility of repetitious litigation and provides small claimants with a method of obtaining redress for claims which would otherwise be too small to warrant individual litigation.

[¶ 10.] This is consistent with the last sentence of SDCL 37-1-33 which directs a trial court: "[i]n any subsequent action arising from the same conduct, the court may take any steps necessary to avoid duplicative recovery against a defendant." One method of insuring against this threat is to try all claims in a single proceeding.

[¶ 11.] We are aware that denial of class certification may be the death knell of claims due to the de minimus amounts of each individual claim which may economically preclude attempted redress by plaintiffs in separate law suits. c.f. Lick v. Dahl, 285 N.W.2d 594 (S.D.1979)

. Herein the circuit court held that there were "a very large number of claimants with relatively small amounts at stake. Most consumers have little incentive to file suit independently because the high cost of litigation would far exceed their potential recovery." At oral argument before this Court, Microsoft conceded that should the class not be certified, individual consumers could not in all likelihood, economically pursue separate legal actions against it.

[¶ 12.] Moreover, the Plaintiffs are not required to prove their case on the merits at the class certification stage. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 732 (1974); Bellinder, 2001 WL 1397995, at *7. They must make a "threshold showing" that the antitrust activity, if proven, had a common impact on the class members. Bellinder, 2001 WL 1397995, at *7; In re Catfish Antitrust Litig., 826 F.Supp. 1019, 1041-42 (N.D.Miss.1993). The Plaintiffs must advance a method for determining generalized damages on a class-wide basis. Bellinder, 2001 WL 1397995, at *7; Catfish, 826 F.Supp. at 1042-43.

[¶ 13.] Microsoft first argues that the trial court abused its discretion because it evaluated Plaintiff's showing under Rule...