American Crystal Sugar Co. v. United States District Court for the Northern District

ORDER

Petitioners seek a writ of mandamus to overturn the respondent-district court’s certification of fifteen classes and three subclasses in a treble damages antitrust suit alleging price fixing under Section 1 of the Sherman Act, 15 U.S.C. § 1 (1973). Petitioners argue, inter alia, that the district court abused its discretion in finding that the antitrust action satisfied the prerequisites to class action treatment under Fed.R. Civ.P. 23(a) and 23(b)(3). For example, they allege that common questions of fact or law (see Fed.R.Civ.P. 23(b)(3)) do not *483 predominate over individual questions in the present action where the antitrust claims involve a variety of geographic and product markets as well as different pricing and distributing structures. Furthermore, petitioners argue that conflicts exist among class members which preclude a finding that the class representatives will adequately protect the interests of the class. (See Fed.R.Civ.P. 23(a)(4).)

In Kerr v. United States District Court for the Northern District of California (1976) 426 U.S. 394 , 96 S.Ct. 2119 , 48 L.Ed.2d 725 the Supreme Court recently underscored the extraordinary nature of the mandamus remedy. (“The…

ON PETITION FOR REHEARING

ORDER

The arguments advanced by petitioners to support mandamus in their rehearing petition are no more persuasive than those offered in the original petition in view of the restrictiveness of review by mandamus in this Circuit. (E.g., Arthur Young & Co. v. United States District Court (9th Cir. 1977) 549 F.2d 686 ; Bauman v. United States District Court (9th Cir. 1977) 557 F.2d 650 [1977].)

Illinois Brick Co. v. State of Illinois (1977) — U.S. —, 97 S.Ct. 2061 , 52 L.Ed.2d 707 does not require us to reappraise our conclusion that the district court did not commit “clear and indisputable” error. Even if, under Illinois Brick Co., the district court erred, mandamus is inappropriate where alternative procedural means to mandamus are available to correct any harm flowing from such an error. (See, e. g., Arthur Young, supra, 549 F.2d at 692 .) Petitioners may obtain review of the order certifying indirect purchasers as members of the class by way of appeal from the final judgment. We have consistently rejected petitioners’ position that the costs of trying massive civil actions render review after final judgment inadequate. Furthermore, petitioners may…