On September 23, a group of dairy petitioners filed a petition in the Sixth Circuit seeking interlocutory review of a class action certification in a significant antitrust case — In re Southeastern Milk Antitrust Litig.pdf (Case No. 10-0504) (PDF).  The Sixth Circuit has no “hard-and-fast test” for determining whether to grant a Rule 23(f) petition but, instead, considers a variety of factors, including the posture of the case before the district court, “the merits of [the] class certification decision,” the “potential expenses and liabilities” that class-action status creates, and whether “the class certification decision essentially tells the tale of the litigation”.  See In re Delta Airlines, 310 F.3d 953, 959-60 (6th Cir. 2002).

The matter below is before Judge Greer of the Eastern District of Tennessee (Case Nos. 07-CV-208 & 08-MD-1000).  The plaintiff-respondents are dairy farmers located in the southeastern United States who raise cows and produce milk, while the defendant-petitioners are comprised of dairy companies and cooperatives — including Dean Foods and the Dairy Farmers of America — who bottle the plaintiffs’ milk and who produce and market related dairy products.  The plaintiffs have alleged a number of Sherman Act violations by the defendants, accusing them of monopolization and monopsonization of the Grade A milk market.  On September 7, Judge Greer granted class certification, and the defendants have now sought interlocutory review by the Sixth Circuit, arguing, among other things, that “this case involves a putative class of dairy farmers who are in substantial measure, suing themselves.”  The plaintiffs seek injunctive relief and treble damages.

The Sixth Circuit Appellate Blog will be watching this petition for developments in what could prove to be a very interesting intersection of Rule 23 class certification and antitrust law.