### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-20719

FUNERAL CONSUMERS ALLIANCE INC; GLORIA JACCARINO BENDER; ANTHONY J. JACCARINO; JOHN CLARK; MARIA MAGSARILI; TONY MAGSARILI; FRANCES H. ROCHA; MARSHA BERGER; SANDRA GONZALEZ; DEBORAH WINCH; ANNA KAIN; GAY HOLTZ Plaintiffs-Appellants

v. SERVICE CORPORATION INTERNATIONAL; ALDERWOODS GROUP INC.; HILLENBRAND INDUSTRIES INC.; BATESVILLE CASKET CO. Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas

Before DENNIS, CLEMENT, and HIGGINSON, Circuit Judges. STEPHEN HIGGINSON, Circuit Judge: Plaintiffs-Appellants, the Funeral Consumers Alliance, Inc. (“FCA”) and eleven consumers (“Consumer Appellants”), brought a class action suit under § 4 of the Clayton Act, 15 U.S.C. § 15, agains t the largest United States casket manufacturer, Batesville Casket Company, and its owner Hillenbrand Industries, Inc. (collectively, “Batesville”); and against the three largest United States funeral home chains and distrib utors of Batesville caskets, Service U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 1 3, 2 012 Lyle W . Cayce Clerk Case: 10-20719 Document: 00511985977 Page: 1 Date Filed: 09/13/2012Corporation International (“SCI”), Alderwoods Group, Inc. (“Alderwoods”), and 1 Stewart Enterprises, Inc (“Stewart”). Plaintiff-Appellants a l l e ged that D ef e n d ant

- Ap p ellees conspired to foreclose competition f ro m in de p e n de nt c a s k et discounters (“ICDs”) who sold caskets directly to consumers at discounted prices and maintained artificially high consumer casket prices in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, by engaging i n a group boycott to prevent ICDs from selling Batesville caskets and dissuading consumers from purchasing caskets fro m I C D s . Pl aintif f

- Ap p ell ants also alleged that DefendantAppellees used concerted efforts to restrict casket pri ce competition, including coordinating prices, limiting the advertisement of pricing, and engaging in sham discounting. Plaintiff-Appellants sought damages to remedy the overpayment for Batesville caskets and s o u ght to enjoin Defendants’ allegedly anticompetitive conduct. The district court denied class certification and later, after Plaintiff-Appellants s e ttled their claims with Stewart, dismissed PlaintiffAppellants’ action against the non-settling remaining Defendant-Appellees for lack of subject matter jurisdiction. For the following reasons, we reverse and remand t h e di smissal of Plaintiff-Appellants’ § 4 claims for lack of subject matter jurisdiction, affirm the dismissal of Consumer Appellants’ and FCA’s action for injunctive relief for lack of subject matter jurisdiction, and affirm the denial of class certification. FACTS AND PROCEEDING FCA is a non-profit consumer rights organization d evoted to advocating consumers’ right to choose a meaningful, dignified, and affordable funeral that claims 400,000 individuals as members of its national organization or its local

Service C o r p o r a t i o n Inter natio nal and Alde rw ood s Gr oup, Inc. me rged se veral years aft er 1 the law sui t wa s fil ed but bef oret he pr es ent app eal.

2 Case: 10-20719 Document: 00511985977 Page: 2 Date Filed: 09/13/2012affiliates. Co n s u m e r Appellants are eleven individuals who each purchased a

Batesville casket f

r o m SCI, Alderwoods, or Stewart. No ICD is a party to this matter. On November 24, 2008, Magistrat e J udge Calvin Botley recommended that the P l a i ntiffs’ Motion for Class Certification be denied in a 30-page Memorandum and Recommendation (“M&R”). On D e c ember 29, 2008, Plaintiffs file d obj e c t ions to the M&R, attaching two additional expert reports from Dr. Gregory Vistnes. On March 26, 2009, United States District Judge Kenneth Hoyt adopted the M&R denying class certification. Following the denial of class certification, Plain t iffs settled their claims against Stewart on June 15, 201 0 (the “Stewart settlement”). In response, Defendants f

i l e d an expedited motion to strike Plaintiffs’ jury demand, which

was denied by Judge Hoyt on July 13, 2010. Two days later, Plaintiffs filed an expedited motion to dismiss for lack of subject matter jurisdiction. After briefing and oral a rgument on August 2, 2010, the district court granted Plaintiffs’ motion on September 27, 2010. The district court determined that because of the settlement with Stewart, Plaintiffs h a d lost standing to continue to sue the remaining Defendants. DISCUSSION A. Subject Matter Jurisdiction When reviewing a dismissal for lack of subject mat t er jurisdiction, we review factual findings for clear e rr o r a n d legal conclusions de novo . Krim v. pcOrder.com, Inc. , 402 F.3d 489, 494 (5th Cir. 200 5). Article III standing requires: (1) that Appellants have suffered an injuryin-fact ; (2) a c au s al c o nn e ction between the injury-in-fact and Appellees’ conduct; and (3) that it is like ly, not merely speculative, that a favorable decision will
3 Case: 10-20719 Document: 00511985977 Page: 3 Date Filed: 09/13/2012redress the injury-in-fact. J a mes v. City of Dallas , 254 F.3d 551, 563 (5th Cir. 2001) (internal citations omitted). 1. Damages claims The record is cle ar that Appellants are not seeking compensatory damages beyond those agreed to in the Stewart sett l e m e n t. Appellants argue, nonetheless, th at the Stewart settlement did not cover the attorneys’ fees and costs available to them under § 4 of the Clayton Act in this ongoing suit against multiple Defendants other than Stewart. Appellants seek to proceed with this

cause of action to prove that the remaining Defendants, Appellees herein, violated federal antitrust laws triggering Appellants’ st a t u t o ry right to attorneys’ fees and costs whether or not the Consumer Appellants seek further compensatory damages. The district court held that Appellants di d not have standing to recover such attorneys’ fees and costs because: Here, the consumer plaintiffs alleged overcharges by the defendants in an amount less than $22,000 each. They settled their suit for an amount far greater than each co u ld recover were the case successfully tried to conclusion. Hence, there are no damages that t he consumer plaintiffs could recover against the remaining defendant [sic]. And, because the consumer plaintiffs’ damages are quantifiable, as evidenced by their settlement, no irreparable injury is articulated even if a Clayton Act violation occurred.

. . . The result is that the consumer plaintiffs’ claim for actual injury under t h e Clayton Act is rendered moot by their settlement . . . . Under our precedent, however, Consumer Appellants have standing to resolve § 4 antitrust claims to decide entitlem e n t t o attorneys’ fees and costs even if a settlement with one defendant means that no additional compensatory damages will be assessed.
4 Case: 10-20719 Document: 00511985977 Page: 4 Date Filed: 09/13/2012The Clayton Act provides any successful plainti f f a mandatory award of costs and attorneys’ fees. 15 U.S.C. § 15(a). Section 4 of the Clayton Act states that, “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor

. . . and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” Id. The plaintiffs have a right under § 4 to sue for the statutorily mandated costs and reasonable attorneys’ fees even if a settlement with one defendant

means that no additional compensatory damages actually will be recovered. The plaintiffs’ right to recover attorneys’ fees from t h e d e f endants depends on whether the plaintiffs can succeed in “demonstrating that the d efendant[s] violated the antitrust laws and can establish the fact of damage.” Sciambra v. Graham News ( Sciambra II ), 892 F.2d 411, 415 (5th Cir. 1990). The plaintiffs’ settlement with one defendant does not prevent them from recovering costs and attorneys’ fees to which they may be entitled f r o m t h e remaining defendants because, by entering into a settlement agreement, “a party releases only those other parties whom he intends to release.” Zenith Radio Corp. , 395 U.S. at 130–31; see also Sciambra v. Graham News ( Sciambra I ), 841 F.2d 651, 656 (5th Cir. 1988). This court has held that p l a i n t i f f s have standing under analogous circumstances, “recogniz[ing] that

. . . the actual r e c o v e ry of compensatory damages [is] irrelevant to the recoverability of attorneys’ fees,” Sciambra II , 892 F.2d at 413–17, and this court and other courts have recognized that a plaintiff’s right to attorneys’ fees under the Clayton Act “is accorded to the injured party, not his counsel.” Carpa, Inc. v. Ward Foods, Inc. , 536 F.2d 39, 52 (5th Cir. 1976); accord First Iowa Hydro Elec. Coop

. v . I o w a - Illinois Gas & Elec. Co. , 245 F.2d 630, 632 (8th Cir. 1957); Farmington Dowel Prods. Co. v. Forster Mfg. Co. , 421

5 Case: 10-20719 Document: 00511985977 Page: 5 Date Filed: 09/13/2012F.2d 61, 88 (1st Cir. 1970)

. Thus, the plaintiffs have standing to seek costs and

reasonable attorneys’ fees from the remaining defendants. We addressed whether actual recovery of compensatory dama g e s i s required for a plaintiff to r e c over attorneys’ fees and costs in Sciambra II , 892 F.2d at 413–14. As in the present case, the issue before us in Sciambra II was 2 whether an antitrust plaintiff was no longer entitled to attorneys’ fees and costs after on e defendant settled with the plaintiff for an amount greater than the maximum amount of compensat o ry damages being sought. Id. Sciambra brought an antitrust action agai n s t G r aham News (“Graham”) and A.R.A. Services, Inc. (“ARA”). Id. at 413. Sciambra settled his claims against Graham but continued his suit against ARA. Id. Before trial, the district court held that ARA had abused the discovery process, entered a default judgment against ARA, ordered ARA to pay Sciambra’s attorneys’ fees and costs, and awarded damages. Id. This court rejected the district co u rt ’ s m ethod of calculating damages and remanded on the issue of damages. Sciambra I , 841 F.2d at 657–58. On remand, Sciambra conceded that his trebled lost profits were less th a n the Graham settlement. Sciambra II , 8 9 2 F

. 2 d at 413. The district court awarded no damages, affirmed its prior award of attorneys’ fees and costs from the default

Altho ugh Sci am braII dom inate d the parti es ’ dis cus sio n of this issue in brie fing and during 2 the dis tri ct cour t’s hearing, the dis tri ct cour t did not me ntio n Sci am bra II in its dec i s ion. Inst ead , the dis tri ct cour t reli ed upont he genera l pr opo sit ion st ated by the Sevent h Circ uit in Or tiz v. John O. Bu tl e r Co . , 94 F.3d 1121 (7t h Cir. 1996) , that , “w here a plai ntif f has
rec eived al l of the requ es ted reli ef to which she is legally ent i t led , ther e is no longer the requ isi te cas e or cont rover sy, and the court is wi thou t juris dic tio n.” 94 F.3d at 1125 (em phas is add ed)

. Ho we ver, App ellant s did not rec eiv e a l l o f t h e reli ef they requ es ted in this cas e; cons ist ent wi th the Clayton Act, t h e y r e q ues ted fur ther mo neta ry reli ef in the for m of
man dat ory att orne ys’ fee s a n d cos ts , if an antit rus t act ion agains t any De fen dant is “s ust ained .” Additio nally, Or tiz did not involve att orne ys’ fee s or the Clayt o n Act. The Sevent h Circuitdete rm inedt hat Ortiz wa s not “ent itle d to co mp ens atory damage s overand above the los t wa ges and benef its that we re off

s e t b y t he NLRB se ttl em ent” beca use she
wa ived her argum ents by failing to rais e thembe for e t he dis tri ct cour t. Id. at112 6. 6 Case: 10-20719 Document: 00511985977 Page: 6 Date Filed: 09/13/2012judgment, and awarded new attorneys’ fees and costs for the appeal and the

hearing on remand under § 4 of the Clayton Act. Id. ARA claimed that Sciambra could not be awarded attorneys’ fees and costs when an earlier settlement offset all compensatory damages. Id. at 413–14. We rejected that argument, writing t h at , “if a plaintiff can prove an antitrust violation a n d the fact of damage, the plaintiff is entitled to recover attorneys’ fees pursuant to section 4.” Id. at 415. “Our holding merely recognizes that the structure of section 4 and the fact of damage analysis make the actual recovery of compensatory damages irrelevant to the recoverability of attorneys’ fees.” Id. at 415–16. We r eiterated that the effect of a settlement on the plaintiff’s
recovery of compensatory damages has no effect on a plaintiff’s right to recover attorneys’ fees. Id. at 416. This analysis remains persuasive, is consistent with Congress’s statutory decision enacting the Clayton Act, and governs our case above all when a settlement, however generous and comprehensive, is with one but not all defendants. Appellees argue that our holding in Sciambra II does not apply to the present case because it is factually distinguishable. The default judgment against Graham News established the existence of an antitrust violation and the fact of damage before the district court determined that the Graham settlement precluded a compensatory damage award. Id. Appellees point to a sentence of

ours in Sciambra II to support t heir contention that this factual discrepancy distinguishes Sciambra II from the present case: [i]n a case such as this where, as the previous panel n o ted, the amount of potential damages was unclear when suit was instituted,

. . . an antitrust defendant that causes injury should not be spared liability for attorneys’ fees simply because a previous settlement turns out in retrospect to preclude a compensatory damage award. Id. at 416–17. To be sure, unlike Sciambra II , antitrust liability has never been

7 Case: 10-20719 Document: 00511985977 Page: 7 Date Filed: 09/13/2012ascertained in this case. The S t e w a rt settlement explicitly stated that no

l iability was being admitted by Stewart, and no liability determination was made by the district court. The settlement and subsequent stipulated dismissal of plaintiffs’ claims against Stewart with prejudice precludes a liability finding, and hence, any further recovery from Stewart. However, a s to the remaining Defendants, Appellees herein, Sciambra II’ s l o gi c applies for the narrow, but decisive, reason that no clear amount or allocation of attorneys’ fee s and costs

was assessed. Hence, these Defendants should not be spared liability for such 3 fees if the antitrust charges against them are sustained. The total amount potentially due to the Consumer Appellants remains unclear because the record contains disputed issues of fact as to the am o u n t o f a ttorneys’ fees and costs associated with this litigation. Monetary damages under § 4 of the Clayton Act include compensatory damages, a t torneys’ fees, and costs, not, as Appellees claim, merely compensatory damages. Again, our reasoning in Sciambra II validated Congress’s imperative in § 4 for mandatory attorneys ’ f e e s and costs. These attorneys’ fees and costs are mandatory, Congre s s d e cided, in order to encourage individuals to bring suits t o enforce the antitrust laws and to discourage potential defendants from violating antitrust laws. Cargill, Inc. v. Monfort of Colo., Inc. , 479 U.S. 104, 129 & n.6 (1986) (citing Zenith Radio Corp. v. Hazeltine Research, Inc. , 395 U.S. 100, 130–31 (1969)); Pfizer, Inc. v. Gov’t of India , 434 U.S. 308, 314 (1978); see also

Indeed , beca use ther e has been no det erm inati on of liabil ity wi th res pec t to t h e a lleged 3 antit rus t violat ion on the par t of any App elle es , a dec isi on to t h e cont rary wo uld res ult in a wi ndf all not negot iate d for by any par ty. App elle es wo uld benef it fr om a se ttl em ent that they had no rol e in and avoid any det erm inati on that they violat ed antitr ust law even thou gh the Ste wa rt se ttl em ent e x p l i c itly dis clai me d res olut ion for or agains t antit rus t liabil ity even as to Ste wa rt. Furt her, new cons u mers with unse ttl ed com pens atory dam ages clai ms coul d begin this c aseane w to det erm ine liabil ity. 8 Case: 10-20719 Document: 00511985977 Page: 8 Date Filed: 09/13/2012Sciambra II , 892 F.2d at 416. We explained in Sciambra II that, “[b]ecause of the importance of th e policy of encouraging private parties to bring antitrust actions, recovery of their reasonable attorney’s fees mu s t b e s u s t ain e d re gar dless of the amount of damages awarded.” Id. at 417 (quoting U.S. Football League v. Nat’l Football League , 887 F.2d 4 0 8, 412 (2d Cir. 1989)). This right to the mandatory attorneys’ fees, when applicable, belongs to the plaintiff, and not the plaintiff’s attorney. Se e, e . g. , Carpa, Inc. , 536 F.2d at 52 (explaining that a successful plai n tiff in a civil antitrust action has the right to a reasonable attorneys’ fee that “is accorded to the injured party, not hi s counsel” and that “the fee recovery [is ] p l a i n tiffs’ personal right” (citing First Iowa , 245 F.2d at 632); Farmington Dowel Prods. Co. , 421 F.2d at 88 (“It seems clear to us that .

. . the court’s award [of attorneys’ fees] go e s first to the plaintiff as part of his
recovery in accordance with the language of section 4. If he chooses to pass that
money on to his attorneys, that is his business.” (emphasis added)); First Iowa , 245 F.2d at 632 (“The provisions of the Clayton Act (15 U.S.C.A. § 15) provide[] for recovery of an at t o r n e y f e e in addition to treble damages but the right

accrues to the party injured and not to his attorney.” (citations omitted)); see also IIA Phillip E. Areeda e t al., Antitrust Law ¶ 330e, at 46–47 (3d ed. 2007) (explaining that the Clayton Act “makes clear that the plaintiff, not the attorney, is entitled to recover the attorneys’ fees and costs”). Additionally, a ruling to the contrary would discourage plaintiffs from making early settlements with some but not all defendants because a settlement could later operate to preclude full
recovery of fees and costs pursuant to the Clayton Act. Gulfstream III Associates

v. Gulfstream A e ro s

pace ( Gulfstream I

), 995 F.2d 414, 419 (3d Cir. 1993) (applying Sciambra II ). This court and other courts have recognized that another of “the purposes of section 4’s attorneys’ fees awards” is to “encourage[]

9 Case: 10-20719 Document: 00511985977 Page: 9 Date Filed: 09/13/2012private prosecution of antitrust violations by insulating plaintif f s ’ treble damage recoveries from the expense of legal fees.” Sciambra II , 892 F.2d at 416 (quoting Home Placement Serv. v. Providence Journal Co. , 819 F.2d 1199, 1210 (1st Cir. 1987) (internal quotation marks omitted) (citing U.S. Football League , 887 F.2d at 412; Twin City Sportservice, I n c . v . Charles O. Finley & Co. , 676 F.2d 1291, 1312 (9th Cir. 1982)). Appellants made it clear that they would not have settled with Stewart if they had known there was a possibility that the settlement would “have forfeited their right to seek mandatory costs and fees.” The Third Circuit, in addition to highlighting the st a t u t o ry priority of encouraging private parties to settle, pointed out that, “[a]lthough in almost all

cases an award of compensatory damag es will accompany an award of Section 4 attorneys’ fees, the latter is not depende n t u p o n the former.

. . . Any other holding would no t o n ly deter the private prosecution of antitrust violations, which is a critical element in the antitrust enforcement scheme and the primary

r eason attorneys’ fees are mandatory under the statute, but could also d e t e r plaintiffs from early settlements with some defendants.” Gulfstream I , 995 F.2d at 419; see a ls o i d

. (“hold[ing] that the district court did not err in awarding [plaintiffs] attorneys’ fees even though the trebled verdict was entirely offset by the prior settlements”). 4 Notably, on remand, Appellants’ claims may fail, in which case attorneys’

Indeed , even the conc urr ence obs erved that i f one acc ept s that “ Sci am bra [w as] right ly 4 dec ide d, t hen it is clea r thatan antitrustplaint iff can proc eedto tria l fora deter mi natio n of liabil ity and a pot enti al fee aw ard , even wh ere prior se ttl em ents alre ady have clea rly negate d any act ual rec eip t of fur ther dam ages .” Gu lf stre am III As soc ia tes v. Gu lf stre a m A ero sp ac e ( Gu lf stre am II

), 995 F.2d 425, 443 (3d Cir. 1993) (G ree nber g, J., conc urring). Judge Gr eenbe rg cit ed s evera l argum ents to sup por t hisvie w, in cluding t hat: ( 1) att orne ys’f ees andcost s are man dat ory unde r the Clayton Act; (2) the magnitud e of att orne ys’ fee s and cos ts indi cat e they are a “cr ucial com pone nt of a plai ntif f’ s rec overy” that may excee d the com pens atory dam ages so ught; and (3) a tri al me rely to det erm ine wh ethe r to aw ard att orne ys’ fee s and cos ts wi ll be extr em ely rar e. Id. at 442–44. 10 Case: 10-20719 Document: 00511985977 Page: 10 Date Filed: 09/13/2012fees and costs would not be awarded at all.

Appellees cite Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83 (1998), Lewis v. Cont’l Bank Corp. , 494 U.S. 472 (1990), and Vermont Agency of Natural Res. v. United States , 529 U.S. 765 ( 2000). The Supreme Court, in that li ne of
cases, however, clarified the well-settled proposition that plaintiffs cannot sue merely for the “byproducts” of litigation, but n e i t h e r the Supreme Court, nor courts applying that case law, have extended “byproducts” reasoning to include, indeed preclude, Congressionally mandatory attorneys’ fees and costs. In Steel Co. , Citizens for a Better Environment sued Steel Company under the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) for failure to file reports as required under EPCRA. 523 U.S. at 86–88. Under the EPCRA, any damages from an EPCRA violation are awarded to the United States Treasury, not the party bringing suit. Id

. at 106–07. The statute made it permissible, but not mandatory, for the district court to award “the prevailing

or substantially prevailing party” the c o s t s o f l i tigation in a final order. Id. at 107 n.8. The Supreme Court determined that the plaintiff did not have standing because the plaintiff was not seeking any relief that would remedy the injury it suffered. Id. at 107–10. The Court explained that since Citizens for a Better E nvironment was not eligible for any relief under the EPCRA, they could not bring a suit merely to obtain discretionary attorneys’ fees and costs. In contrast, Appellants are eligible for ma n d a tory fees and costs under the Clayton Act if t h e i r antitrust claims are proven valid. Again, under § 4 of the Clayton Act, attorneys’ fees and costs are not left to the discretion of the judge. They are part of a tripartite award Congress has mandated for plaintiffs to encourage private enforcement of antitrust actions. Attorneys’ fees and costs are awarded even if

an oth e r w i s e successful plaintiff is awarded no compensatory damages by the

11 Case: 10-20719 Document: 00511985977 Page: 11 Date Filed: 09/13/2012jury. Ducote Jax Holdings LLC v. Bradley , 335 F. App’x 392, 402 (5th Cir. 2009)

(unpublished) (citing Sciambra II , 892 F.2d at 414–16). The award is mandatory and not limited to merely litigation costs. In Lewis , the plaintiff secured an injunction and declaration that a Florida banking law violated the Commerce Clause and t h e n brought a separate statutory claim for attorneys’ fees under 42 U.S.C. § 1988, contending that it had prevailed on its 42 U.S.C. § 1983 claim because the state’s prior enforcement of the law deprived the plaintiff of its constitutional rights. 494 U.S. at 4 7 4

– 7 6

. Section 1988 allows courts, again, in their dis c r etion, to grant parties who prevail on certain federal claims to obtain attorneys’ fees as part of their costs. The Supreme Court held that the plaintiff was no longe r a “ p r e v ailing party” and, thu s , n o longer entitled to attorneys’ fees because the underlying § 1983 claim became mo o t o n a p p e a l. Id. at 476, 483. Here, the Stewart settlement 5

The App elle es mi st ak enly rely upon the fol low ing langu a g e i n L ew is : “[t] his inte res t in 5 att orne y’s fee s is, of cour se , ins uff icie nt to cre ate an Arti cle III cas e or cont rover sy wh ere none exis ts on the me rit s of the unde rlying clai m. ” Id. at 480 (c itin g Di am ond v. Char les , 476 U. S. 54, 70–71 (198 6))

. Both Lew is and Di am ond are dis t i n gu i shable fr om our cas e. Di amo nd so ught to def

end the cons tit utio nalit y of par t of an Illinois abortio n law bas ed on his per so nal objec tio n to abortio ns and his st atus as a p edi atricia n an d as a par ent of an unem ancip ated mi nor daughter

. 476 U. S. at 56–58. He app ealed the Sevent h Circ uit’ s grant of a per man ent injunct ion aft er theStat e of Illinoi s cho senot to app eal. Id. at 61. Becaus e D iam ond had no judic ially cognizable inte res t in the st atut e’s def ens e, the Sup rem e Court dis mi ss ed for wa nt of juris dic tio n. Id. at 56. The Court held that Di amo nd did not have st andi ng to app eal sim ply beca use the dis tri ct court had ass es se d the plai ntif fs att orne ys’ fee s agains t him unde r § 1988 and he wo uld have to pay thos e fee s unles s the Sta te’ s regula tio ns we re rein st ated on app eal. Id. at 69–70. It wa s not the cas e that Di amo nd “‘p ers onally has suf fer e d s o m e a c tual or thr eate ned injury as a res ult of the put atively illegal cond uctof the de fen dant ,’and thatthe injury ‘f airl y can be tra ced to the chall enged act ion’ and ‘is lik ely to be red res se d by a favor able dec isi on, ’” as r e q u i r e d by Arti cle III. Id. at 70 (int erna l cit atio ns om itt ed)

. The Court det erm inedt hat: [ a] n y liabil ity for fee s is, of cour se , a cons equenc e of Di amo nd’ s dec isi on to inte rvene, but it canno t fai rly b e tra ced to the Illinois Abort ion Law

. The fee
aw ardis whol ly unrelat ed tothe subje ct m att er of the litigat ion, and b ears no rela tio n t o t he st atut e w hos e c ons tit utio nalit y is atis suehe re. 12 Case: 10-20719 Document: 00511985977 Page: 12 Date Filed: 09/13/2012o n ly resulted in the dismissal with prejudice of Appellants’ antitrust clai m s

against Stewart, not as against Appellees. Second, the Appellants’ entitlement to attorneys’ fees is not discretionary if they prevail; it is a statutory mandate. And third, unlike the plaintiff in Lewis , Appellants in this case have not yet had assessed and received the full amount that could be due to them under § 4 of the Clayton Act. See also Church of Scientology of Cal. v. United States , 506 U.S. 9, 12–13 (1992) (“[A] court does have power to effectuate a partial remedy

. . . . The availability of this possible remedy is sufficient to prevent this case from being moot.”). Finally, in Vermon t A

gency , the defendant challenged the standing of a qui tam relator to bring suit. 529 U.S. at 771–72. The Sup r e m e Court held that, “[a]n interest unrelated to injury in fact is insufficient to give a plaintiff standing. The interest must consist of obtaining compensation fo r , or preventing, the violation of a legally protected right.” Id. at 772–73 (internal citations omitted). Th e qui tam relator had not suffered an invasion of any right; he was suing on behalf of the United States for a violation of one of its rights. Id. at 773. As a result, he wa s s u i n g f o r a mere “byproduct” of the suit that would not materialize until the relator prevailed at the end of litigation. Id. In the present case, Appellants have alleged that they directly have suffered an invasion of their right to be free from violations of federal antitrust law s . The intere s t at issue (mandatory attorneys’ fees and costs) is related to this injury-infact because the plain language and undisputed purpose of the mandatory

Id. By cont ras t, App ellant s in the ins tant cas e allege that they we re injure d by the “p utat ively illegal conduct of the def enda nt. ” Atto rneys ’ fee s and cos ts are par t of the c o m p e n s a tio n man dat ed in § 4 as a res ult of a def enda nt’ s pr ovable violat ion of fed eral antit rus t law s. Thus, the man dat ory fee aw ard is a par t of the subject mat ter of the liti gation and mus t be aw ard ed to every suc ces sf

ul plai ntif

f. 13 Case: 10-20719 Document: 00511985977 Page: 13 Date Filed: 09/13/2012attorneys’ fees a n d costs provision (to discourage potential defendants from

violating antitrust laws) helps prevent the violation of the legally protected right (the violation of federal antitrust laws). Sciambra II , 892 F.2d at 416. Therefore, adhering to the law of this circuit and the Clayton Act, and in the absence of any prior attorneys’ fees and costs assessment, Consumer Appellants have standing to proceed to trial against the non-settling Defendants to attempt to prove an antitrust violation. If Consumer Appellants prove a statutory violation, then the trier of fact will determine what at t o r n e y s ’ fees, costs, and any exact compensatory damages amount would be awarded. 2. Injunctive relief T o h av e standing to sue for injunctive relief, a party must: (1) have suffered an injury-in-fact; (2) establish a causal connection between the injuryin-fact and a complained-against defendant’s conduct; (3) show that it is likely, not merely speculative, that a favorable decision will redress the injury-in-fact; and (4) “demonstrate either continuing harm or a real and immediate threat of repeated injury in the future.” James , 254 F.3d at 563 (internal cit a t ions omitted); Soc’y of Separationists, Inc. v. Herman , 959 F.2d 1283, 1285 (5th Cir. 1992); see also City of Los Angeles v. Lyons , 461 U.S. 95, 111 (1983). The threat of injury must be “concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical

. . . .” Summers v. Earth Island Inst. , 555 U.S. 488, 493 (2009) (internal citations omitted). 6

App ellant s ar gu e the “ca pabl e of rep eti tion , yet evadi ng revie w” doc tri ne sho uld app ly to 6 allow for Arti cle II I s t andi ng. Ho we ver, even in the mo otne ss cont ext, “th e cap able- of- rep etitio n doc tri ne app lies only in excep tio nal sit uatio ns, and generally only wh ere the nam ed plai ntif

f can mak e a re a s o n ab l e s h o wi ng that he wi ll again be subject ed to the allege d illegality. ” City of Los Ange le s v. Lyon s , 461 U. S. 95, 108 (198 3) (c itin g DeFunis v. Odegaa rd , 416 U. S. 312, 319 (197 4))

. He re, as expla ined below , none of the eleven individual cons ume r app ellant s hasm adet hisd em ons tra tio n. 14 Case: 10-20719 Document: 00511985977 Page: 14 Date Filed: 09/13/2012The district court determined Consumer Appellants did not have standing

to sue for injunctive relief because they could not “establish an irrepar able injury

or a future threat.” Specifically, the district court concluded that (1) any harm would be reparable by a monetary award, like the Stewart settle m e n t, and (2) based on the particular allegations here, the chance of o n e o f the Consumer Appellants purchasing another Batesville casket or his or her family purchasing

a Batesville casket upon the Consumer Appellant’s death did not create a “‘real’ immediate” or potential future injury. Consumer Appellants di d not establish that there was a real and immediate thre a t that any of the eleven remaining Consumer Appellants will purchase an alleg e dl y o v erpriced Batesville casket from a SCI or Alderwoods funeral home. In order for the remaining Consumer Appellants to have a future 7 injury, they would have to (1) purchase a Batesville casket that was overpriced and (2) that purchase would have to be from a SCI or Alderwoods funeral home. Batesville makes less than half of the caskets sold in the United States, and SCI and Alderwoods together own and operate less than 10% of funeral homes in the U n i t e d States. The Consumer Appellants could purchase a non-Batesville casket or purchase a casket from an ICD or from a funeral home not owned by Consumer Appellees when, if ever, they might need to purchase a casket in the

App ellant s ref

er to Credi t Bu re a u R e p o r ts , Inc. v. Reta il Credi t Co. , 476 F.2d 989 (5t h Cir. 7 1973) , and Suprem e Beef Proc ess ors, Inc. v. U. S. De p’t of Agri c. , 275 F.3d 432 (5t h Cir. 2001) , for the pr opo sitio n th at pos sib le or pot enti al harm is suf fic ient to es tabl ish injunct ive st andi ng. Credi t Burea u Rep orts did not dis cus s wh ethe r a pas t harm is suf fic ient ly lik ely to occ ur in the fut ure to wa rra nt an injunct ion but ins tead dis cus se d wh ethe r the plai ntif f wa s clos e enough to ente ring a mar ke t to argue the def enda nt’s mo nopo lizat ion ke pt the plai ntif f fr om ente ring. 476 F.2dat 993. In Suprem e Beef Proc ess ors , we dec ide d that the plainti ff coul d st ill se ekan injunct ion beca use it wa s pos sib le that the def enda nt wo uld not be for ced to clos e its bus ines s aft er ban k r u p t c y p r oce edi ngs; if this wa s not pos sib le, an injunct ion wo uld have been unnec es sary. 275 F.3d at 436–37. The cas e wa s mo ote d during pr oce edi ngs; st andi ng wa s not lack ing f

romt he outs et. Id. at436–38. 15 Case: 10-20719 Document: 00511985977 Page: 15 Date Filed: 09/13/2012future. Appellants admit that ICDs sell “s i m i l a r o r superior” caskets at lower

prices. Appellants cite no evidence that they specifically sought out a Batesville casket or confined the i r c a s k e t purchase to a SCI or Alderwoods funeral home in the past. The fact that death is inevitable is not sufficient to e s t ablish a real and immediate threat of future harm. Appellants did not cite any evidence that any 8 of the eleven named individuals are e v e n charged with the task of purchasing

a casket for a friend or relative upon his or her passing. “Such ‘some day’ intentions—without any description of con c r e t e plans, or indeed any specification o f w h en the some day will be—do not support a finding of the ‘actual or i m m i n e n t ’ injury that our cases require.” Summers , 555 U.S. at 496 (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 564 (1992)); see also In re N

. J

. Title Ins. Litig. , 683 F.3d 451, 461 (3d Cir. 2012) (holding that consumer plaintiffs failed to establish standing for antitrust injunction claim alleging anticompetitive conduct in the setting of title insurance rates where, inter alia, they did not allege any “plans to buy title insurance in the future, thus failing to raise their claims above the speculative level”); McCray v. Fid. Nat’l Title Ins. Co. , 682 F.3d 229, 243–44 (3d Cir. 2012) (reaching the same conclusion where, inter alia, plaintiffs in a si m ilar action likewise had not alleged that they had “‘actual or imminent’ plans to pur c h a se title insurance”); In re New Motor Vehicles Canadian Exp. Antitrust Litig. , 522 F.3d 6, 14–15 (1st Cir. 2008) (holding that

consumer plaintiffs lacked standing to pursue antitr u s t injunction action alleging anti-competitive action by automobile company defendants where “the

Altho ugh App ellant s cont end that one of the Cons ume r App ellant s pur chas ed another cas ke t 8 fr om SCI aft er the suit w as f iled , as the dis tri ct court held , it is not clear that she pur chas ed a Bates ville cas ke t. Further, this cont enti on wa s st ate d b y Plaintiff-Ap pel lants ’ couns el in oral argum ent for the mo tio n to dis mi ss , and no sub st antia ting evide n ce wa s pr es ente d in the rec ord

. 16 Case: 10-20719 Document: 00511985977 Page: 16 Date Filed: 09/13/2012complaint [did not] make any allegation regarding a named plaintiff’s intention

to buy or lease another new vehicle within such a time frame as could be deemed imminent”). 3. FCA’s associational standing to pursue injunctive relief It is wel l -established law that an association has Article III standing to bring a suit on behalf o f i t s m e mbers when “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the

relief requested requires the participation of individual members in th e l aw s uit

. ” Hu n t v. Wash. State Apple Adver. Comm’n , 432 U.S. 333, 343 (1977). T h e Supreme Court has held that in order to satisfy the first prong of the Hunt test, “an organization suing as representative [must] include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association.” United Food and Commercial Workers Union Local 751 v. Brown Group, Inc. , 517 U.S. 544, 555 (1996) (citing Simon v. E. Ky. Welfare Rights O r

g
. , 4 2 6 U.S. 26, 40 (1976) (An “association ‘can establish standing only as r epresentatives of those of their members who have been inj u r e d i n f

a ct, and thus could have brought suit in their own right.’”)). An organization lacks standing if it fails to adequately “all e g e [] that there is a threat of [] injury to any individual member of the association” and thus “fail[s] to identif

y e v e n one individual” member with standing. Nat’l Treasury Employees Union v. U.S. Dep’t of Treasury , 25 F.3d 237, 242 ( 5 th C i r . 1994). “Past exposure to illega l c o n d u c t d oes not in itself show a present case or controversy regarding injunctive relief

. . . if unaccompanied by any continuing, present adverse effects.” Lujan , 504 U.S. at 564 (quoting Lyons , 461 U.S. at 102) (internal quotation mark s o m itted). To make this showing when seeking an

17 Case: 10-20719 Document: 00511985977 Page: 17 Date Filed: 09/13/2012injunction, the organization “must show [an individual who] has sustained or is

i m m e di a tely in danger of sustaining some direct injury as the result of the challenged official conduct, and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” Nat’l Treasury Employees Unio n , 2 5 F

. 3 d at 242 ( quoting Lyons , 461 U.S. at 101–02) (internal quotation marks omitted). The Supreme Court has rejected the contention that standing

c an be established by “accepting the organization’s self-description of th e activities of its members” and determining that “there is a statistical probability that some of those members are threatened with concrete injury.” Summers , 555 U.S. at 497. Appellants alleged in their first amended consolidated class action complaint only that, “FCA’s members include consumers that have purchased,

or in the future will likely purc h ase, caskets from funeral homes owned and operated by Stewart, Alderwoods, and SCI.” Because Appellants do not allege that t h e r e w a s a real and immediate threat that any of FCA’s members will purchase an all e g e dl y overpriced Batesville casket from a SCI or Alderwoods funeral home, FCA lacks injunctive standing on behalf of its members. 9

If the ass ocia tio n se ek ing st andi ng doe s not have tra dit i o n a l me mbe rs , as here , the 9

ass ocia tio n es tabl ish e s i t s st andi ng by pr oving that it has “ind icia of me mbe rs hip” : its me mbe rs elec t lead ers hip, se rve as the organi zatio n’ s l ead ers hip, and fina nce the organi zatio n’s activit ies , incl udin g the cas e’s liti gation cos ts

. Hu nt , 432 U. S. at 344–45. The organi zatio n mus t rep res ent the individual s it clai ms as me mbe rs and pr ovide “th e me ans by wh ich [t hos e individual s] expr es s thei r coll ect ive view s and pr ote ct thei r coll ect ive inte res ts .” Id. at 345. App elle es argue that FCA doe s not hav e s t a n d i ng to pur sue injunct ive reli ef beca useFCA doe s nothave any me mbe rs . We do not de ter mi ne whe therFCA hasmem bers
as def ined by Hu nt beca use even ass umi ng the FCA has me mbe rs , the FCA has not, on the
rec ord bef

ore us, me t the fir st pr ong of the Hu nt tes t. Com pa re id. at 344–45, wi th Fri ends of the Earth, Inc. v. Chev ron Chem

. Co . , 129 F.3d 826 (5t h Cir. 1997) , and As soc . for Reta rde d Citizens of Da llas v. Dal las Cnty. Me ntalH ea lth & M

entalRe tarda tion Ctr. Bd. of Trus tees , 19 F. 3d 241 (5t h Cir

. 1994)

. 18 Case: 10-20719 Document: 00511985977 Page: 18 Date Filed: 09/13/2012B. Class Certification Denial 1 0

We review a denial of class certification for abuse of discretion and legal questions implicated by that decision are reviewed de novo . Alaska Elec. Pension Fund v. Flowserve Corp. , 572 F.3d 221, 227 (5th Cir. 2009) (per curiam); Vizena

v. Un i on Pac. R.R. Co. , 360 F.3d 496, 502 (5th Cir. 2004). “‘The district court maintains great discretion in certifying and managing an action.’” Vizena , 360 F.3d at 502 (quoting Berger v. Compaq Computer Corp. , 257 F.3d 475, 478 (5th Cir. 2001)). The requirements for certifying a class action are set forth in Fed. R. Civ. P. 23. “To ob t a i n c l a s s certification, parties must satisfy Rule 23(a)’s four threshold requirements, as well as the requirements of Rule 23(b)(1), (2), or (3).” Maldonado v. Ochsner Clinic Foun. , 493 F.3d 521, 523 (5th Cir. 200 7). 1 1 Appellants c o n t e s t the district court’s findings that they failed to meet

Becaus e t he dis tri ct co urterredin dism iss ing Appe llant s’claim s fo r lackof subje ct m att er 1 0 juris dic tio n, it is undis put ed tha t wehave jurisd ict ion to re viewthe dis tri ct court’s denialof clas s cer tif

icat ion.
Fed. R. Civ. P. 23( a) st ates : 1 1 (a) Prer equis ite s. On e or mo re me mbe rs of a clas s m a y sue or be sue d as rep res enta tive par tie s on behalf of all me mbe rs o nl y i f: (1) the clas s is so num ero us that joind er of all me mbe rs is im pr act icabl e; (2) ther e are questi ons of law or fac t com mo n to the clas s ; (3) the clai ms or def ens es of the rep res enta tive par tie s are typi cal of the clai ms or def ens es of the clas s; and (4) the rep res enta tive par tie s wi ll fai rly and ade quate ly pr ote ct the inte res ts of the clas s. Fed. R. Civ. P. 23(b)( 3) st ates c las s cer tif icat ion is allow ed only if: ( 3 ) t he cour t find s that the ques tio ns of law or fac t com mo n to clas s me mb e r s pr edo mi nate over any ques tio ns aff ect ing only individual me mbe rs , and that a clas s act ion is sup erio r to othe r availabl e me thod s for fa i r ly and eff icie ntly adjudicat ing the cont rover sy. The mat ter s per tine nt to thes e find ings inclu de: (A) the clas s me mbe rs ’ inte res ts in individual ly c ontr ollin g the pr os ecut ion or def ens e of se par ate act ions ; (B) the exten t and natur e o f a n y l itigat ion conc erni ng the cont rover sy alre ady begun by or agains t clas s me mbe rs ; (C) the des irabi lity or unde sir abilit y of conc entr ating the liti gation of the clai ms in the par tic ular for um; and(D) t he lik ely dif fic ulti esinm anaging a c las s act ion. 19 Case: 10-20719 Document: 00511985977 Page: 19 Date Filed: 09/13/2012Rule 23(a)(3)’s typicality threshold requirement and Rule 23(b)(3)’s

predominance and superiority requirements. Because we find that the district 1 2 court did not err in holding that Appellants failed to meet Rule 23(b)(3) predominance and superiority requirements, we do not reach Appellants’ Rule 23(a)(3) typicality challenge. 1. Scope of Rule 23 analysis To determine whether class certification is appropria t e , courts “must conduct int e n s e f

actual investigation.” Robinson v. Texas Auto. Dealers Ass’n , 387 F.3d 416, 420 (5th Cir. 2004). Notably, “ther e are n o hard and fast rules

.

. . regarding the suitability of a particular type of antitrust case for class action treatment.” Id. at 420–21 (quoting Bell Atl. Corp. v. AT&T Corp. , 339 F.3d 294, 301 (5th Cir. 2003)). Rather, “[t]h e u nique facts of each case will generally be the determining factor governing certificatio n .” Id. “The party seeking class certification bears the burden of demonstrating that the requirements of rule 23 have b een met.” O’Sullivan v. Countrywide Home Loans, Inc. , 319 F.3d 732, 737–38 (5th Cir. 2003) (citing Allison v. Citgo Petroleum Corp. , 151 F.3d 402, 408 (5th Cir. 1998)). “A district court must rigorously analyze Rule 23’s prerequisites be fore certifying a class.” Spence v. Glock, Ges.m.b.H. , 227 F.3d 308, 310 (5th Cir. 2000) (internal citation omitted). This requires an understanding of “th e relevant claims, defenses, facts, and substantive law presented in the case.” Allison , 151 F.3d at 419 (citing Castano v. Am. Tobacco Co. , 84 F.3d 734, 744 (5th Cir. 1996)). Appellants contend the district court’s Rule 23 analysis inappropriately

App ellant s do not cont es t the dis tri ct cour t’s deni a l o f R u l e 23(b )( 2) injunct ive clas s 1 2

cer tif icat ion in thei r brie fing, so we wi ll not add res s that iss ue. See Cinel v. Conni ck , 15 F.3d 1338, 1345 (5th Cir. 1994) (“An a p p e l l a n t aband ons all iss ues not rais ed and argued in its ini tialbr ief

onap pea l.” ). 20 Case: 10-20719 Document: 00511985977 Page: 20 Date Filed: 09/13/2012assessed likelihood of success on the merits. We find, however, that the district

court’s merits inquiries were appropriate for Rule 23 analysis. “[C]lass determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plainti f f ’ s c ause of action.” General Telephone Co. of Southwest v. Falcon , 457 U.S. 147, 160 (1982) (internal quotation marks and citations omitted); Oscar Privacy Equity Invs. v. Allegiance Telecom, Inc. , 487 F.3d 261, 268 (5th Cir. 2007), abrogated on other grounds by Erica P. John Fund, Inc. v. Halliburton Co. (Halliburton), 131 S. Ct. 2179 (2011) (holding that a district court “must give full and independent weight to each Rule 23 requirement, regardless of whether that requirement overlaps with the merits.”). Ultimately, the court must consider “h o w a t rial on the

me ri t s w o uld be conducted if a class were certified.” Bell Atl. , 339 F.3d at 302 (internal citations omitted). When there are disputed facts relevant to Rule 23 requirements, overlap with the merits “should not be talismanically invoked to artificially limit a trial court’s examination of the factors necessary to a reasoned determination of whether a plaintiff has met her burden of establishing each of the Rule 23 class acti o n requirements.” Castano , 84 F.3d at 744 n.17 (quoting Love v. Turlington , 733 F.2d 1562, 1564 (11 th Cir. 1984)). Appellants contend that the Supreme Cour t ’ s J u n e 6, 2011 decision in Halliburton , 131 S. Ct. 2179, precludes district courts from rendering meritsbased conclusions at the class stage. We disagree. In Halliburton , the Supreme Court does not state that merits inquiries or conclusions cannot occur, or must be ignored, in the fact-intensive Rule 23 analysis. Instead, the Supreme Court’s holding was specific to the securities fraud context in Halliburton

. 131 S. Ct. at 2183 (holding that we erred by requiring securities fraud plaintiffs to prove loss

21 Case: 10-20719 Document: 00511985977 Page: 21 Date Filed: 09/13/2012causation in order to obtain class certification). This distinction, in fact, was 1 3 expressly stated when t h e Supreme Court later observed in Wal-Mart Stores, Inc. v. Dukes that rigorous Rule 23 analysis frequently will “entail some overlap with the merits of th e p l aintiff’s underlying claim.” 131 S. Ct. 2541, 2551–52 (2011) (holding that where proof of commonality necessarily overlapped with the merits contention that defendant had engaged in a pattern or practice of discrimination, inquiry into that merits contention was appropriate for Rule 23 analysis). The Supreme Court in Wal-Mart noted that in Halliburton , plaintiffs

were required to prove a merits issue (efficient market) at class certification, “an issue they will surely have to prove again at trial in order to make out their case on the merits.” Wal-Mart , 131 S. Ct. at 2552 n.6. At the same time that Appellants argue that the district co u rt ’ s R ule 23 analysis too rigorously assessed merits issues, they separately contend that the district court’s Rule 23 analysis was not rigorous enough and flawed because the district court allegedly ignored the market definition, conspiracy, and class-wide injury opinions of their liability and damages expert, Dr. Vistnes, and failed to review the evidence and issues de novo . To support this contention, Appellants point to “the perfunctory, two-paragraph order adopting” the M&R. Appellants

c o n t e n d that because the district court’s order denying class certification doe s not list evidence reviewed by the district court, this evidence was not reviewed. We disagree. First, Dr. Vistnes’ reports were included as Exhibits 1 and 2 to Plaintiffs’

The Court expla ined that it had “neve r me ntio ned lo s s c a u s atio n as a pr eco ndit ion for 1 3 invok ing Bas i c ’s rebu ttable pr es ump tio n of reli ance ,” kn ow n as the “f raud -on -the- mar ke t” theo ry and that , ther efo re, se curitie s f r aud plai ntif

fs se ek ing clas s certif icat ion are only requ ired to pr ove com mo n ques tio ns of law or fac t relating to the char act eris tic s of an allege d mi sr epr es enta tio n, not com mo n reli ance by all clas s me mbe rs on that mi sr epr es enta tio n. Ha ll ibur ton , 131 S. Ct

. at 2185–86

. 22 Case: 10-20719 Document: 00511985977 Page: 22 Date Filed: 09/13/2012Objections to Ju dge Botley’s Memorandum and Recommendation Denying Class

Certification and were filed on December 29, 2008, after the magistrate judge’s M&R was filed on November 24, 2008, but well before the district court’s March 26, 2009 Order Denying Class Certification. The district court’s Order Denying Class Certification states, “[t]he Court has reviewed the plaintiff’s objections

.

. . .” The district court had almost three months to do so, and we find no reason to assume this review did not include the exhibits containing Dr. Vistnes’ reports that were filed with Plaintiffs’ objections. S econd, on close analysis, Appellants’ speculation that Dr. Vistnes ’ opinions were “ignored” is not supported. A review of the portions of Dr. Vistnes’ December 29, 2008 reports cited by Appellants in their brief s a n d i n their objections to the M&R reveals that cited portions of the reports contain little new quantitative analysis and restate facts already covered by Appellants and their expert, Mr. Romaine. Also, the M&R, adopted in f u l l b y the district court, 1 4 refers to portions of Dr. Vistnes’ reply report that were reviewed by Magistrate Ju d ge B otley b ef

ore h e i s sued the M&R, undercutting Appellants’ complaint th at their expert, Dr. Vistnes, did not have a chance to be heard. Third, Appellants’ contention that th e di s trict court erred by not reviewing the evidence and issues de novo is unsupported. It is only required that, “‘[a] judge of the court shall make a de novo determination of those portions o f the [m a gi s tr ate’s] report or specified proposed findings or reco m m e n d atio n s to which objection is made.’” Hernandez v. Estelle , 711 F.2d 61 9 , 6 2 0 ( 5 th Cir. 1983)

It is als o wo rthno ting thatthe evide nce thatAp pel lants r efe r to mo stin their s ubs tant ive 1 4 argum ents conc er n i n g c l ass cer tif icat ion (p res umably that wh ich they belie ve to be mo st pr obat ive) is the Cons ume r Plaint iffs’ Clas s Cert ifi cat ion Pos t- He aring Brief, inclu ding a tabl e sum mar izing expe rt tes tim ony, not the Dr

. Vist nes ’ rep ort s they cont end we re ignore d by the dis tri ct cour t. 23 Case: 10-20719 Document: 00511985977 Page: 23 Date Filed: 09/13/2012(quoting 28 U.S.C. § 636(b)(1)). 1 5 Here, the language of the district court’s order

denying class certification mirrors the statute: “The Co u rt h as reviewed the plaintiffs’ objections, the defendants’ re s p o n s e to th e p l aintif f s ’ obj e ctions, as well

as m a de a de novo review of the Memorandum and Recommendation and specified findings or recommendations to which objection is made a n d h a s otherwise reviewed the Memorandum for plain error.” 2. Rule 23(b)(3) predominance and superiority requirement analysis Rule 23(b)(3) requires a party seeking class certification to “demonstrate ‘both (1) that questions common to the class members predominate over questions affecting only individual members, an d (2) that class resolution is
superi o r t o alternative methods for adjudication of the controversy.’” Steering Comm. v. Exxon Mobil Corp. , 461 F.3d 598, 600 (5th Cir. 2006) (quoting Bell Atl. , 339 F.3d at 301). “[T]he predominance and superiority requir e m e nts are ‘far

more demanding’” than Rule 2 3 (a) (2) ’s commonality requirement. Robinson , 387 F.3d at 421 (quotin g O’Sullivan , 319 F.3d at 738)

. The predominance inquiry requires courts “to consider ‘ h o w a trial on the merits would be conducted if a class were c e rtified.’” Bell Atl. , 339 F.3d at 302 (internal citations omitted). “Considering whether ‘questions of law or fact common t o c l a ss members predominate ’ b e gi n s , of course, with the elements of the underlying cause of action.” Halliburton , 131 S. Ct. at 2184. In the 3 0

- p age M&R adopted by the district court, the magistrate judge correctly began the predominance and superiority analysis by laying out the

App ellant s’ reli ance on our dec isi on in He rna ndez to cont end t h at the dis tri ct cour t mus t 1 5 have revie we d all the evide nce in the cas e is mi sp lace d. He rna ndez involved an ord er fr om the d ist ric t court ado pting a magis trate judge’ s M& R that wa s iss ued bef ore tra nsc r i p t s o f t h e par ts of the clas s c e r t i f i c a t i o n hearing that we re objec ted to we re availabl e for the dis tri ct cour t’s r eview

. 711 F.2dat620

. H ere , App ellant s mad e n o argum ent that rele vant por tio ns of evide nce or the rec ordw ereunavailablet o J udge Ho yt at the tim e h e i ss ued hisor der

. 24 Case: 10-20719 Document: 00511985977 Page: 24 Date Filed: 09/13/2012elements of Ap p e llants’ claims and what must be shown to prove antitrust

liability in a class action context. The magistrate judge continued his Rule 23(b)(3) analysis by finding that Appellants failed to present class-wide proof of the various elements of their private antitrust claims. Ultimately, the magistrate judge concluded that individualized issues affecting each of the roughly one million purported class members nationwide would predominate

over common ones, given the lack of a national market or a nationwide conspiracy. Appellants contend that they should not h ave been required to prove national market or nationwide conspiracy at the cla s s c ertification stage because these are not required elements of their antitrust claims. Recovery under § 4 of the Clayton Act, however, requires proof of antitrust impact , w h ich in turn requires proof of the relevant market. Ala. v. Blue Bird Body Co., Inc. , 573 F.2d 309, 328 (5th Cir. 1978) (“we do not understand how the plaintiffs can make this proof [of ant i

- tr u s t impact] without examining the relevant school bus market where each individual plaintiff is located”); see Heerwagen v. Clear Channel Comms. , 435 F.3d 219, 229 (2d Cir. 2006) (holding that “a plaintiff claimin g monopolization is obligated to establish the relevant market because the power to control prices or exclude competition only makes sense with reference to a particular market”); Republic Tobacco Co. v. N. Atl. Trading Co., Inc. , 381 F.3d 717, 737 (7th Cir. 2004) (holding that “[e]conomic analysis [in anti-trust context] is virtually meaningless if it is entirely unmo o r e d from at least a rough definition of a produc t a n d g eographic market”). Because Appellants brought t h i s c a se as a nationwide class action, the recovery they seek under § 4 of th e Clayton Act requires that they show the relevant geographic market is national (i.e., that it corresponds with the geographic scope of the proposed class). See Heerwagen , 435 F.3d at 229, 2 3 5 (affirming denial of certification of national
25 Case: 10-20719 Document: 00511985977 Page: 25 Date Filed: 09/13/2012antitrust plaintiff class in part because relevant markets were lo c al and

therefore proof specific to individual class members in di fferent geographic markets would predominate). Defining the relevant market is also an element of Appellants’ § 1 Sherman Act claim. Wampler v. Sw. Bell Tel. Co . , 5 9 7 F.3d 741, 744 (5th Cir. 2010). Finally, Appellants’ nationwide conspiracy claim must be proven with common, class-wide evidence for the Rule 23(b)(3) predominance requirement to be sat i s f i e d

. Blue Bird , 573 F.2d at 321 (reversing the district court’s grant of class certification because the court wa s “ p resently unable to agree” with the district court’s conclusion that “proof of national conspiracy is a question common to the class”). The factual determinations pertaining to national market and national conspiracy, detailed in the extensive M&R, were necessary for the district court to decide whether to certify a class for Appellants’ antitrust claims. The M&R analysis applied our well- s e t tled approach set forth in Blue Bird , where the district court’s certification of a national class was in fact reverse d b e c a use “neither the products involved nor the purchasers appear t o b e standardized.” 573 F.2d at 322. In Blue Bird , while recognizing that antitrust price-fixing cases

are particularly suitable for class actio n tre at m e nt , w e det er min e d that plaintiffs failed to prove that common issues of law or fact predominated over individual issues because the proposed national class included different s i zes of buyers operating under differen t conditions in various regions throughout the United States and the products involved, school bus bodies, were marketed under different arrangements at different times. Id. at 321–23. Following our analysis in Blue Bird , the M&R here noted that caskets may be sold separately or as part of a bundled package; buyers may purchase caskets either on a “pre-need” basis (before death) or “at-need” basis; c onsum er casket preferences vary by region, r e l i gi o n , ethnicity, age, and community tradition;
26 Case: 10-20719 Document: 00511985977 Page: 26 Date Filed: 09/13/2012prices vary signi f i c antly across geographic markets and even within the same funeral home chain; and caskets are generally sold and marke t e d l o c ally. Specifically, Ap pellees’ expert, Dr. Sibley, testified “that most consumers shop for caskets locally; ICDs rarely ship p e d their products out of state; ICDs generally sold and advertised locally; and ICDs did not consider internet prices in setting their own prices.” The M&R also noted the differences in marketing arrangements between funeral home defendants (“FHDs”), observing that some FHDs offer package discounts for caskets and funeral services but other do not, that n o t a l l locations require the purchase of a casket, and that the package discounts vary among locations. Appellants attempt to distinguish the instant

case from Blue Bird by contending that we denied class certification in Blue Bird because the Blue Bird plaintiffs planned “to proceed state by state and prove by varying evidence fifty different price-fixing conspiracies.” Here, however, the magistrate judge found Appellants’ evidence to be similarly localized, stating that “[p]laintiffs fail to explain how statements made by one association in one area of the country equates to a nationwide conspiracy.” Appellants also rely on United States v. Grinnell Corp. , 384 U

. S

. 5 63 (1996), to show that “the Supreme Court flatly rejected the argument

. . . that localized sales activity defeated [the] key features of national markets.” This reliance, however, is misplaced. In Gr i n n ell , the Supreme Court affirmed a finding of national market where a company that s up p li es fire and burglar alarm services had national operations, a national schedule of prices, rates and terms, national contracts, and national agreements with competitors, even though the
company could sell its product only to local customers. 384 U.S. at 575–76. I n contrast, here the evidence show s t hat (1) the prices FHDs charged were not national and instead varied considerably by funeral home; (2) each of the FHDs and independent funeral homes have different contracts w i t h Batesville and
27 Case: 10-20719 Document: 00511985977 Page: 27 Date Filed: 09/13/2012with consumers; and (3) that marketing strategies vary greatly among FHDs.

See Heerwagen , 435 F.3d at 230 (distinguishing Grinnell b y noting that there

was no evidence that Heerwagen defendants sold products pursuant to national contracts or marketed products on a national basis). Furthermore, Grinnellis distinguishable from the instant case because the Grinnell defendants had nearcomplete (87%) control of the industry. 384 U.S. at 571. Here, FHDs own less than 10% of funeral homes in the United States and Batesville sells only 45% of caskets in the United States. This court has repeatedly followed the Blue Bird analysis employed by the magistrate judge in the M&R adopted by the district

cour t

. Se e Robinson , 387 F.3d at 419, 422 (reversing a district court’s certification of a plaintiff class consisting of millions of consumers who had purchased auto mobiles in Texas and been charged a Vehicle Inventory Tax); Bell Atl. , 339 F.3d at 296, 302–03 (affirming the denial of certification of two plaintiff classes allegedly injured by defendants’ r e f u s a l to permit passage of caller ID data across its long-distance telephone network). Ap p ellants contend separately that the district court “ignored” the evidence of national ma rk e t and nationwide conspiracy presented by their expert

. As endorsed by the district court, the magistrate judge here found,

16 “[Appellees’ e x p e rt ’ s] opinions to be well-reasoned and supported by concise reliable testimony as to why the correct geographic market is localized and not

Sim ilarly, App ellants a ssert th at the di strict cour t err oneo usl y rejec ted and fai led ade quate ly 1 6 to dis cus s thei r expe r t ’ s p rof fer ed com mo n me thod ology for calc ulati ng clas s me mbe rs ’ dam ages
. App ellant s do not dis put e that a cour t mus t find a com mo n me thod ology for
com put ing clas s- wi de dam ages in ord er to cer tif y a clas s. Bel l Atl

. , 339 F.3d at 304; Blue Bir d , 573 F.2d at 317; Piggly Wiggl y , 100 F. App ’x at 297 (“The nece ss ity of calc ulati ng dam ages on an individualbasis , by its elf, can be ground s for not certi fying a clas s. ”)

. Ho we ver, a dis tri ct cour t is not obligat ed to dis cus s or acc ept App ellant s’ e xp e r t ’ s pr off ere d com mo n dam ages for mul a. See Piggly Wiggl y , 100 F. App ’x at 299 (af fir mi ng a deni al of clas s cer tif icat ion des pit e the plai ntif

fs ’ com plai nts that the dis tri ct cour t fai led even to dis cus s thei r expe rt’ s view that clas s me mbe rs ’ dam agesc ouldbec alcul atedina st raight for wa rdm anner). 28 Case: 10-20719 Document: 00511985977 Page: 28 Date Filed: 09/13/2012nationwide as w e ll as why each claim is not susceptible to class-wide proof.

[Appellees’ expert] supported his testimony with references to analytical data and other specialized work which he has performed as an economist.” (Notably, the testimony of Appellees’ expert, Dr. Sibley, at the class certification hearing

was extensive, covering over 150 pages of the certification hearing transcript.) In contrast, the magistrate judge found “[Appellants’ expert’s] opinions [were] based on speculation and guesswork, c a u s i n g his testimony to be unreliable.” The magistrate judge explained tha t t his is why he gave “less weight to [Appellants’ expert’s] opinions.” Most tellingly, the M&R is explicit that Appellants’ expert testimony and documentary support wer e t h o roughly considered yet were found to contain “mischaracterizations,” “overstatements,”

as well as “references to surveys created by third-parties with no connection to the Funeral Home Defendants.” Regardless, a district court does “not abuse its discretion in failing to give the expert’s view more discussion or credence.” Piggly Wiggly Clarksville, Inc. v. Interstate Brands Corp. , 100 F. App’x 29 6 , 2 9 9 (5th Cir. 2004) (unpublished). In sum, the district court is given great discretion in certifying a class, and the district court’s adoption of the M&R in this case does not amount to an abuse of that discretion. CONCLUSION We REVERSE and REMAND the district court’s dismissal for lac k of subject matter jurisdiction of the claim for attorneys’ fees and costs, AFFIRM the district court’s dismissal of Consumer Appellants’ and FCA’s injunctive relief claims for lack of subject matter jurisdiction, and AFFIRM the district court’s denial of class certification

.

29 Case: 10-20719 Document: 00511985977 Page: 29 Date Filed: 09/13/2012EDITH BROWN CLEMENT, Circuit Judge, concurring in part and dissenting

in part. Although I agre e with the majority holding affirming the district court’s denial of class certification, I do not agree w e h av e j u risdiction to reach that issue. Because the plaintiffs h av e r e c e iv e d all they are entitled to, this case is moot with re s pect to plaintiffs’ claims for statutory attorneys’ fees. As the majority correctly observes, the plaintiffs also lack standing to pursue injunctive relief. Consequently, I respectfully DISSENT from Sectio n A 1 and Section B and CONCUR in Sections A2 and A3. STANDARD OF REVIEW Defendants successfully moved to dismiss in the di s trict court due to a lack of subject-matter jurisdiction. We review the factual findings of the trial court for clear error and the legal conclusions de novo . MDPhysicians & Assocs. v. State Bd. of Ins. , 957 F.2d 178, 181 (5th Cir. 1992). Plaintiffs are “required to prove the existence of subject-matter jurisdiction by a preponderan c e of the evidence.” Middle S. Energy, Inc. v. City of New Orleans , 800 F.2d 488, 490 (5th Cir. 1986). DISCUSSION The facts and procedural history are u ni que and complex. Plaintiffs concede that they are no longer seeking damages b u t a re instead seeking only statutory att o r n e y s ’ fees. At this point in the litigation, three things are abundantly clear. First, the named plaintiffs have r e c e iv ed well over their claimed treble damages through the Stewart Settlement. Second, the only thing that can be gained in continuing this litigation is attorneys’ fees and costs, which plaintiffs’ attorneys admit will not go to the plaintiffs themselves. And third, any trial to award attorneys’ fees and costs would only exponentially increase the attorneys’ fees in question—with no more awarded to the plaintiffs.
30 Case: 10-20719 Document: 00511985977 Page: 30 Date Filed: 09/13/2012Standing is a constitutional requirement under Article III. See Fla.

Contractors v. Jacksonville, 508 U.S. 656, 663 (1993). “Mootness is the doctrine of standing in a time frame. The requi s i te personal interest that must exist at the commencement of the litigation (stan di ng) must continue throughout its existence (mootness).” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980). In other words, a party must have standing at all points in the litigation to continue to litigate the case, or else it becomes moot. To have Article III standing a plaintiff must show an “injury in fact” and “must have a personal stake in the outcome.” Lujan v. Defenders of Wild life , 504 U.S. 555 (1992) (internal quotation marks omitted). To avoid mootness, the plaintiffs’ personal stake must continue throughout the litigation. Envtl. Conservation Org. v. City of Dallas , 529 F.3d 519, 524-25 (5th Cir. 2 008). Here, plaintiffs cannot demonstrate any personal stake in the c o ntinuance of the litigation following the Stewart Settlement because they have none. Their claimed damages have been met multiple times over by the Stewart Settlement. The case, as it relates to the plaintiffs, is moot because t h e i r i nj u ry has been remedied. The Supreme Court has previously stated that “a plaintiff cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing

s u i t

. ” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107-08 (19 9 8)

. T h e pl aintiffs’ attorneys’ argument for continuing this case for fees is nearly identical to that which was rejected in Steel Co., where the Court ruled that attempting to recoup statutory costs was not enou gh t o c o n fer standing. In that case, the
money recovered would have gone to the United States Treasury, whereas here,
any further money recovered would go t o t he attorneys. That distinction is of little merit because the Court has already stated that an “interest in attorney’s

31 Case: 10-20719 Document: 00511985977 Page: 31 Date Filed: 09/13/2012fees is

. . . insufficient to create an Article III case or controversy where n one

exists on the merit s o f the underlying claim.” Lewis v. Cont’l Bank Corp ., 494 U.S. 472, 480 (1990) (citing Diamond v. Charles , 476 U.S. 54, 70-71 (1986)). To have a case or controversy, “[t]he litigation must give the plaintiff some other benef i t b e sides reimbursement of costs that are a byproduct of the litigation itself.” Steel Co . , 5 2 3 U .S. at 107. Where “the only concrete interest in the controversy has terminated, reasonable caution is needed to be sure that mooted litigation is not pressed forward, and unnecessary judicial pronouncements

. . . obtained, solely in order to obtain reimbursement of sunk costs. ” Lewis , 494 U.S. at 480 (emphasis added). Although there is no Supreme Court precedent dealing with this issue in the context o f a Clayton Act violation, the plaintiffs bear the burden of demonstrating that the litany of Supreme Court cases on similar statutory costs and attorneys’ fees are inapplicable. They fail to do so. Their strongest argument for continuing with this litigation is a misreading of a prior case in this circuit, Sciambra , which sat in a markedly di f f e r e nt procedural posture from the case

n o w b e f o r e us. Sciambra v. Graham News , 892 F.2d 411 (5th Cir. 1990). Sciambra dealt with statutory costs and attorneys’ fees under the Clayton Act, but the court had already found antitrust liability against the defendants th r o u gh a default judgment. Since liability was already established, statutory attorne y s ’ f

e e s were awarded. Despite arguments to the contrary by the plaintiffs a n d the majority, Sciambra is not controlling of the outcome of this

case. What the attorneys he r e request is completely different from Sciambra b ecause liability, and the right to be awarded attorneys’ fees, has yet t o b e ascertained. To be clear, the plaintiffs’ attorneys are not asking for a hearing to de t e r m ine the amount of their fees, a perfectly reasonable request. They are

32 Case: 10-20719 Document: 00511985977 Page: 32 Date Filed: 09/13/2012asking for a trial to determine liability itself, and therefore any right they may

or may not have to be awarded fees in the first place. Unlike in Sciambra , here, the attorneys ask to hold a trial that will involve thousands of attorneys’ hours, exorbitant costs, and an untold amount of judicial expense, all t o determine whether or not the attorneys can get paid more than they have already

r e c e ived—with the result having zero impact on the plaintiffs themselves o n e way or another. The majority rests much of its argument on the fact that statutory attorne y s ’ f

e e s are part of the tripartite scheme created by the Clayton Act. While this is certainly a true characterization of the Clayton Act, and would give plaintif f s m an datory attorn ey s ’ f e e s where liability was determined, the majority overlooks the clear limit of any act of Congress including the Clayton Act—the Constitution. Congress cannot confer standing on the p l a i ntiffs and their attorneys outside the bounds of Article III. It is a xi o m atic that Article III requires that federal courts may only d e c i d e actual cases or controversies and the Supreme Court has clearly established that attorneys’ fees—a byproduct of litigation—are “insufficient to create an Article III case or controversy.” Lewis , 494 U.S. at 480. If the majority is right, and the Clayton Act requires a trial to determine liability in order to award statutory fees, then as applied, the Act is unconstitutional because it exceeds Congress’ power. T h e p l a i n t i ffs h a v e n o personal stake in the outcome of this litigat i o n . T h e case filed on plaintiffs’ behalf is moot and the plaintiffs’ attorneys have no indepe n dent standing to continue the suit

. Any attempt to confer such standing on them exceeds the constitutional limits set by Article III. Unable to point to one Supreme Court case that supports this request for

a trial solely for attorneys’ fees, and therefore not able to meet their burden to demonstrate jurisdiction by a pre p o n derance of the evidence, the plaintiffs’
33 Case: 10-20719 Document: 00511985977 Page: 33 Date Filed: 09/13/2012attorneys rest their argument on a warped notion of judicial efficiency under the

theory that dismissing this case will deter future settlements. Although such a policy consideration is essentially irrelevant to the constitutional issue of Article III justiciability, the majority adopts this reasoning whole, all while ignoring the multitude of other policy rationales that counsel aga i n s t l etting this suit go forward merely to secure an award of additional attorneys’ fees. The most damning argument against the plaintiffs’ the o ry i s that, even after all remedies and recovery hav e b een provided by the settlement to plaintiffs, the plaintiffs’ attorneys will continue racking up atto r n e ys’ fees for their pe r s o nal reimbursement all in an effort to find liability and recoup their spent and on-going costs, with nothing more to be gained for their clients. Once removed from the attorney-client relationship, the lawyers could litigate this

c a s e unchecked by any responsibility to represent their clients’ interests

. T h e attorneys here—devoid of the need to placate their clients’ in t e r e s t s o r heel at their clients’ orders—could litigate t h i s i s s ue unfettered in pursuit of their personal windfall, and could continue to do so long after they have relinquished
any meaningful r e lationship with the plaintiffs. While plaintiffs’ attorneys’ litigation efforts in the quest for c o n t i n u ous ongoing and reimbursable fees would certainly help deter future anti-competitive a c t ions, it is inconceivable that this is the public benefit scheme intended by the Clayton Act or permitted by the Court’s Arti c l e III jurisprudence. One could hardly imagine a greater cudgel to be wielded by plaintiffs’ attorneys to force unmeritorious settlements than the threat of never-ending li t i g a tion by attorneys seeking attorneys’ fees for litigating a case about attorneys’ fees. CONCLUSION The majority takes great pains to try to disti n guish Supreme Court precedent. To get ar o u n d the clear parallels between this case and that
34 Case: 10-20719 Document: 00511985977 Page: 34 Date Filed: 09/13/2012precedent, the majority states in conclusory fashion that this case is different

because “the Stewart Settlement only mooted Appellant’s anti t r u st claims against Stewart, not as against appellees.” Yet the mootness of this appeal, in toto , is exactly the issue before the court and one that the majority glosses over. Because the plaintiffs have no further “personal stake i n th e o utcome” of this

case and their attorneys are seeking a trial merely for their own self-interested

“b yp ro ducts” of litigation, the Constitution and Supreme Court precedent cl e arly indicate that this case is moot. I respectfully DISSENT.

35 Case: 10-20719 Document: 00511985977 Page: 35 Date Filed: 09/13/2012