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Olean Wholesale Grocery Cooperative v. Bumble Bee Foods

After the three companies that dominate the tuna canning industry in the United States admitted to a broad price-fixing conspiracy, classes of direct and indirect purchasers of tuna sued them in federal court under state and federal antitrust laws. The district court certified three classes based on the testimony of econometric experts, stating that regression analysis showed that questions regarding the impact of the price-fixing conspiracy on the classes and the amount of damages could be determined on a classwide basis.

The defendants appealed the class certification to the Ninth Circuit, arguing that the district court had certified classes comprising members who had not been injured by the price-fixing conspiracy and that common questions therefore did not predominate. Public Citizen submitted an amicus brief in support of the class plaintiffs, explaining that the possibility that the classes include some uninjured members is not an obstacle to class certification.

On April 6, 2021, a panel of the Ninth Circuit vacated the certification and remanded for further consideration. The panel held that the plaintiffs’ statistical information could support class certification notwithstanding that that evidence suggested that up to 5.5% of the class may not have suffered injury. But the panel held that the district court should have resolved the dispute between the plaintiffs’ statistical experts and the defendants’ experts over how many members of the class were uninjured as part of its consideration of whether common issues predominated, and it stated that a class should not be certified if it comprises more than a “de minimis” number of uninjured members. Judge Hurwitz dissented in part, pointing out that the “de minimis” standard conflicts with Ninth Circuit case law and is unsupported by the text of Federal Rule of Civil Procedure 23.  Although the plaintiffs did not petition for rehearing, a Ninth Circuit on April 28, 2021, requested that the parties file briefs on whether it should grant rehearing. Public Citizen filed an amicus brief urging the court to rehear the case en banc. On August 3, 2021, the court ordered that the case be reheard en banc.

The en banc court held that when individualized questions relate to the injury status of class members, Rule 23(b)(3) requires that the court determine whether individualized inquiries about such matters would predominate over common questions. Therefore, the en banc court rejected the argument that Rule 23 does not permit the certification of a class that potentially includes more than a de minimis number of uninjured class members, and it concluded that the district court did not abuse its discretion in certifying the class.