Antitrust class action plaintiffs won a battle on Tuesday, April 6, when the 9th US Circuit Court of Appeals ruled in Olean Wholesale Grocery Co-op Inc v. Bumble Bee Foods that three classes of packaged tuna fish purchasers were entitled to rely on their statistical model to establish that common issues predominated in their claims against the tuna companies.
According to Reuters, the 9th Circuit panel, Judges Andrew Kleinfeld, Andrew Hurwitz, and Patrick Bumatay – decertified the three tuna purchaser classes suing Bumble Bee, StarKist, Chicken of the Sea International, and other tuna packagers, concluding that US District Judge Janis Sammartino abused her discretion by failing to pick between the two sides’ different statistical models on classwide injury.
The two models offered wildly different hypotheses on the percentage of class members who were affected by the alleged price fixing: Plaintiffs contended that nearly 95% of tuna purchasers had suffered an antitrust injury, but defendants claimed that nearly 30% were uninjured. The 9th Circuit held that Sammartino should not have certified the class without resolving that discrepancy.
Even more significantly, the 9th Circuit staked out a clear position on the vexatious issue of class certification and uninjured class members. The appeals court explicitly held that trial judges may not certify classes that contain more than a minimal number of uninjured class members. The 9th Circuit cited similar rulings from other federal circuits in antitrust class actions, including the DC Circuit in 2019’s In re Rail Freight Fuel Surcharge Antitrust Litigation, which stated the “outer limit” is 5% to 6%. In the 1st Circuit’s 2018 decision in In re Asacol, the appeals court overturned certification of a class in which 10% of class members were potentially uninjured.
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