For decades, litigants embroiled in antitrust class action suits have buzzed about Rule 23's pre-dominance requirement. At the class certification stage, the issue of predominance has proven both pivotal and vexing-can a proposed class including any uninjured class members satisfy Rule 23(b)(3)? And, if so, how many uninjured class members are too many and what type of evidence is required to demonstrate the extent to which class members are uninjured? For years, circuits and courts have sharply divided on this issue.1

The Ninth Circuit recently tackled these issues in a long-running packaged tuna price-fixing case, Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC,2 ultimately rendering an en banc ruling rejecting arguments that Rule 23 would "not permit the certification of a class that potentially includes more than a de minimis number of uninjured class members," and ruling instead that the district court acted within its discretion by concluding after "rigorous analysis" that "the common question predominates over any individual questions, including individualized questions about injury or entitlement to damages."3

The defendants in Bumble Bee have now filed a petition for certiorari, opening the door for the Supreme Court to resolve the Circuit split and answer whether, and under what circumstances, the presence of uninjured class members should preclude class certification.4 Unless the Supreme Court gives additional guidance, the Ninth Circuit's en banc opinion (and contrasting views of other circuits) raise as many questions as they answer, leaving parties guessing as to how the predominance requirement will be applied in antitrust suits moving forward.

Rule 23: Setting the Stage for the Predominance Inquiry

Federal Rule of Civil Procedure 23 is simple in form and nuanced in application. In all types of cases, to proceed as a class action, plaintiffs must establish the elements of numerosity, commonality, typicality and adequacy of representation.5 In addition, "[to] obtain certification of a class action for money damages," a putative class must also establish that "the questions of law or fact common to class members predominate over any questions affecting only individual members. . . ."6

Deriving from early-twentieth century jurisprudence, Rule 23 serves to balance competing interests: permitting efficient and potentially effective group litigation while protecting defendants' Seventh Amendment due process rights to challenge evidence brought against them.7 Beginning in 2011, the Supreme Court signaled that the predominance inquiry would be the touchstone of class action cases where money damages are at issue. In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court held for the first time that lower courts must engage in a "rigorous analysis" of the prerequisites for class certification and noted that such analysis would inevitably "entail some overlap with the merits of the plaintiff's underlying claim."8 Two years later, in Comcast Corp. v. Behrend, the Supreme Court reversed class certification in an antitrust case and shed some light on what that "rigorous analysis" should entail, holding that Rule 23 requires an inquiry into damages models at the class certification stage, even if such an inquiry requires the court to consider the merits of a claim.9 Prior to Dukes and Comcast, courts routinely bifurcated discovery between class certification issues and the merits.10 Dukes and Comcast made clear that, moving forward, cases could not be so cleanly divided and that courts would be required to "probe behind the pleadings" on the certification question to determine not only common injury, but the quantum of damages as to all (or at least a large majority of the class) in one stroke.11

At the same time, however, the Supreme Court cautioned that Rule 23 does not grant a "license to engage in free-ranging merits inquiries at the certification stage."12 This framework requires courts to engage in a delicate balance-going past the pleadings, but not too far into the merits. For example, Comcast required that to satisfy predominance, a damages model would need to be capable of measuring damages on a class-wide basis; otherwise, individual damage calculations would "inevitably overwhelm questions common to the class."13

Unfortunately, neither Comcast nor Dukes provided specific guidance on whether inclusion of potentially uninjured class members would undermine or defeat predominance at the class certification stage. The question of uninjured class members is particularly important given the realworld implications of class action litigation. In theory, because injury is an element of the claim, a trial court could exclude uninjured persons or entities from the class in a damages phase that followed adjudication on the merits. In reality, however, most class actions resolve before a final adjudication on the merits, making the class certification stage critically important for litigants on both sides of the v.14

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Footnotes

1. Compare In re Lamictal Direct Purchaser Antitrust Litig., 957 F.3d 184, 194 (3d Cir. 2020) (vacating class certification because the district court failed to resolve conflicting expert opinions about whether "up to one-third of the entire class" was uninjured, "even though [that issue] touches on the merits"); In re Asacol Antitrust Litigation, 907 F.3d 42 (1st Cir. 2018) (a proposed class in which 10% of the class had not suffered any injury did not satisfy Rule 23(b)(3)); In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 252 (D.C. Cir. 2013) (proposed class with 12% uninjured class members failed to satisfy Rule 23(b)(3) with Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136 (9th Cir. 2016) (presence of non-injured class members does not defeat predominance).

2. Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 993 F.3d 774 (9th Cir. 2021) ("Bumble Bee I"), reh'g en banc granted, 5 F.4th 950 (9th Cir. 2021), rev'd, 31 F.4th 651 (9th Cir. 2022) (en banc) ("Bumble Bee II").

3. Bumble Bee II, 31 F.4th at 669.

4. Petition for a Writ of Certiorari, StarKist Co., et al. v. Olean Wholesale Grocery Coop., Inc., No. 22-131 (S. Ct. Aug. 8, 2022), https://www.supremecourt.gov/DocketPDF/22/22-131/232991/20220808152205100_2022-08-08%20Starkist%20Cert%20Petition%20with%20App.pdf.

5. Fed. R. Civ. P. 23(a).

6. Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 460 (2013) (citing Fed. R. Civ. P. 23(b)(3)).

7. See Fed. R. Civ. P. 23 advisory committee's note to 1966 amendment.

8. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011).

9. Comcast Corp. v. Behrend, 569 U.S. 27, 33-34 (2013).

10. See, e.g., In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 612-13 (8th Cir. 2011).

11. Dukes, 564 U.S. at 350-51 (internal citations omitted).

12. Amgen, 568 U.S. at 465-66.

13. Comcast, 569 U.S. at 34.

14. The question that Bumble Bee presented was whether a class with a substantial number of uninjured class members could be certified in the first instance.

Originally published by Antitrust Magazine Online.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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