Duane Morris Class Action Review - 2023 - Report - Page 34
plaintiffs brought suit against Starkist alleging that it engaged in a price-fixing
scheme from 2011 to 2013 that led to their paying supra-competitive prices for tuna
products. The district court granted class certification. After a panel vacated the order,
the Ninth Circuit agreed to hear the case en banc and affirmed the ruling. Both parties
presented expert testimony regarding antitrust impact, but their experts disagreed as to
whether 28% of the class members could rely on the plaintiffs’ model to show injury
attributable to the alleged conspiracy. Similar to Bowerman, the Ninth Circuit addressed
the issue as one of predominance, noting 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 predominate over common
questions.” Id. at 668.
The Ninth Circuit rejected the argument that Rule 23 does not permit a district court to
certify a class that potentially includes more than a de minimis number of uninjured
class members, reasoning that Rule 23(b)(3) “requires only that the district court
determine after rigorous analysis whether the common question predominates over any
individual questions, including individualized questions about injury or entitlement to
damages.” Id. at 669. The Ninth Circuit noted that, here, the defendants did not show
that 28% of the class members were uninjured. Rather, the defendants disputed
whether class members with no or limited transactions during the benchmark period
could rely on the plaintiffs’ model. The district court was not required to resolve the
dispute; rather, if the jury were persuaded by the critique, it could conclude that the
plaintiffs had failed to prove antitrust impact on a class-wide basis, but “[i]n neither case
would the litigation raise individualized questions regarding which members of the class
had suffered an injury.” Id. at 681.
In August 2022, Starkist filed a petition with the U.S. Supreme Court asking it to strike
down the decision and to elucidate the circumstances in which a court may or may not
certify a class that includes a significant number of class members who were never
injured by the alleged harm. On November 14, 2022, however, the U.S. Supreme Court
turned down the request. Hence, the issue remains one that divides lower federal
courts, thereby fueling uncertainty on an important class action issue.
If a defendant’s showing that one or more members of the defined class did not suffer a
concrete harm can defeat class certification, such a defense is a potent tool for the
defense.
As a result, while 2022 saw the further development of the defense, corporate
defendants are likely to see continued litigation over this issue during the upcoming
year.
33
© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023