Duane Morris Class Action Review - 2023 - Report - Page 47
C.
Class Certification Rulings In Antitrust Class Actions
In 2022, plaintiffs won 37% of class action motions, and defendants secured a denial in
63% of decisions (10 of 27 granted / 17 of 27 denied). Numerous class certification
decisions revolved around complex inquiries into whether common questions or
individualized issues predominated in a particular case. Rule 23(b)(3) provides that a
class action may be maintained if “questions of law or fact common to class members
predominate over any questions affecting only individual members.” The predominance
inquiry led to a number of important certification rulings based on whether or not expert
witness testimony and the economic models they employed were sound and sufficient
to demonstrate the predominance of common or individualized issues.
In 2021, a merits panel of the Ninth Circuit remanded an antitrust class action in which
the district court did not resolve the question of the number of potentially uninjured
members included in the proposed class. The Ninth Circuit panel concluded that the
predominance requirements of Rule 23(b)(3) do not permit more than a de minimis
number of uninjured class members. See Olean Wholesale Grocery Coop., Inc., et al. v.
Bumble Bee Foods LLC, 993 F.3d 774, 794 (9th Cir. 2021), reh'g en banc granted, 5
F.4th 950 (9th Cir. 2021). However, before remand, the Ninth Circuit ordered an en
banc rehearing to determine whether or not the district court erred in certifying the
classes based on meeting the predominance requirement. Olean Wholesale Grocery
Coop., Inc., et al. v. Bumble Bee Foods LLC, 31 F.4th 651, 662 (9th Cir. 2022).
Olean involved direct and indirect purchasers of packaged tuna seeking recovery for an
illegal price-fixing conspiracy against three large tuna suppliers after the suppliers
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Duane Morris Class Action Review – 2023