American Antitrust Institute Files Amicus Brief in Tuna Case

On August 21, the American Antitrust Institute (AAI) submitted an amicus brief to the Ninth Circuit, arguing that the lower court’s granting of class certification should be affirmed in the private litigation against several major packaged seafood producers for price fixing. By appealing the decision, defendants Bumble Bee Foods LLC, Chicken of the Sea International, and StarKist, are attempting to thwart the private plaintiffs’ recovery as they argue to “push[] aggressively for limits to class treatment,” the AAI contended.

The AAI is a nonprofit organization “devoted to promoting competition that protects consumers, businesses, and society . . . through research, education, and advocacy on the benefits of competition and the use of antitrust enforcement as a vital component of national and international competition policy.” The AAI is joined by other amici curiae, the Chamber of Commerce and the Washington Legal Foundation, both of whom support the defendants.

The instant civil suit dovetails on federal criminal cases brought against the seafood companies’ executives, several of whom have been ordered to serve prison sentences. The AAI argued the defendant companies are trying to limit their liability by asking the appellate court to reverse class certification granted to direct purchasers, commercial food service purchasers, and end purchasers. The AAI asserted that on both legal and policy grounds, the leniency the defendants push for stretches credulity.

According to the AAI, Federal Rule of Civil Procedure 23’s predominance requirement asks for “common statistical evidence [that] must be sufficiently reliable to be capable of supporting a prima facie showing of impact, not that each individual plaintiff would prevail on impact on the basis of Plaintiffs’ statistical evidence.” Instead, the AAI maintains, the defendants “mistake the Rule 23 predominance inquiry for a merits inquiry into proof of antitrust impact.” Their insistence that the plaintiffs prove impact on each class member is the result of “faulty” reasoning that “cannot be reconciled with the plain meaning canon, which governs interpretation of the Federal Rules in this Circuit,” the AAI averred.

In addition, the AAI criticized the defendants’ attack on the regression analyses used to support the plaintiffs’ class certification bids. The AAI argued that “[p]roperly specified regression analyses are well-accepted and reliable statistical tools widely used in litigation settings.” The defendants’ argument, that these analyses are “categorically inappropriate because they use ‘averages’ that ‘assume away’ individual differences among class members,” is foreclosed by the Supreme Court’s holding in Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), the AAI alleged.

On policy grounds, the AAI claimed that “[w]hen guilty defendants aggressively litigate, and re-litigate complex questions involving class treatment, they subvert the Congressional scheme.” The resulting “corrosive effect… has helped turn the U.S. economy into a breeding ground for price-fixing agreements as brazen as the conspiracy uncovered in this case.” In turn, the AAI requests that the Ninth Circuit affirm the district court’s granting of class certification.

AAI is represented by its own attorneys and Cafferty Clobes Meriwether & Sprengal.