Nine months after the appellate court vacated an initial decision by a panel of its judges, an en banc majority voted 9-2 to confirm the district court’s class certification ruling in the antitrust case against three of the nation’s largest tuna packagers. The decision is the latest in the price-fixing conspiracy suit that dovetailed on federal investigations, a criminal conviction, and numerous plea deals on part of defendants Bumble Bee, StarKist, and Chicken of the Sea and their executives.
The court summarized facts material to the case, including that the tuna packager defendants produced over 80% of all canned tuna sold domestically. The plaintiffs, grouped into a direct purchaser class, an indirect purchaser class, and an end purchaser class, alleged that the trio conspired from November 2010 through at least the end of 2016 to fix prices of tuna, causing them to overpay for the fish product.
The purchasers eventually moved to certify the three subclasses. In July 2019, Judge Janis Sammartino granted that request. The defendants appealed, and in April 2021, the Ninth Circuit vacated the district court’s order and remanded. Several months later, the appellate court reversed course and decided to rehear the case.
In last week’s 79-page opinion, the court chiefly considered “whether the purchasers’ statistical regression model, along with other expert evidence, is capable of showing that a price-fixing conspiracy caused class-wide antitrust impact, thus satisfying one of the prerequisites for bringing a class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure.”
The majority held in the affirmative. In so finding, the court overrode arguments that Rule 23(b)’s commonality requirement was defeated because the class “potentially includes more than a de minimis number of uninjured class members.” Instead, the court was satisfied that a common question was capable of class-wide resolution, declining the more stringent requirement that common evidence “in fact establishes that plaintiffs would win at trial.”
In dissent, Judge Kenneth K. Lee, joined by Judge Andrew J. Kleinfeld, argued that the majority was wrong to certify a class in view of the possibility that about one of every three class members suffered no injury. He said that “[p]unting this key question until later amounts to handing victory to plaintiffs because this case will likely settle without the court ever deciding that issue,” and further called the practice “neither fair nor true to the rule.”
The plaintiff classes are represented by Hausfeld, Cuneo Gilbert & Laduca LLP, and Wolf Haldenstein Adler Freeman & Herz LLP. Starkist is represented by Latham & Watkins.
