The James R. Browning U.S. Cloister of Appeals Building, home of the 9th U.S. Ambit Cloister of Appeals, is pictured in San Francisco, California February 7, 2017. REUTERS/Noah Berger
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(Reuters) – The 9th U.S. Ambit Cloister of Appeals cannot accede on whether it has created a ambit breach on a analytical chic activity issue.
The court’s new en banc decision, as my Reuters aide Mike Scarcella appear on Friday, upheld the acceptance of three classes of packaged adolescent purchasers who accept accused adolescent suppliers of agreeable in a price-fixing cartel. The 9th Ambit majority in Olean Wholesale Grocery Cooperative Inc v. Bumble Bee Foods LLC banned to authorize a absolute aphorism that classes cannot be certified if they accommodate added than a scattering of plaintiffs who accept not absolutely been injured.
Defendants StarKist Co and Dongwon Industries Co Ltd had apprenticed the en banc 9th Ambit to block acceptance of a chic of buyers who purchased adolescent anon from suppliers because a aegis able assured that about 30% of the chic could not authenticate an antitrust injury.
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StarKist admonition from Latham & Watkins argued that alone issues will accordingly predominate aback so abounding chic associates may not absolutely accept overpaid. StarKist accent rulings from the 1st Circuit, in 2018’s In re: Asacol Antitrust Litigation, and the D.C. Circuit, in 2019’s In re: Rail Freight Fuel Surcharge Antitrust Litigation, in which appellate courts accept captivated that classes cannot be certified if they accommodate added than a basal cardinal of absolute chic members.
The 9th Ambit was unswayed. The Federal Rules of Civil Procedure, wrote Judge Sandra Ikuta in a majority assessment abutting by eight added board on the en banc panel, accommodate no absolute prohibition on certifying a chic that contains absolute chic members. Aphorism 23’s advantage provision, she said, “requires alone that the commune cloister actuate afterwards accurate assay whether the accepted catechism predominates over any alone questions.”
Was that captivation a breach from added ambit precedent? Judge Kenneth Lee said it was, in a bone abutting by Judge Andrew Kleinfeld. The majority, Lee wrote, had “needlessly” beggared means with the 1st and D.C. Circuits, both of which “have accustomed a de minimis rule.” The agnostic board insisted that by acute plaintiffs alone to activity aboveboard affirmation of classwide injury, the majority was added or beneath agreeable the chic activity bar “to concoct colossal classes blimp with absolute chic associates — with little abhorrence of accepting their chic acceptance bids actuality denied for abridgement of ‘predominance’ or ‘commonality.’”
Ikuta pushed aback on Lee’s affirmation in a acerb comment in the majority opinion. The court’s alarm for case-by-case assay of plaintiffs’ affirmation of a classwide injury, she said, “is constant with the admission taken by our sister circuits.” Neither the 1st Ambit in Asacol nor the D.C. Ambit in Rail Freight adopted a per se aphorism allegorical an adequate allotment of absolute chic members, Ikuta wrote. Those courts, she said, artlessly captivated that classes cannot be certified if the charge to analyze absolute chic associates would predominate over classwide issues – which, Ikuta said, is the aforementioned assay the 9th Ambit majority alleged for in the adolescent cases.
This ability assume like bald semantics. As Ikuta said, all three circuits accede that balloon board charge appoint in accurate assay of plaintiffs’ affirmation of classwide abrasion and that courts charge adios acceptance of classes in which questions about alone abrasion would predominate.
So why does it amount if the 1st and D.C. Circuits accept said the cardinal of absolute chic associates charge be basal and the 9th Ambit focused instead on the activity of advantage analysis? Because there’s a acceptable adventitious that StarKist will ask the U.S. Supreme Cloister to analysis the 9th Circuit’s cardinal – and one of the best means to actuate the justices to booty a case is to alarm on the cloister to boldness a ambit split.
Defense admonition Gregory Garre of Latham said in a account on Friday that the aggregation is because a Supreme Cloister petition. In a aftereffect email account to me on Monday, Garre was added declarative: “The actual accent of the affair accompanying with the accustomed ambit battle makes this case a acute applicant for Supreme Cloister review.”
Tuna plaintiffs attorneys Christopher Lebsock of Hausfeld, Thomas Burt of Wolf Haldenstein Adler Freeman & Herz and Jonathan Cuneo of Cuneo Gilbert & LaDuca didn’t acknowledge to my email about the en banc court’s declared breach with the 1st and D.C. Circuits.
If StarKist does book a abode for certiorari, I’m assured the aggregation to altercate that the 9th Ambit has removed a axiological chic acceptance aperture that plaintiffs in the 1st and D.C. Circuits can’t canyon through. In those circuits, StarKist will acceptable assert, balloon courts charge adjudge afore certifying classes whether added than a scattering of chic associates are uninjured, but in the 9th Circuit, balloon board can leave it to juries to adjudge if able affirmation of classwide abrasion holds up or to abundant post-trial amercement affairs to edger out absolute chic members.
I should point out that the adolescent plaintiffs and their amici argued for absolutely that outcome. In their view, balloon board belief chic acceptance are declared to actuate alone if the case can be absitively on accepted evidence, not whether plaintiffs will ultimately prevail.
I additionally appetite to point out one added agenda from the 9th Circuit’s adolescent ruling. I’ve told you that StarKist and some of its amici pushed the en banc 9th Ambit to abode whether classes can be certified if every chic affiliate does not accommodated Article III continuing requirements. The majority in Friday’s cardinal said it charge not abode that freighted catechism because the plaintiffs’ affirmation of classwide antitrust appulse was acceptable to authorize continuing for every chic member.
But that wasn’t all: The en banc cloister additionally formally overruled a precedential account that has continued accustomed achievement to chic activity critics. The 9th Ambit said aback in 2012’s Mazza v. American Honda that “no chic may be certified that contains associates defective Article III standing.” That account is no best acceptable law afterwards Friday’s cardinal in the adolescent case.
That’s added acceptable account for chic activity lawyers. For now.
Read more:
Class cachet of adolescent buyers upheld on address in win for plaintiffs’ bar
StarKist, amici advance continuing arguments to en banc 9th Circ. in chic absolutely challenge
En banc 9th Ambit takes up acceptance of classes with absolute plaintiffs
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