En Banc Ninth Circuit Panel Weighs In On Class Certification Standards And The Use Of Statistical Evidence To Demonstrate Common Antitrust Impact

• Published date: 03 May 2022
• Subject Matter: Anti-trust/Competition Law, Litigation, Mediation & Arbitration, Antitrust, EU Competition , Class Actions
• Law Firm: Winston & Strawn LLP
• Author: Jeffrey J. Amato, Jeanifer E. Parsigian and Dana L. Cook-Milligan

In a highly anticipated ruling, an en banc Ninth Circuit panel affirmed a district court's certification of three classes of purchasers in a price fixing case against the three largest American producers of packaged tuna. In doing so, the Court analyzed several open issues in class certification litigation, potentially widening a divide among the circuits on key issues, providing fuel for future class litigants and new challenges for defendants facing class claims. The highlights of the Court's ruling include:

• Concluding that plaintiff has the burden of establishing that the prerequisites of Rule 23 by a preponderance of the evidence (joining other circuits holding the same);
• Holding that a district court is limited to resolving whether evidence offered in support of certification is capable of class-wide resolution, not whether the evidence in fact establishes that plaintiff will win at trial;
• Finding that even where plaintiff's evidence relating to the common question is unpersuasive or unlikely to carry plaintiff's burden of proof on the ultimate issue of liability a district court does not abuse its discretion in finding that the common question requirement had been satisfied;
• Rejecting a per se rule that Rule 23 does not permit the certification of a class that potentially includes more than a de minimis number of uninjured class members, in favor of applying Rule 23(b)(3) on a case-by-case basis.

Summary of the Ruling

An 8-2 majority of the en banc panel disagreed with a previous panel of the Ninth Circuit that had reversed the district court's grant of class certification on the ground that factual disputes over conflicting statistical expert evidence must be resolved to determine whether predominance has in fact been met. Olean Wholesale Grocery Co-op Inc v. Bumble Foods LLC, No. 19-56514 Dkt. No. 186-1 (9th Cir. Apr. 8, 2022). See prior Competition Corner post, in April 2021. Writing for the majority, Circuit Judge Sandra Ikuta held that "a district court is limited to resolving whether the evidence establishes that a common question is capable of class-wide resolution, not whether the evidence in fact establishes that Plaintiffs would win at trial." Opinion at 26. The panel held that this was proper even in the face of conflicting testimony provided by the defendants, and that a true resolution between the competing expert testimony and statistical analyses should be left for trial.

Ikuta and the majority held that all that was needed at the...