Buzzing About Rules 23: Bumble Bee & The Predominance Inquiry In Antitrust Cases

• Published date: 31 October 2022
• Subject Matter: Antitrust/Competition Law, Litigation, Mediation & Arbitration, Antitrust, EU Competition , Class Actions, Personal Injury
• Law Firm: Morrison & Foerster LLP
• Author: Ms Bonnie Lau, Mary Kaiser and Lena Gankin

For decades, litigants embroiled in antitrust class action suits have buzzed about Rule 23's pre-dominance requirement. At the class certification stage, the issue of predominance has proven both pivotal and vexing-can a proposed class including any uninjured class members satisfy Rule 23(b)(3)? And, if so, how many uninjured class members are too many and what type of evidence is required to demonstrate the extent to which class members are uninjured? For years, circuits and courts have sharply divided on this issue.¹

The Ninth Circuit recently tackled these issues in a long-running packaged tuna price-fixing case, Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC^,2 ultimately rendering an en banc ruling rejecting arguments that Rule 23 would "not permit the certification of a class that potentially includes more than a de minimis number of uninjured class members," and ruling instead that the district court acted within its discretion by concluding after "rigorous analysis" that "the common question predominates over any individual questions, including individualized questions about injury or entitlement to damages."³

The defendants in Bumble Bee have now filed a petition for certiorari, opening the door for the Supreme Court to resolve the Circuit split and answer whether, and under what circumstances, the presence of uninjured class members should preclude class certification.⁴ Unless the Supreme Court gives additional guidance, the Ninth Circuit's en banc opinion (and contrasting views of other circuits) raise as many questions as they answer, leaving parties guessing as to how the predominance requirement will be applied in antitrust suits moving forward.

Rule 23: Setting the Stage for the Predominance Inquiry

Federal Rule of Civil Procedure 23 is simple in form and nuanced in application. In all types of cases, to proceed as a class action, plaintiffs must establish the elements of numerosity, commonality, typicality and adequacy of representation.⁵ In addition, "[to] obtain certification of a class action for money damages," a putative class must also establish that "the questions of law or fact common to class members predominate over any questions affecting only individual members. . . ."⁶

Deriving from early-twentieth century jurisprudence, Rule 23 serves to balance competing interests: permitting efficient and potentially effective group litigation while protecting defendants' Seventh Amendment due process rights to challenge...