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
