9th Circuit Provides Key Guidance For Defendants Opposing Rule 23(b)(3) Class Actions

Key Points

• The en banc 9th Circuit clarified numerous rules applicable to class actions brought under Rule 23(b)(3) of the Federal Rules of Civil Procedure. The court's watershed decision in  Olean Wholesale Grocery v. Bumble Bee Foods will guide how courts in the 9th Circuit decide whether to certify a class, and the case may have nationwide impact.
• First, the court emphasized that, when assessing whether a common question exists, the test is whether evidence shows that a question is capable of class-wide resolution, not whether evidence establishes that plaintiffs would prevail on that question at trial.
• Next, the court held that while Rule 23 does not necessarily foreclose certification when a class potentially includes more than a de minimis number of uninjured persons, whether individualized questions about injury or damages will overwhelm common issues is a key part of the predominance analysis.