Ninth Circuit Throws Back Tuna Price-Fixing Classes And Provides Important Guidance On Class Certification Standards, Statistical Evidence, And Uninjured Class Members

In Olean Wholesale Grocery Co-op Inc. v. Bumble Bee Foods LLC, No. 19-56514 (9th Cir. Apr. 6, 2021), the Ninth Circuit clarified several class certification issues that have been heavily in dispute in antitrust class actions for more than a decade:

• Plaintiffs must demonstrate the Rule 23 predominance requirement by a preponderance of evidence, joining precedent set in several other circuits;
• Statistical or representative evidence can be used to establish predominance;
• A more than de minimis  number of uninjured putative class members defeats predominance; and
• District courts must resolve factual disputes among competing economic statistical models before finding predominance and certifying a class.