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Class lawyers defend certification order in tuna price-fixing case

3 minute read

A worker walks past a box with a big eye tuna, caught in the South Pacific, in a fish processing facility at Pier 45 on Fisherman's Wharf in San Francisco, California May 30, 2012. REUTERS/Robert Galbraith

  • En banc 9th Circuit set to hear arguments Sept. 22
  • Plaintiffs' lawyers contend trial judge correctly certified classes
  • Latham's Gregory Garre leading defense for tuna suppliers

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(Reuters) - Three classes of purchasers of packaged tuna fish have asked the full 9th U.S. Circuit Court of Appeals to uphold a trial judge's antitrust class certification ruling, amid claims from seafood producers that there are too many uninjured members for the order to stand.

In a Sept. 10 brief, lawyers for direct tuna purchasers, consumers and commercial food preparers told the 9th Circuit that the trial court correctly granted class certification after concluding expert models and record evidence in the price-fixing case showed common impact across class members.

A three-judge 9th Circuit panel in April decertified the classes, but the en banc court vacated the opinion and agreed to take up the dispute. Oral arguments are scheduled for Sept. 22. Defendant tuna suppliers StarKist Co and Dongwon Industries Co Ltd have asked the en banc court to strike the trial judge's certification order.

Trial courts are not obligated to determine how many class members were injured before rendering a certification order, lawyers for the three plaintiff classes told the 9th Circuit. The plaintiffs' lawyers also argued the U.S. Supreme Court has "repeatedly declined" to require a showing of injury for every would-be class member before certification.

"Courts sometimes do deny certification of classes with a great number of members that were incapable of suffering the injury alleged. But that reluctance wanes when the fact of injury is disputed by the parties," the plaintiffs' lawyers wrote. "In the latter situation, the predominance inquiry turns on whether the plaintiffs' evidence is capable of ultimately proving classwide impact at trial."

Experts for the plaintiffs testified that "all or virtually all" of class members were harmed by the alleged price-fixing scheme, the plaintiffs' lawyers said in their brief.

Lawyers for the classes of tuna purchasers either did not return messages on Monday seeking comment or declined to comment. The law firm Hausfeld represents direct purchasers; Wolf Haldenstein Adler Freeman & Herz represents end-payer consumers; and Cuneo Gilbert & LaDuca represents commercial food preparers.

Latham & Watkins partner Gregory Garre, counsel to StarKist and Dongwon Industries, declined to comment.

Garre told the en banc court in a court filing on Aug. 31 that the plaintiffs' class certification bid was "based on the assumption that every direct purchaser of packaged tuna in the United States was overcharged by the same percentage."

That assumption, he said, "defies the realities of the marketplace — which is characterized by individualized negotiations and other individualized factors affecting pricing, such as retail strategies." The defendants' expert showed that 28% or more of direct-purchaser plaintiffs could be unharmed.

The U.S. Chamber of Commerce, represented by King & Spalding, is among the groups backing StarKist and Dongwon. The American Antitrust Institute and Committee to Support the Antitrust Laws are among friends of the court backing the plaintiffs.

The case is Olean Wholesale Grocery Cooperative v Bumble Bee Foods LLC, 9th U.S. Circuit Court of Appeals, No. 19-56514.

For direct purchaser class: Michael Lehmann of Hausfeld

For commercial food preparer class: Jonathan Cuneo of Cuneo Gilbert & LaDuca

For end payer class: Thomas Burt and Betsy Manifold of Wolf Haldenstein Adler Freeman & Herz

For defendants: Gregory Garre of Latham of Watkins

Read more:

StarKist, amici push standing arguments to en banc 9th Circ. in class cert challenge

En banc 9th Circuit takes up certification of classes with uninjured plaintiffs

9th Circuit decertifies tuna price-fixing classes, clamps down on uninjured class members

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