Class status of tuna buyers upheld on appeal in win for plaintiffs' bar

3 minute read

The James R. Browning U.S. Court of Appeals Building, home of the 9th U.S. Circuit Court of Appeals, is pictured in San Francisco, California February 7, 2017. REUTERS/Noah Berger

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  • 9th Circuit rules 9-2 for plaintiffs in price-fixing litigation
  • Judge Kenneth Lee in dissent predicts "a tidal wave of monstrously oversized classes"

April 8 - A divided U.S. appeals court on Friday declined to break apart three classes of purchasers of packaged tuna in price-fixing litigation, delivering a win for plaintiffs' lawyers in a closely watched case that confronted whether expert evidence could show class-wide harm.

The San Francisco-based 9th U.S. Circuit Court of Appeals voted 9 to 2 to affirm the certification of classes of direct purchasers such as national retailers and regional grocery stores, commercial food preparers and individual consumers.

Defendant tuna suppliers StarKist Co and Dongwon Industries Co Ltd had asked the en banc court to strike down the class certification orders.

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The 9th Circuit majority, led by Circuit Judge Sandra Ikuta, said the trial court "did not abuse its discretion in rigorously analyzing" statistical evidence and "determining that it was not flawed in a manner that would make it incapable of providing class-wide proof."

The majority also said it declined to adopt a rule "that a class cannot be certified if it includes more than a de minimis number of uninjured class members."

Latham & Watkins partner Gregory Garre, who argued for the tuna suppliers, said "StarKist is accordingly evaluating the court's decision and considering its options, including seeking Supreme Court review."

Plaintiffs' lawyers heralded the ruling. "Since small businesses and consumers are the ones that bear the cost of anticompetitive activities, believing in antitrust enforcement means believing in class antitrust enforcement," said Thomas Burt of Wolf Haldenstein Adler Freeman & Herz, a lawyer for the end-payer class.

Jonathan Cuneo of Cuneo Gilbert & LaDuca, representing the commercial food preparer class, said, "We are gratified by the careful opinion." Chris Lebsock of Hausfeld, who argued for direct purchasers, did not immediately respond to a message seeking comment.

In dissent, Circuit Judge Kenneth Lee, joined by Judge Andrew Kleinfeld, said the court should have embraced a "de minimis" rule that the number of uninjured class members must be small before certification can be granted.

He said "allowing more than a de minimis number of uninjured class members tilts the playing field" for plaintiffs.

"I fear that today's decision will unleash a tidal wave of monstrously oversized classes designed to pressure and extract settlements," Lee wrote.

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: Chris Lebsock of Hausfeld

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

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

For defendants: Gregory Garre of Latham & Watkins

Read more:

Class lawyers defend certification order in tuna price-fixing case

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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