On Tuesday, the Ninth Circuit issued an opinion vacating class certification of three classes in a multi-district tuna antitrust lawsuit alleging that packaged tuna companies participated in a price-fixing conspiracy. The court determined that the Southern District of California needed to find “by a preponderance of the evidence” that predominance was met before certifying the classes.
The opinion said that the Ninth Circuit panel determined that the plaintiffs’ evidence did not establish predominance because it could have been used to establish liability in individual lawsuits. Reportedly, a district court must closely consider if common questions predominate over individual questions when considering class certification.
The court decided that the evidence did link injuries claimed by the plaintiffs to their antitrust violation allegations, and said the plaintiffs’ “use of averaging assumptions … did not defeat predominance,” however, the court determined that the district court erred because it did not resolve factual disputes and address the predominance requirement before certifying the classes.
The defendants and appellants include Bumble Bee Foods LLC, Tri-Union Seafoods LLC, Starkist Co., Dongwon Industries Co. LTD, and Thai Union Group PLC.
The proposed classes were direct purchaser plaintiffs who purchased directly from defendants; commercial food service product plaintiffs who purchased over 40 ounces of tuna products from six retailers, including Dot Foods, Sysco, US Foods, Sam’s Club, Wal-Mart, and Costco; and end payer plaintiffs who purchased less than 40 ounces from the same retailers.
According to the plaintiffs, three domestic tuna companies which produce 80 percent of packaged tuna sales, agreed among each other to fix prices, limit promotions, and exchange confidential business information. The Department of Justice has filed criminal charges with similar allegations which Bumble Bee and StarKist have since pled guilty too. Tri-Union Seafoods, which does business as Chicken of the Sea, is currently cooperating with a federal investigation according to the opinion.
The matter was argued on Oct. 9, 2020 before Judges Andrew Kleinfeld, Andrew Hurwitz, and Patrick Bumatay. Judge Hurwitz partially dissented to the opinion, which was submitted by Judge Bumatay. Hurwitz disagreed that the district court needed to find that “only a de minimis number of class members are injured” before class certification.
The matter will be sent back to the Southern District of California which will consider if predominance has been established.
Bumble Bee Foods is represented by Paul, Weiss, Rifkind, Wharton & Garrison, Tri-Union Seafoods is represented by Allen & Overy, and Starkist is represented by Latham & Watkins.