Buzzing About Rule 23: Bumble Bee & the Predominance Inquiry in Antitrust Cases

Bonnie Lau, Mary Kaiser, and Lena Gankin co-authored an article for the American Bar Association’s Antitrust Magazine Online discussing the Ninth Circuit’s panel and en banc rulings in Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, which tackled the issue of Rule 23’s predominance requirement.

According to the authors, “[a]t the class certification stage, the issue of predominance has proven both pivotal and vexing—can a proposed class including any uninjured class members satisfy Rule 23(b)(3)? And, if so, how many uninjured class members are too many and what type of evidence is required to demonstrate the extent to which class members are uninjured? For years, circuits and courts have sharply divided on this issue.” 

The Ninth Circuit “ultimately rendered an en banc ruling rejecting arguments that Rule 23 would ‘not permit the certification of a class that potentially includes more than a de minimis number of uninjured class members,’ and ruling instead that the district court acted within its discretion by concluding after ‘rigorous analysis’ that ‘the common question predominates over any individual questions, including individualized questions about injury or entitlement to damages.’”

“The defendants in Bumble Bee have now filed a petition for certiorari, opening the door for the Supreme Court to resolve the Circuit split and answer whether, and under what circumstances, the presence of uninjured class members should preclude class certification.”

Read the full article.