A federal appeals court has reversed a district court class action certification, citing questions about the number of uninjured class members, and indicating a higher degree of commonality among plaintiffs should be the standard for other class action proceedings.
In Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC., the Ninth Circuit held that the 28 percent of plaintiffs potentially uninjured was too many, and that the de minimis number should be closer to 5 or 6 percent.
Determining the antitrust impact on the case plaintiffs raises class definition problems, Richard Marcus, distinguished professor of law and Horace O. Coil Chair in Litigation at UC Hastings Law, told the Northern California Record.
“The message is the Ninth Circuit has signed on to the prevalent view about the judge’s responsibility in evaluating expert testimony in support of class certification,” Marcus said. “In particular in connection with class definition that may not have been injured.”
Under Rule 23 of the Federal Rules of Civil Procedure, a presumptive class must show “the questions of law or fact common to class members predominate over any questions affecting only individual members.”
In the Bumble Bee case, the appellate panel found that the lower court abused its discretion by not resolving facts in dispute prior to certifying the classes.
“A party seeking class certification must first meet Rule 23(a)’s four requirements: numerosity, commonality, typicality, and adequacy of representation,” Justice Patrick J. Bumatay wrote in the ruling. “When considering whether to certify a class, it is imperative that district courts ‘take a close look at whether common questions predominate over individual ones.’”
Numerosity, a key component in class definition, remains a key question in the Bumble Bee case.
“Defendants are saying, here is the class definition the plaintiffs proposed to use, and what defendants said was that a lot of people suffered no injury. The question is whether the class definition is overbroad,” said Marcus, who is also the lead author of Complex Litigation: Cases and Materials on Advanced Civil Procedure, about to go into its 7th edition.
Marcus noted an underlying concern is people who have no claim might get money.
“Basically, judges will have to make sure there are not too many people uninjured,” Marcus said. “As a consequence of this ruling, judges will have to do more work, plaintiffs will have to do more work to persuade judges.”