The U.S. Court of Appeals for the Ninth Circuit has ordered a rehearing en banc for an antitrust case concerning class action certification numbers that was decided 2-1 earlier this year.
The en banc order in Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC was issued Aug. 3
While many en banc petitions are submitted every year, only a small number are granted. En banc courts typically consist of 11 of the Ninth Circuit’s 28 judges, Richard Marcus, distinguished professor of law and Horace O. Coil chair in litigation at UC Hastings Law, told the Northern California Record.
One problematic aspect of antitrust class actions is defining who in the proposed classes have been the victims of antitrust harm.
“In an antitrust class action, it could include hundreds or thousands,” Marcus said. “Impact in antitrust cases is a really tricky subject.”
The potential for en banc review was put in motion a few weeks after the Ninth Circuit panel’s divided 2-1 ruling, when the court called for supplemental briefing to determine whether the case should be heard en banc. “The parties should specifically discuss whether Federal Rule of Civil Procedure 23(b)(3) requires a district court to find that no more than a ‘de minimis’ number of class members are uninjured before certifying a class,” the court wrote.
The 2-1 ruling – which is now vacated – had cited questions about the number of uninjured class members, and said class actions require a higher degree of commonality among plaintiffs. It had overturned the district court’s finding for the plaintiffs in the Olean case, which alleges price-fixing in the packaged tuna market.
The question of class certification has long been subject to debate, and the U.S. Supreme Court decision, TransUnion v. Ramirez, that dealt with the Article III standing could factor in the en banc proceedings.
The Ninth Circuit decision in the Olean case was handed down April 6 and included a partial dissent that cited the Ninth Circuit’s decision in TransUnion, which the Supreme Court overturned on June 25.
One issue is whether the Supreme Court's decision after the Ninth Circuit panel decision makes a difference, said Marcus, who is also the lead author of Complex Litigation: Cases and Materials on Advanced Civil Procedure, now in its 7th edition.
“It would seem that the vote to grant rehearing en banc suggests that there was a majority of the voting judges who thought this case deserves another look so you could change your mind later, but it's kind of odd and certainly one of the important things is whether the TransUnion decision of the Supreme Court should be applied to the case,” Marcus said. “That’s something the [Ninth Circuit] panel couldn’t have done.”
The Ninth Circuit court has not yet said when the en banc hearing will be held.