The status of the class of tuna buyers confirmed on appeal in the winners’ bar

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

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  • Heading 9-2 rules for plaintiffs in pricing litigation
  • Judge Kenneth Lee predicts “a tidal wave of terribly oversized classes” in dissent

April 8 – A divided U.S. Court of Appeals on Friday refused to split three classes of packaged tuna buyers in a pricing lawsuit, winning the lawyers suing in a high-profile case that could withstand expert judgment. .

The 9th U.S. District Court of Appeal, based in San Francisco, voted 9 to 2 to confirm the certification of direct buyer classes, such as national retailers and regional grocery stores, commercial food manufacturers, and individual consumers.

The defendant tuna suppliers StarKist Co and Dongwon Industries Co Ltd have asked the court in Banc to revoke the class certification orders.

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The 9th majority, led by District Judge Sandra Ikutou, stated that the court of first instance “did not abuse its discretion in thoroughly analyzing” the statistical evidence and “determining that it was not erroneous in a way that would make it impossible to provide evidence for the whole class.” . “

The majority also said they refused to accept the rule, “that a class cannot be certified if it includes more than the de minimis number of uninjured members of the class.”

Latham & Watkins partner Gregory Garre, who advocated for tuna suppliers, said, “StarKist is evaluating the court’s decision accordingly and considering its options, including a request for a Supreme Court review.”

The plaintiffs’ lawyers announced the judgment. “Because small businesses and consumers are the ones who 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-paying class.

Jonathan Cuneo of Cuneo Gilbert & LaDuca, representing a class of commercial food preparation products, said: “We are pleased with the attentive opinion.” Chris Lebsock of Hausfeld, who advocated direct buyers, did not respond immediately to a report requesting comment.

District Judge Kenneth Lee, joined by Judge Andrew Kleinfeld, said in disagreement that the court should have adopted a “de minimis” rule that the number of uninjured class members must be small until a certificate can be issued.

He said that “allowing more than the de minimis number of uninjured class members tilts the pitch” for the plaintiffs.

“I’m afraid today’s decision will set off a tidal wave of monstrously oversized classes for pressure and mining settlements,” Lee wrote.

The case is Olean Wholesale Grocery Cooperative v Bumble Bee Foods LLC, 9th U.S. Circuit Court of Appeal, no. 19-56514.

For the class of direct customers: Chris Lebsock from Hausfeld

For the commercial class: Jonathan Cuneo of Cuneo Gilbert & LaDuca

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

Defendants: Gregory Garre of Latham & Watkins

Read more:

Class lawyers defend the certification order when setting tuna prices

En banc 9th Circuit handles class certification with uninjured plaintiffs

The 9th Circuit decertifies the tuna classes that set the prices, stopping the uninjured members of the class

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