The De Minimis Standard Sleeps With the (Tuna) Fish: The En Banc Ninth Circuit Rejects a Per Se Prohibition on the Certification of Classes with Uninjured Class Members

On first look, one would possibly assume that packaged tuna, price-fixing conspiracies, and unhurt class members have little in frequent. A more in-depth have a look at the current Ninth Circuit odyssey of Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Meals LLC, nonetheless, reveals that, when mixed, these components generate necessary class motion jurisprudence.1

On 6 April 2021, a cut up three-judge panel of the Ninth Circuit adopted a rule prohibiting certification of proposed courses that comprise greater than a de minimis quantity of unhurt members.2 In line with the panel majority, a class outlined so broadly that it consists of members who haven’t suffered an damage wouldn’t fulfill predominance—i.e., frequent questions wouldn’t predominate over particular person points—as required by Fed. R. Civ. P. 23(b)(3).

A yr later, on 8 April 2022, the en banc Ninth Circuit squarely rejected the de minimis commonplace, suggesting that a class containing some, or probably even a nice many, unhurt class members could qualify for sophistication remedy.3 On this respect, the en banc courtroom’s choice seems to sanction a less-than-rigorous commonplace for sophistication certification, resembling the oft-criticized “certify now, worry later” method.4 In different respects, nonetheless, the Ninth Circuit’s choice could sign an effort by the courtroom to strengthen its class certification guidelines. Regardless of how one views the choice, the en banc courtroom’s choice in Bumble Bee Meals represents an necessary guidepost for district courts and sophistication motion practitioners in the Ninth Circuit. 


In the wake of a U.S. Division of Justice investigation into an alleged price-fixing conspiracy amongst the largest suppliers of packaged tuna in the United States, purchasers of the defendants’ merchandise filed putative class actions alleging violations of federal and state antitrust legal guidelines. After the actions have been consolidated for multidistrict litigation proceedings, the purchaser plaintiffs moved to certify three putative courses beneath Rule 23(b)(3).5

Plaintiffs argued that they may set up antitrust affect on a class foundation by way of knowledgeable testimony. Whereas plaintiffs’ consultants opined that almost all putative class members overpaid for defendants’ merchandise, and thus suffered antitrust damage, their evaluation steered that roughly 5.5% of the members didn’t undergo an damage.6 Defendants’ consultants disagreed, opining that roughly 28% of putative class members suffered no damage.7 Reasoning that the consultants’ disagreement was a deserves query for the jury, the district courtroom declined to resolve the dispute.8 The district courtroom then licensed plaintiffs’ proposed courses.   


On enchantment, a cut up three-judge panel held that the district courtroom abused its discretion by not resolving the disputed knowledgeable testimony relating to unhurt class members.The panel majority reasoned that resolving this situation was crucial as a result of predominance could be defeated if the proposed class contained greater than a de minimis quantity of unhurt class members. On that foundation, the panel reversed the certification order and remanded for the district courtroom “to resolve the factual disputes concerning the number of uninjured parties in each proposed class before determining predominance.”10

By adopting the de minimis commonplace, the Ninth Circuit moved out in entrance of many of its sister circuits with a smart, but rigorous, examine on certification of expansively outlined courses. The de minimis commonplace, nonetheless, survived for lower than 4 months, when, on 3 August 2021, the Ninth Circuit vacated the panel choice and ordered the case be reheard en banc.

On rehearing, the en banc Ninth Circuit rejected the “argument that Rule 23 does not permit the certification of a class that potentially includes more than a de minimis number of uninjured class members.”11 As a substitute, based on the Ninth Circuit, Rule 23(b)(3) requires solely that district courts take into account points associated to the damage standing (and, relatedly, Article III standing) of putative class members in the identical method courts take into account different individualized proof points for predominance functions.12 The Ninth Circuit described this method as rejecting “a per se rule” in favor of a “case-by-case” method to the remedy of unhurt class members beneath Rule 23(b)(3).13 Making use of this case-by-case method, the Ninth Circuit affirmed the district courtroom’s choice to defer decision of the dispute over the quantity of unhurt class members till trial.


The en banc Ninth Circuit additionally supplied necessary class-certification-related steerage that will present entities dealing with putative class actions with key defenses to class certification.

First, the Ninth Circuit held that a plaintiff searching for to certify a class “must prove the facts necessary to carry the burden of establishing that the prerequisites of Rule 23 are satisfied by a preponderance of the evidence.”14 In adopting a preponderance-of-the-evidence commonplace, the Ninth Circuit joined all different circuit courts of enchantment which have thought-about the situation.15

Second, the Ninth Circuit said that a plaintiff “may use any admissible evidence” to fulfill this burden.16 In help, the courtroom cited the U.S. Supreme Courtroom’s choice in Tyson Meals, Inc. v. Bouaphakeo, which it described as “explaining that admissibility of evidence at certification must meet all the usual requirements of admissibility and citing to Rules 401, 403, and 702 of the Federal Rules of Evidence.”17 Whereas the idea that proof introduced at class certification have to be admissible appears apparent, it’s nonetheless opposite to Ninth Circuit precedent. In actual fact, in 2018, the Ninth Circuit held that a district courtroom ought to take into account inadmissible proof when ruling on class certification.18 Though the Bumble Bee Meals courtroom didn’t expressly handle the relevant evidentiary commonplace, the courtroom’s dialogue could sign its willingness to restrict the use of inadmissible proof at the class certification stage in future circumstances.19


Over the previous a number of years, the Ninth Circuit’s class certification rulings have oscillated between making use of a lenient, plaintiff-friendly commonplace and requiring a strict, rigorous overview of motions for sophistication certification. The Ninth Circuit’s en banc choice in Bumble Bee Meals sends equally combined messages. Class motion defendants, nonetheless, ought to take solace in the incontrovertible fact that the Ninth Circuit seems more and more keen to make clear and, in some circumstances, strengthen its class certification guidelines. Accordingly, class motion defendants ought to proceed to problem broadly outlined courses that comprise unhurt class members and guarantee courts maintain class motion plaintiffs to their affirmative burden to show, by a preponderance of admissible proof, that their class claims are applicable for certification. 



1 See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Meals LLC, — F.3d —, 2022 WL 1053459 (ninth Cir. 2022) (“Bumble Bee Foods II”); Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Meals LLC, 993 F.3d 774 (ninth Cir. 2021) (vacated on movement for rehearing en banc in Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Meals LLC, 5 4th 950, 951 (ninth Cir. 2021)) (“Bumble Bee Foods I”).

2 See Bumble Bee Meals I, 993 F.3d at 792–93; see additionally Robert W. Sparkes, III, Something is Buzzing in the 9th Circuit: How Canned Tuna, Bumble Bees, and Uninjured Class Members Combine for an Important Class Certification Ruling, Ok&L GATES HUB (Apr. 12, 2021) (discussing the panel choice in Bumble Bee Meals I).

3 See Bumble Bee Meals II, 2022 WL 1053459, at *9–10.

4 See, e.g., id. at *22–28 (Lee, J., dissenting) (criticizing the en banc majority’s choice to “[p]unt[]” the consideration of unhurt class to an unlikely-to-occur class trial).

5 See id. at *3–4.  

6 See id. at *12, *15–19; see additionally Bumble Bee Meals I, 993 F.3d at 782–83.

7 See Bumble Bee Meals II, 2022 WL 1053459, at *12–13; see additionally Bumble Bee Meals I, 993 F.3d at 783. 

8 See Bumble Bee Meals II, 2022 WL 1053459, at *14–15, *17–19.

9 See Bumble Bee Meals I, 993 F.3d at 792–93.  

10 Id. at 794.

11 Bumble Bee Meals II, 2022 WL 1053459, at *9.

12 Id. at *8–9; see additionally id. at *9 n.12 (“Rule 23 also requires a district court to determine whether individualized inquiries into this standing issue would predominate over common questions[.]”).  

13 Id. at *9 n.13.

14 Id. at *5 (emphasis added).

15 See id. at *5 & n.6 (citing circumstances from different circuits).

16 Id. at *6. 

17 Id. (citing Tyson Meals, Inc. v. Bouaphakeo, 577 U.S. 442, 454–55 (2016)).

18 See Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1005–07 (ninth Cir. 2018) (discovering that the district courtroom abused its discretion by excluding an admittedly inadmissible declaration from the class certification evaluation).  

19 The Ninth Circuit has signaled its potential openness to require proof at class certification fulfill admissibility requirements in different current circumstances. See, e.g., Robert Sparkes, ninth Circ. Will get Harder On Specialists At Class Certification, LAW 360 (Jan. 11, 2021).   

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