Ocean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC (Apr. 6, 2021, Ninth Circuit case no. 19-56514)
Federal Rule of Civil Procedure 23(b)(3) permits federal courts to grant class certification in lawsuits seeking monetary damages, but only where the plaintiff demonstrates, by a preponderance of the evidence, that common questions of law or fact predominate over questions affecting individual class members. This predominance requirement can be satisfied only where the plaintiff demonstrates, “‘predominantly with generalized evidence, that all (or nearly all) members of the class suffered damage as a result of” a defendant’s allegedly unlawful conduct.
The Ninth Circuit held that, if a plaintiff cannot show that a “substantial number of class members” suffered this injury, and if this injury cannot be proved or disproved through common evidence, then individualized issues will predominate because individual trials will be necessary to establish whether each class member suffered injury from the purported misconduct and “class treatment under Rule 23 is accordingly inappropriate.” Applying this standard, the Ninth Circuit reversed an order granting class certification because the district court failed to resolve a dispute between the parties’ experts over the extent to which the plaintiffs’ proposed statistical methodology for proving injury would sweep in uninjured class members. The defendants’ expert had indicated that this methodology was unable to show an injury for up to 28% of the class. The Ninth Circuit explained that, were this dispute resolved in the defendants’ favor, “the inclusion of 28% uninjured class members would ‘unquestionably’ defeat [the] predominance [requirement]” and class treatment would therefore be improper.
Although the Ninth Circuit declined to set a definitive “threshold for how great a percentage of uninjured class members would be enough to defeat predominance,” the court held the percentage of uninjured members “must be de minimis.” The court suggested that “‘5% to 6% constitutes the outer limits of a de minimis number.’”
