Case: 19-56514, 08/21/2020, ID: 11798649, DktEntry: 65, Page 1 of 35
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`No. 19-56514
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
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`OLEAN WHOLESALE GROCERY COOPERATIVE, INC., et al.,
`Plaintiffs-Appellees,
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`v.
`BUMBLE BEE FOODS LLC, et al.,
`Defendants-Appellants.
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`
`
`
`
`
`
`
`On Appeal from the United States District Court for the Southern
`District of California, No. 3:15-md-02670-JLS-MDD
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`
`
`BRIEF OF AMICUS CURIAE PUBLIC CITIZEN IN SUPPORT OF
`PLAINTIFFS-APPELLEES AND AFFIRMANCE
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`
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`
`
`
`
`Scott L. Nelson
`Allison M. Zieve
`Public Citizen Litigation Group
`1600 20th Street NW
`Washington, DC 20009
`(202) 588-1000
`
`Attorneys for Amicus Curiae
`
`
`August 21, 2020
`
`
`
`
`
`No. 19-56514
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`
`
`
`
`
`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`
`
`OLEAN WHOLESALE GROCERY COOPERATIVE, INC., et al.,
`Plaintiffs-Appellees,
`
`v.
`BUMBLE BEE FOODS LLC, et al.,
`Defendants-Appellants.
`
`
`
`
`
`
`
`
`On Appeal from the United States District Court for the Southern
`District of California, No. 3:15-md-02670-JLS-MDD
`
`
`
`
`
`
`
`BRIEF OF AMICUS CURIAE PUBLIC CITIZEN IN SUPPORT OF
`PLAINTIFFS-APPELLEES AND AFFIRMANCE
`
`
`
`
`
`
`
`
`
`
`
`
`
`Scott L. Nelson
`Allison M. Zieve
`Public Citizen Litigation Group
`1600 20th Street NW
`Washington, DC 20009
`(202) 588-1000
`
`Attorneys for Amicus Curiae
`
`
`August 21, 2020
`
`
`
`Case: 19-56514, 08/21/2020, ID: 11798649, DktEntry: 65, Page 2 of 35
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`CORPORATE DISCLOSURE STATEMENT
`Amicus curiae Public Citizen is a nonprofit, non-stock corporation.
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`It has no parent corporation, and no publicly traded corporation has an
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`ownership interest in it.
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`- i -
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`Case: 19-56514, 08/21/2020, ID: 11798649, DktEntry: 65, Page 3 of 35
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`TABLE OF CONTENTS
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`Page
`CORPORATE DISCLOSURE STATEMENT............................................. i
`INTEREST OF AMICUS CURIAE ............................................................ 1
`INTRODUCTION AND SUMMARY OF ARGUMENT ............................ 2
`ARGUMENT ............................................................................................... 7
`I.
`Class certification does not require proof that a class
`includes no uninjured members. ...................................................... 7
`II. The possibility that the DPP class may, contrary to
`plaintiffs’ evidence, comprise uninjured members does not
`defeat certification. .......................................................................... 20
`CONCLUSION ......................................................................................... 26
`CERTIFICATE OF COMPLIANCE ........................................................ 27
`CERTIFICATE OF SERVICE .................................................................. 28
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`- ii -
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases:
`Amchem Prods., Inc. v. Windsor,
`521 U.S. 591 (1997) ......................................................................... 17
`Amgen Inc. v. Conn. Ret. Plans & Trust Funds,
`568 U.S. 455 (2013) ............................................................. 14, 15, 21
`Village of Arlington Heights v. Metro. Hous. Dev. Corp.,
`429 U.S. 252 (1977) ......................................................................... 11
`In re Asacol Antitrust Litig.,
`907 F.3d 42 (1st Cir. 2018) ........................................................ 22, 23
`Bates v. UPS, Inc.,
`511 F.3d 974 (9th Cir. 2007) ......................................................... 7, 8
`Bell v. Hood,
`327 U.S. 678 (1946) ................................................................... 13, 14
`Bouaphakeo v. Tyson Foods, Inc.,
`593 F. App’x 578 (8th Cir. 2014) ..................................................... 13
`Chin v. Port Auth.,
`685 F.3d 135 (2d Cir. 2012) ............................................................. 18
`DaimlerChrysler Corp. v. Cuno,
`547 U.S. 332 (2006) ......................................................................... 12
`Denney v. Deutsche Bank AG,
`443 F.3d 253 (2d Cir. 2006) ........................................................... 7, 8
`DG ex rel. Stricklin v. Devaughn,
`594 F.3d 1188 (10th Cir. 2010) ....................................................... 12
`Frank v. Gaos,
`139 S. Ct. 1041 (2019) ............................................................... 10, 12
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`- iii -
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`Franks v. Bowman Transp. Co.,
`424 U.S. 747 (1976) ......................................................................... 19
`Gen. Inv. Co. v. N.Y. Cent. R.R.,
`271 U.S. 228 (1926) ......................................................................... 14
`Horne v. Flores,
`557 U.S. 433 (2009) ......................................................................... 11
`Ill. Brick Co. v. Illinois,
`431 U.S. 720 (1977) ....................................................................... 2, 3
`Int’l Bhd. of Teamsters v. United States,
`431 U.S. 324 (1977) ......................................................................... 19
`Kohen v. Pac. Inv. Mgmt. Co.,
` 571 F.3d 672 (7th Cir. 2009) ........................................ 12, 14, 15, 16
`Mazza v. Am. Honda Motor Co.,
`666 F.3d 581 (9th Cir. 2012) ............................................. 7, 8, 20, 21
`Miller v. Gammie,
`335 F.3d 889 (9th Cir. 2003) ............................................................. 8
`Neale v. Volvo Cars of N. Am., LLC,
`794 F.3d 353 (3d Cir. 2015) ............................................................. 12
`In re Nexium Antitrust Litig.,
`777 F.3d 9 (1st Cir. 2015) .......................................................... 12, 15
`Parko v. Shell Oil Co.,
`739 F.3d 1083 (7th Cir. 2014) ......................................................... 15
`In re Rail Freight Surcharge Antitrust Litig.,
`934 F.3d 619 (D.C. Cir. 2019) ................................................... 23, 24
`Ramirez v. TransUnion LLC,
`951 F.3d 1008 (9th Cir. 2020) ............................................... 9, 21, 25
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`- iv -
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`Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co.,
`559 U.S. 393 (2010) ......................................................................... 11
`Steel Co. v. Citizens for a Better Env’t,
`523 U.S. 83 (1998) ..................................................................... 13, 14
`Torres v. Mercer Canyons Inc.,
`835 F.3d 1125 (9th Cir. 2016) ..................................... 7, 8, 16, 20, 21
`Tyson Foods, Inc. v. Bouaphakeo,
`136 S. Ct. 1036 (2016) ......................... 6, 9, 10, 13, 15, 16, 18, 20, 25
`Vaquero v. Ashley Furniture Indus., Inc.,
`824 F.3d 1150 (9th Cir. 2016) ............................................. 24, 25, 26
`Vt. Agency of Natural Res. v. United States ex rel. Stevens,
`529 U.S. 765 (2000) ......................................................................... 12
`Vogt v. State Farm Life Ins. Co.,
`963 F.3d 753 (8th Cir. 2020) ............................................................. 2
`Warth v. Seldin,
`422 U.S. 490 (1975) ......................................................................... 13
`In re Zurn Pex Plumbing Prods. Liab. Litig.,
`644 F.3d 604 (8th Cir. 2011) ........................................................... 20
`
`
`Constitutional Provisions and Rules:
`U.S. Const., art. III ................................................... 2, 5, 6, 7, 9, 10, 11, 12
`Fed. R. Civ. P. 12(b)(1) ............................................................................. 13
`Fed. R. Civ. P. 23 .............................................................. 2, 6, 9, 14, 16, 17
`
`R. 23(b)(3) .......................................................................... 3, 6, 14, 17
`
`R. 23(c)(1)(A) .................................................................................... 16
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`R. 23(c)(1)(C) .................................................................................... 16
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`
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`Other:
`Charles Alan Wright et al.,
`Federal Practice & Procedure (3d ed. 2008) ................................... 12
`Fed. R. Civ. P. 23, Advisory Comm. Notes to 1966 amendment ............ 17
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`INTEREST OF AMICUS CURIAE1
`Public Citizen is a nonprofit consumer advocacy organization with
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`members and supporters nationwide. Public Citizen advocates before
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`Congress, administrative agencies, and courts on a wide range of issues,
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`and works for enactment and enforcement of laws protecting consumers,
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`workers, and the public. Public Citizen often represents its members’
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`interests in litigation and as amicus curiae.
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`Public Citizen believes that class actions are an important tool for
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`seeking justice where a defendant’s wrongful conduct has harmed many
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`people and resulted in injuries that are large in the aggregate, but not
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`cost-effective to redress individually. In that situation, which is present
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`in many antitrust conspiracies, a class action offers the best means for
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`both individual redress and deterrence, while also serving the
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`defendants’ interest in achieving a binding resolution of claims on a broad
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`basis, consistent with due process. Public Citizen has often participated
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`as amicus curiae in cases involving arguments that, if accepted, would
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`
`1 All parties have consented to the filing of this brief. No party’s
`counsel authored this brief in whole or in part, and no party or party’s
`counsel made a monetary contribution to fund preparation or submission
`of this brief. No person or entity other than amicus made a monetary
`contribution to preparation or submission of this brief.
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`
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`
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`impair the utility of class actions. See, e.g., Vogt v. State Farm Life Ins.
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`Co., 963 F.3d 753 (8th Cir. 2020). Here, the arguments of defendants and
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`their amici, if accepted, would demand class definitions that exclude
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`“uninjured” members at the outset of the case rather than when the
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`merits of the parties’ claims have been adjudicated. That outcome would
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`defeat many legitimate class actions that fully satisfy Article III’s case-
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`or-controversy requirement as well as the criteria for class certification
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`set forth in Federal Rule of Civil Procedure 23.
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`INTRODUCTION AND SUMMARY OF ARGUMENT
`This case involves a price-fixing conspiracy among the three
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`companies that dominate the canned tuna industry. The participants
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`admitted to the conspiracy in two criminal guilty pleas and a leniency
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`application to the United States Department of Justice by one participant
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`that blew the whistle on its coconspirators after the Department had
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`begun a criminal investigation. At issue here is the district court’s
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`certification of three classes of the conspiracy’s victims who seek damages
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`under federal and state antitrust laws: a class of entities that purchased
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`tuna directly from the conspirators (the direct purchaser plaintiffs, or
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`DPPs) and thus have standing to assert federal claims under Illinois
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`Brick Co. v. Illinois, 431 U.S. 720 (1977); and two classes of indirect
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`purchasers consisting of commercial food preparers (CFPs) and
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`consumers—referred to as end payer plaintiffs (EPPs)—asserting claims
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`under the antitrust laws of certain states that do not follow the Illinois
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`Brick rule.
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`As to each class, the district court found that certification was
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`appropriate under Federal Rule of Civil Procedure 23(b)(3) because three
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`common issues predominated over any individual issues presented by the
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`classes’ claims: (1) the existence of antitrust violations (an issue that is
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`undisputedly common to the claims of each of the three classes); (2) the
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`existence of antitrust impact on class members; and (3) damages. The
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`court further concluded that, for each class, a class action would be
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`superior to other means of resolving the claims because of the efficiency
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`and manageability advantages of resolving the issues on a classwide
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`basis and, as to the EPP class, because the damages suffered by
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`individual consumers would be too small to justify individual antitrust
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`actions.
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`For each of the three classes, the court’s determination that
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`antitrust impact and damages presented common issues rested on a
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`detailed assessment of testimony by plaintiffs’ econometric experts—
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`testimony explaining how regression analyses demonstrated that all, or
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`nearly all, of the members of each class had been injured by the price-
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`fixing conspiracy and how the extent of their damages could be
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`determined through application of the same analysis. That evidence was
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`contested by defendants’ expert testimony, but the court concluded that
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`plaintiffs’ evidence, including their experts’ rebuttal of defendants’
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`experts, was sufficient to establish the existence of common issues
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`because a finder of fact could determine that it established antitrust
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`injury and damages on a classwide basis.
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`The price-fixing conspirators’ supporting amici, the Washington
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`Legal Foundation and Chamber of Commerce of the United States,
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`caricature the district court’s findings as based on the view that a court
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`may find that injury and damages present common issues by averaging
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`the claims of injured and uninjured plaintiffs. Based on that
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`characterization, they argue that the court impermissibly certified
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`classes consisting of an amalgam of purchasers who paid higher prices as
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`a result of the price-fixing conspiracy and a large number of others who
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`suffered no injury at all. According to these amici, the inclusion of many,
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`or even any, uninjured members in a certified class is impermissible and
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`threatens Article III limits on the federal courts’ powers.
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`The class plaintiffs’ brief addresses in detail the challenges to the
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`regression analyses supporting certification and explains how those
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`analyses in fact demonstrate that all or nearly all of the members of each
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`class—and in particular the DPP class, which is the focus of the
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`defendants’ assertion that substantial numbers of class members were
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`uninjured—suffered antitrust injuries that can be quantified using
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`methodologies applicable to the entire class for purposes of damages
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`calculations. But the arguments of defendants and their amici are not
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`only wrong on the factual record here, but also wrong in their underlying
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`legal premise that, at the certification stage, class plaintiffs must
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`demonstrate that a class does not comprise uninjured members.
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`Rather, as this Court has held, class certification requires a
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`showing that the class representatives have standing, and exclusion of
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`uninjured class members, if any, need not occur until the end of the case.
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`These holdings comport with Article III principles that permit a court to
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`exercise jurisdiction over an action if any plaintiff has standing, while
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`precluding courts from granting remedies to persons who have not
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`suffered injury. The Supreme Court’s holding in Tyson Foods, Inc. v.
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`Bouaphakeo, 136 S. Ct. 1036 (2016), confirms that if, at the conclusion of
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`a case, some members of the class as originally defined prove to be
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`uninjured, their exclusion at that point satisfies the requirements of both
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`Article III and Rule 23.
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`To be sure, a determination at the time of certification that a
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`proposed class definition would include large numbers of uninjured
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`members may, under some circumstances, be a consideration supporting
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`the conclusion that common issues do not predominate or that a class
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`action would not be a superior under Rule 23(b)(3). But the circumstances
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`here would not justify such a conclusion. Nor are they comparable to the
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`circumstances at issue in decisions of other circuits that have denied
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`certification of classes involving large numbers of uninjured members.
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`Rather, here, plaintiffs presented evidence that, if credited by the
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`ultimate finder of fact, would be sufficient to support relief to the entirety
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`of the classes—and even if not fully credited would allow any class
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`members ultimately found to be uninjured to be excluded from the class
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`and from the scope of relief while still satisfying Rule 23’s requirements
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`of predominance and superiority. Certification under such circumstances
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`is entirely proper.
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`ARGUMENT
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`I.
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`Class certification does not require proof that a class
`includes no uninjured members.
`A. The assertion that a court may not certify a class that
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`comprises uninjured members is contrary to this Court’s precedents. In
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`its en banc decision in Bates v. UPS, Inc., 511 F.3d 974, 985 (9th Cir.
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`2007), the Court held that, “[i]n a class action, standing is satisfied it at
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`least one named plaintiff meets the requirements.” In Torres v. Mercer
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`Canyons Inc., 835 F.3d 1125 (9th Cir. 2016), the Court reiterated that
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`proof of injury to one named plaintiff suffices at the time of certification,
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`and that there is no requirement at that stage that the class consist
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`entirely of members who “did suffer injury, or that they must prove such
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`injury at the certification phase.” Id. at 1137 n.6.
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`As these decisions make clear, this Court’s opinion in Mazza v.
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`American Honda Motor Co., 666 F.3d 581, 596 (9th Cir. 2012), does not
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`stand for the proposition that “no class may be certified that contains
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`members lacking in Article III standing.” Chamber Br. 9 (quoting Mazza,
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`666 F.3d at 596 (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 264
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`(2d Cir. 2006))). The panel decision in Mazza, of course, could not have
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`overruled the en banc decision in Bates. See Miller v. Gammie, 335 F.3d
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`889, 899 (9th Cir. 2003) (en banc) (“[A] three-judge panel may not
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`overrule a prior decision of the court.”). And in any event, as the Court
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`subsequently explained in Torres, Mazza did not purport to announce a
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`new rule precluding certification of any class encompassing uninjured
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`members. Rather, as Torres explains, the context of both Mazza and of
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`the cited language in Denney reveals that the statement “signifies only
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`that it must be possible that class members have suffered injury.” 835
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`F.3d at 1137 n.6. It is enough that the class be defined to encompass
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`persons “exposed to” the defendants’ allegedly unlawful and injurious
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`conduct. Id. at 1137 & n.6. Thus, the possibility of “non-injury to a subset
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`of class members does not necessarily defeat certification of the entire
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`class, particularly as the district court is well situated to winnow out
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`those non-injured members at the damages phase of the litigation, or to
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`refine the class definition.” Id. at 1137.
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`The critical point by which uninjured class members (if any) must
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`be excluded from the class and from receiving a share of a judgment for
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`damages is not the time of certification, but when the class action is
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`resolved on the merits. As this Court recently held, “although only the
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`representative plaintiff need allege standing at the motion to dismiss and
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`class certification stages,” “each member of a class certified under Rule
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`23 must satisfy the bare minimum of Article III standing at the final
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`judgment stage of a class action in order to recover monetary damages in
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`federal court.” Ramirez v. TransUnion LLC, 951 F.3d 1008, 1023 (9th Cir.
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`2020). Ramirez explained that this consequence
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`flows
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`from a
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`fundamental limitation on the power of the federal courts under Article
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`III: They may provide monetary relief only to persons who have suffered
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`an injury. See id. at 1023. Ramirez expressly recognized that this
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`limitation on the Court’s ultimate remedial authority does not “alter the
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`showing required at the class certification stage or other early stages of
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`a case,” which “focuses on the representative plaintiffs.” Id. at 1023 n.6.
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`To be sure, a court that certifies a class ultimately “will need a
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`mechanism for identifying class members who lack standing at the
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`damages phase,” id., but it need not do so at the time of certification.
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`B. The Supreme Court’s decision in Tyson Foods strongly
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`supports this Court’s rule that the inclusion of uninjured members at the
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`time of certification is not impermissible, let alone a defect that goes to a
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`court’s Article III jurisdiction. In Tyson Foods, Tyson argued in its
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`petition for certiorari that a class may not be certified it if contains
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`uninjured members. Its merits brief, however, “concede[d] that ‘[t]he fact
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`that federal courts lack authority to compensate persons who cannot
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`prove injury does not mean that a class action (or collective action) can
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`never be certified in the absence of proof that all class members were
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`injured.’” 136 S. Ct. at 1049. The Supreme Court held that because Tyson
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`had abandoned the argument, “the Court need not, and does not address
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`it.” Id. Had the possible presence of uninjured class members presented
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`a jurisdictional barrier under Article III to adjudication, however,
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`Tyson’s concession would not have obviated the need to address it,
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`because a party’s failure to contest standing does not eliminate a federal
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`court’s “obligation to assure [itself] of litigants’ standing under Article
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`III.” Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019) (citations omitted). The
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`Supreme Court’s statement in Tyson Foods that it need not address the
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`argument that a class may not contain uninjured members thus reflects
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`the Court’s conclusion that the question does not go to Article III
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`jurisdiction.
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`That conclusion is consistent with longstanding Article III
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`principles. The Supreme Court has held time and again that an Article
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`III “case or controversy” exists when one plaintiff has standing. See, e.g.,
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`Horne v. Flores, 557 U.S. 433, 446–47 (2009) (“[W]e have at least one
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`individual plaintiff who has demonstrated standing .... Because of the
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`presence of this plaintiff, we need not consider whether the other
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`individual and corporate plaintiffs have standing to maintain the suit.”
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`(quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
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`252, 264 & n.9 (1977))). The same principles that apply to individual
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`claims apply to class litigation, which, “like traditional joinder, ... leaves
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`the parties’ legal rights and duties intact and the rules of decision
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`unchanged.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co.,
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`559 U.S. 393, 408 (2010) (plurality opinion).
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`Although the Supreme Court has announced this principle most
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`clearly in cases involving injunctive relief, it applies irrespective of the
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`relief sought: If a single class member’s injury suffices to create a
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`justiciable controversy over her entitlement to redress, the controversy
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`exists whether the form of redress is compensatory or preventive.
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`Standing principles apply to actions aimed at either “obtaining
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`compensation for, or preventing, the violation of a legally protected
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`right.” Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529
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`U.S. 765, 772–73 (2000). If a single plaintiff “demonstrate[s] standing …
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`for each form of relief sought,” the court has jurisdiction to resolve the
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`plaintiff’s claims. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352
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`(2006) (emphasis added); see generally 13B Charles Alan Wright et al.,
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`Federal Practice & Procedure § 3531.15 (3d ed. 2008). Accordingly, “as
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`long as one member of a certified class has a plausible claim to have
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`suffered damages, the requirement of standing is satisfied.” Kohen v. Pac.
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`Inv. Mgmt. Co., 571 F.3d 672, 676 (7th Cir. 2009); In re Nexium Antitrust
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`Litig., 777 F.3d 9, 31 (1st Cir. 2015); Neale v. Volvo Cars of N. Am., LLC,
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`794 F.3d 353, 359–60 (3d Cir. 2015); DG ex rel. Stricklin v. Devaughn,
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`594 F.3d 1188, 1197 (10th Cir. 2010). As the Supreme Court put it most
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`recently, jurisdiction over a class action depends on whether “any named
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`plaintiff has alleged [injuries] that are sufficiently concrete and
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`particularized to support standing.” Frank, 139 S. Ct. at 1046.
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`C.
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`If, as demonstrated above, the possibility that some class
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`members may not have suffered an Article III injury does not bar
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`certification, it follows that the arguable presence in the class of members
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`Case: 19-56514, 08/21/2020, ID: 11798649, DktEntry: 65, Page 20 of 35
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`who may be unable to demonstrate elements of a cause of action, such as
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`“antitrust injury” or compensable damages, likewise does not pose an
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`insuperable obstacle to maintenance of a class action. Here, for example,
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`the unquestioned presence of many injured members in each class in this
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`case indisputably presents a justiciable case. The merits question of
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`whether all of them can demonstrate entitlement to relief does not affect
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`a court’s authority to entertain their claims. See Bouaphakeo v. Tyson
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`Foods, Inc., 593 F. App’x 578, 585 (8th Cir. 2014) (opinion of Benton, J.,
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`respecting the denial of rehearing en banc) (“The failure of some
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`employees to demonstrate damages goes to the merits, not jurisdiction.”),
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`aff’d, 136 S. Ct. 1036 (2016). Jurisdiction “is not defeated” by a plaintiff’s
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`inability to demonstrate he can “actually recover.” Bell v. Hood, 327 U.S.
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`678, 682 (1946); see also Warth v. Seldin, 422 U.S. 490, 498 (1975).
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`To hold otherwise would require every damages plaintiff—in
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`individual and class-action cases—to prove her case to avoid a
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`jurisdictional dismissal under Rule 12(b)(1). And if a plaintiff who failed
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`to establish damages at trial lacked standing, the proper resolution
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`would not be judgment in defendant’s favor but a jurisdictional dismissal
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`without res judicata effect. See Steel Co. v. Citizens for a Better Env’t, 523
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`Case: 19-56514, 08/21/2020, ID: 11798649, DktEntry: 65, Page 21 of 35
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`U.S. 83, 94 (1998). Such a novel rule would waste judicial resources,
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`benefit neither plaintiffs nor defendants, and contradict the longstanding
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`recognition that failure to prove entitlement to relief requires a merits
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`judgment, not a jurisdictional dismissal. See also Gen. Inv. Co. v. N.Y.
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`Cent. R.R., 271 U.S. 228, 230–31(1926); Bell, 327 U.S. at 682; Kohen, 571
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`F.3d at 677 (“[W]hen a plaintiff loses a [damages] case [at trial] because
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`he cannot prove injury the suit is not dismissed for lack of jurisdiction.”).
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`Moreover, Rule 23 does not require a showing that all class
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`members can succeed in showing the kinds of injuries that can support
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`awards of compensable damages for the statutory or common-law claims
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`the class asserts. Such a requirement would “put the cart before the
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`horse” by conditioning certification on the plaintiffs “first establish[ing]
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`that [they] will win the fray.” Amgen Inc. v. Conn. Ret. Plans & Trust
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`Funds, 568 U.S. 455, 460 (2013). “Merits questions may be considered to
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`the extent—but only to the extent—that they are relevant to determining
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`whether the Rule 23 prerequisites for class certification are satisfied.” Id.
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`at 466. “[T]he office of a Rule 23(b)(3) certification ruling is not to
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`adjudicate the case; rather, it is to select the method best suited to
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`adjudication of the controversy fairly and efficiently.” Id. at 460
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`- 14 -
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`Case: 19-56514, 08/21/2020, ID: 11798649, DktEntry: 65, Page 22 of 35
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`(alterations omitted). Thus, “[h]ow many (if any) of the class members
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`have a valid claim is the issue to be determined after the class is
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`certified.” Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014); see
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`also Nexium, 777 F.3d at 21–22; Kohen, 571 F.3d at 677.
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`If the ultimate resolution of the case on the merits may be that some
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`class members are entitled to damages and others are not, the proper
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`course is not to deny class certification but to ensure that, at the end of
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`the day, any award of damages to the class is allocated so that class
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`members with meritorious damages claims receive their proper share
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`and those without such claims take nothing. Thus, in Tyson Foods, where
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`the parties agreed that some class members had not shown an
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`entitlement to damages, the Supreme Court rejected the assertion that
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`the class must be decertified, and instead remanded for further
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`proceedings to determine whether the award could be properly
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`apportioned. See 136 S. Ct. at 1049–50. Even the concurring opinion in
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`Tyson Foods, while expressing doubts about the ultimate outcome,
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`agreed that if there were a methodology for allocating damages only to
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`those class members who suffered damages, both certification of the class
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`Case: 19-56514, 08/21/2020, ID: 11798649, DktEntry: 65, Page 23 of 35
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`and judgment in its favor could be sustained. See id. at 1051–53 (Roberts,
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`C.J., concurring).
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`D. Conditioning certification on proof that all class members were
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`injured would create practical conundrums at odds with Rule 23’s
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`structure and purpose. Rule 23(c)(1)(A) requires certification at an “early
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`practicable time,” yet assessing class members’ injuries at certification is
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`often infeasible because their identities are unknown. For a class to
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`“include persons who have not been injured by the defendant’s conduct
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`… is almost inevitable because at the outset of the case many of the
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`members of the class may be unknown, or if they are known still the facts
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`bearing on their claims may be unknown.” Kohen, 571 F.3d at 677. This
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`phenomenon merely “highlights the possibility that an injurious course
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`of conduct may sometimes fail to cause injury to certain class members.”
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`Torres, 835 F.3dat at 1136. “Such a possibility or indeed inevitability does
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`not preclude class certification.” Kohen, 571 F.3d at 677. In addition,
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`because class certification can be revisited, see Fed. R. Civ. P. 23(c)(1)(C),
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`Rule 23’s central efficiency goals would be thwarted by requiring
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`decertification upon a showing, at any stage, that any members of a
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`certified class were uninjured.
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`Case: 19-56514, 08/21/2020, ID: 11798649, DktEntry: 65, Page 24 of 35
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`Limiting Rule 23 certification to classes where the plaintiffs could
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`prove at the time of certification that all members were injured would
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`have a particularly severe impact on the utility of class actions in antirust
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`cases. The Supreme Court has recognized that antitrust class actions are
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`often appropriate
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`for certification under Rule 23(b)(3) because
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`“[p]redominance is a test readily met in certain cases alleging consumer
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`or securities fraud or violations of the antitrust laws.” Amchem Prods.,
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`Inc. v. Windsor, 521 U.S. 591, 625 (1997) (citing Fed. R. Civ. P. 23,
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`Advisory Comm. Notes to 1966 amendment). However, antitrust
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`violations affecting large numbers of victims in similar ways—those most
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`suited to class actions—are also likely to involve small numbers of
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`potential class members who at least arguably did not suffer injury for
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`some reason. Precluding certification unless the plaintiffs could prove at
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`the outset that the class definition did not include any uninjured
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`members would sacrifice the efficiencies of class proceedings and their
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`deterrent effects on anticompetitive conduct. And given the relative ease
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`with which such class members, if they proved to exist, could be weeded
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`out at the damages phase in many cases, such curtailment of the use of
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`Case: 19-56514, 08/21/2020, ID: 11798649, DktEntry: 65, Page 25 of 35
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`class actions would serve little practical purpose except to protect
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`antitrust conspirators against the consequences of their actions.
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`Limiting class actions to cases where the plaintiffs could prove at
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`the certification stage that all class members suffered compensable
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`injuries would also threaten legitimate use of class actions to pursue
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`other types of substantive claims. Tyson Foods offers a prime example:
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`The employer followed a uniform set of practices that denied payment of
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`millions of dollars of wages required by law to hundreds of employees,
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`but the evidence indicated that a small fraction of the class might not
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`have suffered injuries entitling them to share in the damages award. See
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`136 S. Ct. at 1049–50. Had certification been precluded in such
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`circumstances,
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`the remainder of
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