FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`No. 19-56514
`
`D.C. No.
`3:15-md-02670-
`DMS-MDD
`
`OPINION
`
`OLEAN WHOLESALE GROCERY
`COOPERATIVE, INC., BEVERLY
`YOUNGBLOOD, PACIFIC
`GROSERVICE, INC., DBA Pitco
`Foods, CAPITOL HILL
`SUPERMARKET, LOUISE ANN DAVIS
`MATTHEWS, JAMES WALNUM, COLIN
`MOORE, JENNIFER A. NELSON,
`ELIZABETH DAVIS-BERG, LAURA
`CHILDS; NANCY STILLER; BONNIE
`VANDERLAAN; KRISTIN MILLICAN;
`TREPCO IMPORTS AND
`DISTRIBUTION, LTD.; JINKYOUNG
`MOON; COREY NORRIS; CLARISSA
`SIMON; AMBER SARTORI; NIGEL
`WARREN; AMY JOSEPH; MICHAEL
`JUETTEN; CARLA LOWN; TRUYEN
`TON-VUONG, AKA David Ton; A-1
`DINER; DWAYNE KENNEDY; RICK
`MUSGRAVE; DUTCH VILLAGE
`RESTAURANT; LISA BURR; LARRY
`DEMONACO; MICHAEL BUFF; ELLEN
`PINTO; ROBBY REED; BLAIR HYSNI;
`DENNIS YELVINGTON; KATHY
`DURAND GORE; THOMAS E.
`WILLOUGHBY III; ROBERT FRAGOSO;
`SAMUEL SEIDENBURG; JANELLE
`ALBARELLO; MICHAEL COFFEY;
`JASON WILSON; JADE CANTERBURY;
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`No. 19-56514
`
`D.C. No.
`3:15-md-02670-
`DMS-MDD
`
`OPINION
`
`OLEAN WHOLESALE GROCERY
`COOPERATIVE, INC., BEVERLY
`YOUNGBLOOD, PACIFIC
`GROSERVICE, INC., DBA Pitco
`Foods, CAPITOL HILL
`SUPERMARKET, LOUISE ANN DAVIS
`MATTHEWS, JAMES WALNUM, COLIN
`MOORE, JENNIFER A. NELSON,
`ELIZABETH DAVIS-BERG, LAURA
`CHILDS; NANCY STILLER; BONNIE
`VANDERLAAN; KRISTIN MILLICAN;
`TREPCO IMPORTS AND
`DISTRIBUTION, LTD.; JINKYOUNG
`MOON; COREY NORRIS; CLARISSA
`SIMON; AMBER SARTORI; NIGEL
`WARREN; AMY JOSEPH; MICHAEL
`JUETTEN; CARLA LOWN; TRUYEN
`TON-VUONG, AKA David Ton; A-1
`DINER; DWAYNE KENNEDY; RICK
`MUSGRAVE; DUTCH VILLAGE
`RESTAURANT; LISA BURR; LARRY
`DEMONACO; MICHAEL BUFF; ELLEN
`PINTO; ROBBY REED; BLAIR HYSNI;
`DENNIS YELVINGTON; KATHY
`DURAND GORE; THOMAS E.
`WILLOUGHBY III; ROBERT FRAGOSO;
`SAMUEL SEIDENBURG; JANELLE
`ALBARELLO; MICHAEL COFFEY;
`JASON WILSON; JADE CANTERBURY;
`
`
`
`2
`2
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`NAY ALIDAD; GALYNA
`NAY ALIDAD; GALYNA
`ANDRUSYSHYN; ROBERT BENJAMIN;
`ANDRUSYSHYN; ROBERT BENJAMIN;
`BARBARA BUENNING; DANIELLE
`BARBARA BUENNING; DANIELLE
`GREENBERG; SHERYL HALEY; LISA
`GREENBERG; SHERYL HALEY; LISA
`HALL; TYA HUGHES; MARISSA
`HALL; TYA HUGHES; MARISSA
`JACOBUS; GABRIELLE KURDT; ERICA
`JACOBUS; GABRIELLE KURDT; ERICA
`PRUESS; SETH SALENGER; HAROLD
`PRUESS; SETH SALENGER; HAROLD
`STAFFORD; CARL LESHER; SARAH
`STAFFORD; CARL LESHER; SARAH
`METIVIER SCHADT; GREG STEARNS;
`METIVIER SCHADT; GREG STEARNS;
`KARREN FABIAN; MELISSA
`KARREN FABIAN; MELISSA
`BOWMAN; VIVEK DRAVID; JODY
`BOWMAN;VIVEK DRAVID; JODY
`COOPER; DANIELLE JOHNSON;
`COOPER; DANIELLE JOHNSON;
`HERBERT H. KLIEGERMAN; BETH
`HERBERTH. KLIEGERMAN;BETH
`MILLINER; LIZA MILLINER; JEFFREY
`MILLINER; LIZA MILLINER; JEFFREY
`POTVIN; STEPHANIE GIPSON;
`POTVIN; STEPHANIE GIPSON;
`BARBARA LYBARGER; SCOTT A.
`BARBARA LYBARGER;SCOTTA.
`CALDWELL; RAMON RUIZ; THYME
`CALDWELL; RAMON RUIZ; THYME
`CAFE & MARKET, INC.; HARVESTERS
`CAFE & MARKET,INC.; HARVESTERS
`ENTERPRISES, LLC; AFFILIATED
`ENTERPRISES, LLC; AFFILIATED
`FOODS, INC.; PIGGLY WIGGLY
`Foops,INC.; PIGGLY WIGGLY
`ALABAMA DISTRIBUTING CO., INC.;
`ALABAMA DISTRIBUTING CO., INC.;
`ELIZABETH TWITCHELL; TINA
`ELIZABETH TWITCHELL; TINA
`GRANT; JOHN TRENT; BRIAN LEVY;
`GRANT; JOHN TRENT; BRIAN LEVY;
`LOUISE ADAMS; MARC BLUMSTEIN;
`LOUISE ADAMS; MARC BLUMSTEIN;
`JESSICA BREITBACH; SALLY
`JESSICA BREITBACH; SALLY
`CRNKOVICH; PAUL BERGER;
`CRNKOVICH; PAUL BERGER;
`STERLING KING; EVELYN OLIVE;
`STERLING KING; EVELYN OLIVE;
`BARBARA BLUMSTEIN; MARY
`BARBARA BLUMSTEIN; MARY
`HUDSON; DIANA MEY; ASSOCIATED
`HUDSON; DIANA MEY; ASSOCIATED
`GROCERS OF NEW ENGLAND, INC.;
`GROCERS OF NEW ENGLAND,INC.;
`NORTH CENTRAL DISTRIBUTORS,
`NORTH CENTRAL DISTRIBUTORS,
`LLC; CASHWA DISTRIBUTING CO. OF
`LLC; CASHWADISTRIBUTING Co. OF
`KEARNEY, INC.; URM STORES, INC.;
`KEARNEY,INC.; URM STORES,INC.;
`WESTERN FAMILY FOODS, INC.;
`WESTERN FAMILY FOODS,INC.;
`
`
`
`
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`3
`3
`
`ASSOCIATED FOOD STORES, INC.;
`ASSOCIATED FOOD STORES, INC.;
`GIANT EAGLE, INC.; MCLANE
`GIANT EAGLE, INC.; MCLANE
`COMPANY, INC.; MEADOWBROOK
`COMPANY,INC.; MEADOWBROOK.
`MEAT COMPANY, INC.; ASSOCIATED
`MEAT COMPANY,INC.; ASSOCIATED
`GROCERS, INC.; BILO HOLDING,
`GROCERS, INC.; BILO HOLDING,
`LLC; WINNDIXIE STORES, INC.;
`LLC; WINNDIXIE STORES, INC.;
`JANEY MACHIN; DEBRA L. DAMSKE;
`JANEY MACHIN; DEBRA L. DAMSKE;
`KEN DUNLAP; BARBARA E. OLSON;
`KEN DUNLAP; BARBARA E. OLSON;
`JOHN PEYCHAL; VIRGINIA RAKIPI;
`JOHN PEYCHAL; VIRGINIA RAKIPI;
`ADAM BUEHRENS; CASEY
`ADAM BUEHRENS; CASEY
`CHRISTENSEN; SCOTT DENNIS;
`CHRISTENSEN; SCOTT DENNIS;
`BRIAN DEPPERSCHMIDT; AMY E.
`BRIAN DEPPERSCHMIDT; AMY E.
`WATERMAN; CENTRAL GROCERS,
`WATERMAN; CENTRAL GROCERS,
`INC.; ASSOCIATED GROCERS OF
`INC.; ASSOCIATED GROCERSOF
`FLORIDA, INC.; BENJAMIN FOODS
`FLORIDA, INC.; BENJAMIN FOODS
`LLC; ALBERTSONS COMPANIES
`LLC; ALBERTSONS COMPANIES
`LLC; H.E. BUTT GROCERY
`LLC; H.E. BUTT GROCERY
`COMPANY; HYVEE, INC.; THE
`COMPANY; HYVEE,INC.; THE
`KROGER CO.; LESGO PERSONAL
`KROGER CO.; LESGO PERSONAL
`CHEF LLC; KATHY VANGEMERT;
`CHEF LLC; KATHY VANGEMERT;
`EDY YEE; SUNDE DANIELS;
`EDY YEE; SUNDE DANIELS;
`CHRISTOPHER TODD; PUBLIX SUPER
`CHRISTOPHER TODD; PUBLIX SUPER
`MARKETS, INC.; WAKEFERN FOOD
`MARKETS, INC.; WAKEFERN FOOD
`CORP.; ROBERT SKAFF; WEGMANS
`CORP.; ROBERT SKAFF; WEGMANS
`FOOD MARKETS, INC.; JULIE WIESE;
`FOOD MARKETS,INC.; JULIE WIESE;
`MEIJER DISTRIBUTION, INC.; DANIEL
`MEIJER DISTRIBUTION, INC.; DANIEL
`ZWIRLEIN; MEIJER, INC.; SUPERVALU
`ZWIRLEIN; MEIER, INC.; SUPERVALU
`INC.; JOHN GROSS & COMPANY;
`INC.; JOHN GROSS & COMPANY;
`SUPER STORE INDUSTRIES; W LEE
`SUPER STORE INDUSTRIES; W LEE
`FLOWERS & CO INC.; FAMILY
`FLOWERS & CO INC.; FAMILY
`DOLLAR SERVICES, LLC; AMY
`DOLLAR SERVICES, LLC; AMY
`JACKSON; FAMILY DOLLAR STORES,
`JACKSON; FAMILY DOLLAR STORES,
`INC.; KATHERINE MCMAHON;
`INC.; KATHERINE MCMAHON;
`DOLLAR TREE DISTRIBUTION, INC.;
`DOLLAR TREEDISTRIBUTION,INC.;
`
`
`
`
`
`4
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`JONATHAN RIZZO; GREENBRIER
`INTERNATIONAL, INC.; JOELYNA A.
`SAN AGUSTIN; ALEX LEE, INC.;
`REBECCA LEE SIMOENS; BIG Y
`FOODS, INC.; DAVID TON; KVAT
`FOOD STORES, INC., DBA Food City;
`AFFILIATED FOODS MIDWEST
`COOPERATIVE, INC.; MERCHANTS
`DISTRIBUTORS, LLC; BROOKSHIRE
`BROTHERS, INC.; SCHNUCK
`MARKETS, INC.; BROOKSHIRE
`GROCERY COMPANY; KMART
`CORPORATION; CERTCO, INC.;
`RUSHIN GOLD, LLC, DBA The Gold
`Rush; UNIFIED GROCERS, INC.;
`TARGET CORPORATION; SIMON-
`HINDI, LLC; Fareway Stores, Inc.;
`Moran Foods, LLC, DBA Save-A-
`Lot; WOODMAN’S FOOD MARKET,
`INC.; DOLLAR GENERAL
`CORPORATION; SAM’S EAST, INC.;
`DOLGENCORP, LLC; SAM’S WEST,
`INC.; KRASDALE FOODS, INC.;
`WALMART STORES EAST, LLC; CVS
`PHARMACY, INC.; WALMART STORES
`EAST, LP; BASHAS’ INC.; WAL-MART
`STORES TEXAS, LLC; MARC
`GLASSMAN, INC.; WAL-MART
`STORES, INC.; 99 CENTS ONLY
`STORES; JESSICA BARTLING; AHOLD
`U.S.A., INC.; GAY BIRNBAUM;
`DELHAIZE AMERICA, LLC; SALLY
`BREDBERG; ASSOCIATED
`WHOLESALE GROCERS, INC.; KIM
`
`
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`5
`
`CRAIG; MAQUOKETA CARE CENTER;
`GLORIA EMERY; ERBERT &
`GERBERT’S, INC.; ANA GABRIELA
`FELIX GARCIA; JANET MACHEN;
`JOHN FRICK; PAINTED PLATE
`CATERING; KATHLEEN GARNER;
`ROBERT ETTEN; ANDREW GORMAN;
`GROUCHO’S DELI OF FIVE POINTS,
`LLC; EDGARDO GUTIERREZ;
`GROUCHO’S DELI OF RALEIGH;
`ZENDA JOHNSTON; SANDEE’S
`CATERING; STEVEN KRATKY;
`CONFETTI’S ICE CREAM SHOPPE;
`KATHY LINGNOFSKI; END PAYER
`PLAINTIFFS; LAURA MONTOYA;
`KIRSTEN PECK; JOHN PELS; VALERIE
`PETERS; ELIZABETH PERRON; AUDRA
`RICKMAN; ERICA C. RODRIGUEZ,
`Plaintiffs-Appellees,
`
`and
`
`JESSICA DECKER, JOSEPH A.
`LANGSTON, SANDRA POWERS,
`GRAND SUPERCENTER, INC., THE
`CHEROKEE NATION, US FOODS, INC.,
`SYSCO CORPORATION, GLADYS,
`LLC, SPARTANNASH COMPANY,
`BRYAN ANTHONY REO,
`
`Plaintiffs,
`
`v.
`
`
`
`6
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`BUMBLE BEE FOODS LLC; STARKIST
`CO.; DONGWON INDUSTRIES CO.,
`LTD.,
`
`Defendants-Appellants,
`
`and
`
`KING OSCAR, INC.; THAI UNION
`FROZEN PRODUCTS PCL; DEL
`MONTE FOODS COMPANY; TRI
`MARINE INTERNATIONAL, INC.;
`DONGWON ENTERPRISES; DEL
`MONTE CORP.; CHRISTOPHER D.
`LISCHEWSKI; LION CAPITAL
`(AMERICAS), INC.; BIG CATCH
`CAYMAN LP, AKA Lion/Big Catch
`Cayman LP; FRANCIS T
`ENTERPRISES; GLOWFISCH
`HOSPITALITY; THAI UNION NORTH
`AMERICA, INC.,
`
`Defendants.
`
`
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`7
`
`Appeal from the United States District Court
`for the Southern District of California
`Dana M. Sabraw, Chief District Judge, Presiding
`
`Argued and Submitted En Banc September 22, 2021
`Pasadena, California
`
`Filed April 8, 2022
`
`Before: Andrew J. Kleinfeld, Sidney R. Thomas, Susan P.
`Graber, William A. Fletcher, Ronald M. Gould, Richard A.
`Paez, Consuelo M. Callahan, Sandra S. Ikuta, Paul J.
`Watford, Michelle T. Friedland and Kenneth K. Lee,
`Circuit Judges.
`
`Opinion by Judge Ikuta;
`Dissent by Judge Lee
`
`
`
`8
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`SUMMARY*
`
`Antitrust / Class Certification
`
`The en banc court filed an opinion affirming the district
`court’s order certifying three subclasses of tuna purchasers
`who alleged that the suppliers violated federal and state
`antitrust laws. The en banc court held that the district court
`did not abuse its discretion in concluding that the purchasers’
`statistical regression model, along with other expert evidence,
`was capable of showing that a price-fixing conspiracy caused
`class-wide antitrust impact, thus satisfying one of the
`prerequisites for bringing a class action under Federal Rule of
`Civil Procedure 23(b)(3).
`
`To take advantage of Rule 23’s procedure for aggregating
`claims, plaintiffs must make two showings. First, under
`Rule 23(a), they must establish that “there are questions of
`law or fact common to the class,” as well as demonstrate
`numerosity, typicality, and adequacy of representation.
`Second, the plaintiffs must show that the class fits into one of
`three categories under Rule 23(b). To qualify for the third
`category, Rule 23(b)(3) the district court must find that
`“questions of law or fact common to class members
`predominate over any questions affecting only individual
`members.”
`
`Joining other circuits, the en banc court held that
`plaintiffs must prove by a preponderance of the evidence the
`facts necessary to carry the burden of establishing that the
`
`* This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`9
`
`prerequisites of Rule 23 are satisfied. The en banc court held
`that to prove a common question of law or fact that relates to
`a central issue in an antitrust class action, plaintiffs must
`establish that essential elements of the cause of action, such
`as the existence of an antitrust violation or antitrust impact,
`are capable of being established through a common body of
`evidence, applicable to the whole class.
`
`The en banc court held that in making the determinations
`necessary to find that the prerequisites of Rule 23(b)(3) are
`satisfied, the district court may weigh conflicting expert
`testimony and resolve expert disputes. In determining
`whether the “common question” prerequisite is met, the
`district court is limited to resolving whether the evidence
`establishes that a common question is capable of class-wide
`resolution, not whether the evidence in fact establishes that
`plaintiffs would win at trial. The district court must also
`resolve disputes about historical facts if necessary to
`determine whether the plaintiffs’ evidence is capable of
`resolving a common issue central to the plaintiffs’ claims.
`Therefore, the district court cannot decline certification
`merely because it considers plaintiffs’ evidence relating to the
`common question to be unpersuasive and unlikely to succeed
`in carrying the plaintiffs’ burden of proof on that issue. Nor
`can a district court decline to certify a class that will require
`determination of some individualized questions at trial, so
`long as such questions do not predominate over the common
`questions.
`
`The en banc court held that when individualized questions
`relate to the injury status of class members, Rule 23(b)(3)
`requires that the court determine whether individualized
`inquiries about such matters would predominate over
`common questions. Therefore, the en banc court rejected the
`
`
`
`10 OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`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.
`
`Beginning with the “DPP” class of direct purchasers of
`the tuna suppliers’ products, such as nationwide retailers and
`regional grocery stores, the panel held that in order to prevail
`on their antitrust claim, the DPP class was required to prove
`that the tuna suppliers engaged in a conspiracy (an antitrust
`violation), which resulted in antitrust impact in the form of
`higher prices paid by each member of the class, which in turn
`led to measurable damages. The question whether each
`member of the DPP class suffered antitrust impact was
`central to the validity of each of the DPP claims. The central
`questions on appeal were whether the expert evidence
`presented by the DPPs was capable of resolving this issue “in
`one stroke,” and whether this common question predominated
`over any individualized inquiry.
`
`The en banc court concluded that the district court did not
`abuse its discretion in certifying the class. The DPPs relied
`on the expert testimony and report of Dr. Russell Mangum,
`whose findings about the tuna market and tuna suppliers’
`collusive behavior, pricing correlation test, regression model,
`and robustness checks confirmed his theory that the price-
`fixing conspiracy resulted in substantial price impacts, and
`that the impact was common to the DPPs during the collusion
`period. The en banc court concluded that the district court
`did not make any legal or factual error when, in considering
`whether the DPPs’ evidence was capable of establishing
`antitrust impact for the class as a whole, the district court
`reviewed Dr. Mangum’s expert testimony and report, the
`rebuttal testimony and report by Dr. John Johnson, and
`Dr. Mangum’s reply, and then addressed the parties’ disputes.
`
`
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`11
`
`The district court thus properly concluded that Dr. Mangum’s
`pooled regression model, along with other evidence, was
`capable of answering the question whether there was antitrust
`impact due to the collusion on a class-wide basis, thus
`satisfying this prerequisite of Rule 23(b)(3).
`
`The en banc court held that the district court did not abuse
`its discretion in determining that the evidence presented by
`the DPPs proved: (1) that the element of antitrust impact was
`capable of being established class-wide through common
`proof, and (2) that this common question predominated over
`individual questions. The en banc court rejected any
`categorical argument that a pooled regression model cannot
`control for variables relating to the individual differences
`among class members. The en banc court also rejected the
`argument that, in this case, the model’s output could not
`plausibly serve as common evidence for all class members
`given the individual differences among those class members.
`The en banc court held that the district court did not err by
`failing to resolve a dispute between the parties as to whether
`28 percent of the class did not suffer antitrust impact. Rather,
`the district court fulfilled its obligation to resolve the disputes
`raised by the parties in order to satisfy itself that the evidence
`proves the prerequisites for Rule 23(b)(3), which was that the
`evidence was capable of showing that the DPPs suffered
`antitrust impact on a class-wide basis.
`
`The en banc court held that the district court also did not
`abuse its discretion in determining that the evidence
`presented by the “CFP” class of indirect purchasers of bulk-
`sized tuna products and the “EPP” class of individual end
`purchasers was capable of proving the element of antitrust
`impact under California’s Cartwright Act, thus satisfying the
`prerequisites of Rule 23(b)(3).
`
`
`
`12 OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`Dissenting, Judge Lee, joined by Judge Kleinfeld, wrote
`that the majority opinion allowed the district court to certify
`a class, even though potentially about one out of three class
`members suffered no injury. Judge Lee wrote that if
`defendants’ econometrician expert was correct that almost a
`third of the class members may not have suffered injury, then
`plaintiffs did not show the predominance of common issues
`under Rule 23(b). He wrote that because class action cases
`almost always settle once a court certifies a class, a district
`court must serve as a gatekeeper to resolve key issues
`implicating Rule 23 requirements, including whether too
`many putative class members suffered no injury, at the class
`certification stage. Further, the majority’s rejection of a de
`minimis rule, under which the number of uninjured class
`members should be de minimis, created a circuit split.
`
`COUNSEL
`
`Gregory G. Garre (argued), Samir Deger-Sen, and Shannon
`Grammel, Latham & Watkins LLP, Washington, D.C.;
`Christopher S. Yates, Belinda S. Lee, and Ashley M. Bauer,
`Latham & Watkins LLP, San Francisco, California; for
`Defendants-Appellants StarKist Co. and Dongwon Industries
`Co. Ltd.
`
`Christopher L. Lebsock (argued), Michael P. Lehmann,
`Bonny E. Sweeney, and Samantha J. Stein, Hausfeld LLP,
`San Francisco, California, for Plaintiffs-Appellees Direct
`Purchaser Plaintiff Class.
`
`Jonathan W. Cuneo (argued), Joel Davidow, and Blaine
`Finley, Cuneo Gilbert & Laduca LLP, Washington, D.C., for
`
`
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`13
`
`Plaintiffs-Appellees Commercial Food Preparer Plaintiff
`Class.
`
`Thomas H. Burt (argued), Wolf Haldenstein Adler Freeman
`& Herz LLP, New York, New York; Betsy C. Manifold,
`Rachele R. Byrd, Marisa C. Livesay, and Brittany N. DeJong,
`Wolf Haldenstein Adler Freeman & Herz LLP, San Diego,
`California; for Plaintiffs-Appellees End Payer Plaintiff Class.
`
`Corbin K. Barthold and Cory L. Andrews, Washington, D.C.,
`for Amicus Curiae Washington Legal Foundation.
`
`Ashley C. Parrish and Joshua N. Mitchell, King & Spalding
`LLP, Washington, D.C.; Steven P. Lehotsky, Jonan D. Urick,
`Daryl Joseffer, and Jennifer B. Dickey, United States
`Chamber Litigation Center; Anne M. Voigts, Quyen L. Ta,
`and Suzanne E. Nero, King & Spalding LLP, San Francisco,
`California; Kerry Perigoe, King & Spalding LLP, Los
`Angeles, California; Christopher A. Mohr, Software &
`Information Industry Association, Washington, D.C.; Jeanine
`Poltronieri, Internet Association, Washington, D.C.; for
`Amici Curiae Chamber of Commerce of the United States of
`America, Software Information Industry Association, and
`Internet Association.
`
`Randy M. Stutz, American Antitrust Institute, Washington,
`D.C.; Professor Joshua P. Davis, University of San Francisco
`School of Law, San Francisco, California; Ellen Meriwether,
`Cafferty Clobes Meriwether & Sprengal, Media,
`Pennsylvania; for Amicus Curiae American Antitrust
`Institute.
`
`
`
`14 OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`Scott L. Nelson and Allison M. Zieve, Public Citizen
`Litigation Group, Washington, D.C., for Amicus Curiae
`Public Citizen Inc.
`
`Jocelyn D. Larkin, Lindsay Nako, and David S. Nahmias,
`Impact Fund, Berkeley, California, for Amici Curiae Impact
`Fund, Bet Tzedek, California Rural Legal Assistance
`Foundation, Centro Legal de la Raza, Legal Aid at Work, and
`Public Counsel.
`
`Karla Gilbride, Washington, D.C., as and for Amicus Curiae
`Public Justice P.C.
`
`Deborah A. Elman and Chad Holtzman, Garwin Gerstein &
`Fisher LLP, New York, New York; Warren T. Burns and
`Kyle K. Oxford, Burns Charest LLP, Dallas, Texas; Robert S.
`Kitchenoff, President; Lin Y. Chan, Vice President,
`Committee to Support the Antitrust Laws, Washington, D.C.;
`for Amicus Curiae Committee to Support the Antitrust Laws.
`
`Jonathan F. Cohn, Joshua J. Fougere, and Jacquelyn E.
`Fradette, Sidley Austin LLP, Washington, D.C., for Amicus
`Curiae Consumer Healthcare Products Association.
`
`
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`15
`
`OPINION
`
`IKUTA, Circuit Judge:
`
`The primary suppliers of packaged tuna in the United
`States appeal the district court’s order certifying three classes
`of tuna purchasers who allege the suppliers violated federal
`and state antitrust laws. The main issue on appeal is whether
`the purchasers’ statistical regression model, along with other
`expert evidence, is capable of showing that a price-fixing
`conspiracy caused class-wide antitrust impact, thus satisfying
`one of the prerequisites for bringing a class action under Rule
`23(b)(3) of the Federal Rules of Civil Procedure. Because the
`district court did not abuse its discretion in concluding that
`Rule 23(b)(3) was satisfied, we affirm.
`
`I
`
`Bumble Bee,1 StarKist, and Chicken of the Sea (COSI),
`and their parent companies are the largest suppliers of
`packaged tuna in the United States (referred to collectively as
`the “Tuna Suppliers”). Their products include packaged tuna
`sold to direct purchasers like Costco and Walmart, and food-
`service-size tuna products sold to various distributors for
`resale. Together, the Tuna Suppliers sell over 80 percent of
`the packaged tuna in the country.
`
`In late 2015, the United States Department of Justice
`(DOJ) opened an investigation into the packaged tuna
`
`1 As a result of Appellant Bumble Bee Foods LLC’s bankruptcy
`proceeding, appellate proceedings against Bumble Bee Foods have been
`held in abeyance due to the automatic stay imposed by 11 U.S.C. § 362.
`Dkt. No. 51.
`
`
`
`16 OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`industry for violations of federal antitrust law. The DOJ
`investigation uncovered evidence of a price-fixing scheme
`among the Tuna Suppliers, which led the DOJ to enter
`multiple indictments alleging a criminal conspiracy to fix
`prices of canned tuna for the period from approximately
`November 2011 through December 2013. Bumble Bee,
`StarKist, and three tuna industry executives pleaded guilty to
`the conspiracy. Bumble Bee’s former CEO was convicted by
`a jury of a conspiracy to fix prices.2 COSI cooperated with
`the DOJ and admitted to price fixing in exchange for
`leniency.
`
`A number of purchasers of the Tuna Suppliers’ products
`(referred to collectively as the “Tuna Purchasers”) filed
`putative class actions against the Tuna Suppliers alleging
`violations of various federal and state antitrust laws. The
`Tuna Purchasers alleged that the Tuna Suppliers engaged in
`a conspiracy from November 2010 through at least December
`31, 2016 to fix prices of tuna, along with other collusive
`activities in furtherance of the price-fixing conspiracy. The
`Tuna Purchasers alleged that they were damaged by the
`
`2 Plea Agreement, United States v. Bumble Bee Foods LLC, No.
`3:17-cr-00249-EMC (N.D. Cal. Aug. 2, 2017), ECF No. 32; Plea
`Agreement, United States v. Worsham, No. 3:16-cr-00535-EMC (N.D.
`Cal. Mar. 15, 2017), ECF No. 14; Plea Agreement, United States v.
`Cameron, No. 3:16-cr-00501-EMC (N.D. Cal. Jan. 25, 2017), ECF No.
`18; Plea Agreement, United States v. Hodge, No. 3:17-cr-00297-EMC
`(N.D. Cal. June 28, 2017), ECF No. 13; Plea Agreement, United States v.
`StarKist Co., No. 3:18-cr-00513-EMC (N.D. Cal. Nov. 14, 2018),
`ECF No. 24.
`
`
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`17
`
`conspiracy because they paid supra-competitive prices for the
`Tuna Suppliers’ products.3
`
`The Tuna Purchasers’ actions were consolidated in a
`multidistrict litigation pretrial proceeding in the Southern
`District of California. The Tuna Purchasers consist of three
`putative subclasses: (i) direct purchasers of the Tuna
`Suppliers’ products, such as nationwide retailers and regional
`grocery stores, who purchased packaged tuna between June
`1, 2011 and July 1, 2015 (the “DPPs”); (ii) indirect
`purchasers of the Tuna Suppliers’ products who bought bulk-
`sized tuna products between June 2011 and December 2016
`for prepared food or resale (the “CFPs”); and (iii) individual
`end purchasers who bought the Tuna Suppliers’ products
`between June 1, 2011 and July 1, 2015 for personal
`consumption (the “EPPs”).
`
`In 2018, the Tuna Purchasers moved to certify the three
`subclasses under Rule 23 of the Federal Rules of Civil
`Procedure to proceed as a class action. See Fed. R. Civ. P.
`23(a), (b)(3). To demonstrate class-wide antitrust impact,
`each subclass proffered evidence from a different economist,
`each of whom employed substantially similar methodologies,
`to show that each member of the subclasses had paid an
`overcharge caused by the Tuna Suppliers’ conspiracy. The
`Tuna Suppliers contested this expert evidence through their
`own economists. The district court held a three-day
`evidentiary hearing on the certification motion, and heard
`
`3 Supra-competitive prices are those prices elevated “above
`competitive levels” by a market participant who “exercise[s] [its] market
`power” to do so. ABA Section of Antitrust Law, Econometrics: Legal,
`Practical, and Technical Issues 252 (2d ed. 2014) (“Econometrics”).
`
`
`
`18 OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`substantial testimony from each expert witness. In July 2019,
`the district court certified all three subclasses.
`
`The Tuna Suppliers timely appealed, and a panel of this
`court vacated the district court’s order and remanded. See
`Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods
`LLC, 993 F.3d 774, 794 (9th Cir. 2021), reh’g en banc
`granted, 5 F.4th 950 (9th Cir. 2021). We took the case en
`banc to consider whether the district court erred in finding
`that each subclass satisfied the requirement that “questions of
`law or fact common to class members predominate over any
`questions affecting only individual members.” Fed. R. Civ.
`P. 23(b)(3).
`
`We have jurisdiction under 28 U.S.C. § 1292(e) and
`Rule 23(f) of the Federal Rules of Civil Procedure. We
`review the decision to certify a class and “any particular
`underlying Rule 23 determination involving a discretionary
`determination” for an abuse of discretion. Yokoyama v.
`Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1091 (9th Cir.
`2010). We review the district court’s determination of
`underlying legal questions de novo, id., and its determination
`of underlying factual questions for clear error, see Ruiz
`Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1132 (9th Cir.
`2016). The Supreme Court has indicated that a court’s
`determination regarding what a statistical regression model
`may prove or is capable of proving is not a question of fact,
`even though there may be disputed issues of fact raised by
`“the data contained within an econometric model.” Comcast
`Corp. v. Behrend, 569 U.S. 27, 36 n.5 (2013). Accordingly,
`we review the district court’s determination that a statistical
`regression model, along with other expert evidence, is
`capable of showing class-wide impact, thus satisfying one of
`the prerequisites of Rule 23(b)(3) of the Federal Rules of
`
`
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`19
`
`Civil Procedure, for an abuse of discretion. See Yokoyama,
`594 F.3d at 1091.
`
`II
`
`A
`
`Rule 23 provides a procedural mechanism for “a federal
`court to adjudicate claims of multiple parties at once, instead
`of in separate suits.” Shady Grove Orthopedic Assocs., P.A.
`v. Allstate Ins. Co., 559 U.S. 393, 408 (2010). As a claims-
`aggregating device, Rule 23 “leaves the parties’ legal rights
`and duties intact and the rules of decision unchanged,” id.,
`and it does not affect the substance of the claims or plaintiffs’
`burden of proof, see 28 U.S.C. § 2072(b).
`
`To take advantage of Rule 23’s procedure for aggregating
`claims, plaintiffs must make two showings. First, the
`plaintiffs must establish “there are questions of law or fact
`common to the class,” as well as demonstrate numerosity,
`typicality and adequacy of representation.4 Fed. R. Civ. P.
`
`4 Rule 23(a) provides:
`
`Prerequisites. One or more members of a class may sue
`or be sued as representative parties on behalf of all
`members only if:
`
`(1) the class is so numerous that joinder of all
`members is impracticable;
`
`(2) there are questions of law or fact common to
`the class;
`
`
`
`20 OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`23(a). A common question “must be of such a nature that it
`is capable of classwide resolution—which means that
`determination of its truth or falsity will resolve an issue that
`is central to the validity of each one of the claims in one
`stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
`(2011). By contrast, an individual question is one where
`members of a proposed class will need to present evidence
`that varies from member to member. See Tyson Foods, Inc.
`v. Bouaphakeo, 577 U.S. 442, 453 (2016).
`
`Second, the plaintiffs must show that the class fits into
`one of three categories. See Fed. R. Civ. P. 23(b). To qualify
`for the third category, Rule 23(b)(3), the district court must
`find that “the questions of law or fact common to class
`members predominate over any questions affecting only
`individual members, and that a class action is superior to
`other available methods for fairly and efficiently adjudicating
`the controversy.” Fed. R. Civ. P. 23(b)(3).5 “The
`predominance
`inquiry asks whether
`the common,
`
`(3) the claims or defenses of the representative
`parties are typical of the claims or defenses of the
`class; and
`
`(4) the representative parties will fairly and
`adequately protect the interests of the class.
`
`5 Rule 23(b)(3) provides in pertinent part:
`
`A class action may be maintained if Rule 23(a) is
`satisfied and if . . . (3) the court finds that the questions
`of law or fact common to class members predominate
`over any questions affecting only individual members,
`and that a class action is superior to other available
`methods for fairly and efficiently adjudicating the
`controversy.
`
`
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`21
`
`aggregation-enabling, issues in the case are more prevalent or
`important than the non-common, aggregation-defeating,
`individual issues.” Tyson Foods, 577 U.S. at 453 (cleaned
`up). The requirements of Rule 23(b)(3) overlap with the
`requirements of Rule 23(a): the plaintiffs must prove that
`there are “questions of law or fact common to class members”
`that can be determined in one stroke, see Wal-Mart, 564 U.S.
`at 349, in order to prove that such common questions
`predominate over individualized ones, see Tyson Foods,
`577 U.S. at 453–54. Therefore, courts must consider cases
`examining both subsections in performing a Rule 23(b)(3)
`analysis.
`
`B
`
`Before it can certify a class, a district court must be
`“satisfied, after a rigorous analysis, that the prerequisites” of
`both Rule 23(a) and 23(b)(3) have been satisfied. Gen. Tel.
`Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); Comcast,
`569 U.S. at 35. “[P]laintiffs wishing to proceed through a
`class action must actually prove—not simply plead—that their
`proposed class satisfies each requirement of Rule 23,
`including (if applicable) the predominance requirement of
`Rule 23(b)(3),” and must carry their burden of proof “before
`class certification.” Halliburton Co. v. Erica P. John Fund,
`Inc., 573 U.S. 258, 275–76 (2014).
`
`We have not yet prescribed the plaintiffs’ burden for
`proving that the prerequisites of Rule 23 are satisfied. In the
`absence of direction from Congress or the Constitution, it is
`up to the court to prescribe the burden of proof. See Herman
`& MacLean v. Huddleston, 459 U.S. 375, 389–90 (1983). To
`do so, we must consider both the allocation of “the risk of
`error between the litigants” and “the relative importance
`
`
`
`22 OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`attached to the ultimate decision.” Id. at 389 (quoting
`Addington v. Texas, 421 U.S. 418, 423 (1979)). The
`preponderance of the evidence standard allows both parties to
`“share the risk of error in roughly equal fashion,” id. at 390
`(quoting Addington, 421 U.S. at 423), while “[a]ny other
`standard expresses a preference for one side’s interests,” id.
`Therefore, the preponderance of the evidence standard is
`“generally applicable in civil actions.” Id. By contrast, the
`Court has “required proof by clear and convincing evidence
`where particularly important individual interests or rights are
`at stake,” such as termination of parental rights or involuntary
`commitment proceedings. Id. at 389.
`
`Applying this test here, the balance of interests in this
`case favors prescribing the preponderance of the evidence
`standard. The Supreme Court has made clear that Rule 23 is
`consistent with the Rules Enabling Act and does not “abridge,
`enlarge or modify any substantive right.” Shady Grove,
`559 U.S. at 406–07 (citing 28 U.S.C. § 2072(b)). Rule 23
`does not “change plaintiffs’ separate entitlements to relief nor
`abridge defendants’ rights” and, instead, alters “only how the
`claims are processed.” Id. at 408. Therefore, the Supreme
`Court has concluded that the authorization of class actions is
`substantively neutral, even though it may expose defendants
`to the imposition of aggregate liability. Id. Because the
`application of Rule 23 to certify a class does not alter the
`defendants’ rights or interests in a substantive way, there is
`no basis for applying a heightened standard of proof beyond
`the traditional preponderance standard. We therefore join our
`sister circuits in concluding that plaintiffs must prove the
`facts necessary to carry the burden of establishing that the
`
`
`
`OLEAN WHOLESALE GROCERY V. BUMBLE BEE FOODS
`
`23
`
`prerequisites of Rule 23 are satisfied by a preponderance of
`the evidence.6
`
`In carrying the burden of proving facts necessary for
`certifying a class under Rule 23(b)(3), plaintiffs may use any
`admissible evidence. See Tyson Foods, 577 U.S. at 454–55
`(explaining that admiss
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
