United States: Class Actions
This is an Insight article, written by a selected partner as part of GCR's co-published content. Read more on Insight
Private antitrust enforcement depends on plaintiffs’ ability to certify a class. But recent cases focusing on uninjured class members have allowed defendants that have injured significant portions of the class to thwart liability by denying class certification. Amici in a pending Ninth Circuit appeal of a district court’s grant of class certification, Packaged Seafood Products Antitrust Litigation, push those arguments farther than they have ever gone. If a court accepts them, these arguments create a trap that will make class certification impossible. This could effectively end private antitrust enforcement even in cases such as Packaged Seafood, where there are multiple guilty pleas, guilty verdicts and criminal fines of defendants and their officers for the same conspiracy for which the plaintiffs have sued them.
- Amici’s arguments in Packaged Seafood thwart private antitrust enforcement by making class certification impossible
- Combining a merits determination for each class member’s injury as a prerequisite to class certification and then limiting plaintiffs’ ability to prove injury create the class action trap
Referenced in this article
- Tyson Foods, Inc v Bouaphakeo
- In re Packaged Seafood Products Antitrust Litigation, pending appeal as Olean Wholesale Grocery Cooperative, Inc v Bumble Bee Foods LLC
Packaged Seafood amici: setting and springing the class action trap
Class-wide liability is essential for private antitrust enforcement. Antitrust cases are expensive to litigate, and an individual class member’s recovery is usually too small to sue alone. A court’s denial of class certification effectively ends private antitrust enforcement.
A new line of cases focusing on uninjured, absent class members has increased the plaintiff’s burden in class certification. These cases suggest that when there is more than a de minimis number of uninjured class members, the plaintiffs must present a reasonable and workable method of weeding uninjured class members from the case.1 If the plaintiffs cannot, then common issues do not predominate on the basis that uninjured class members can only be identified through an individual inquiry.
As these arguments are tested, defendants that have injured large portions of a class have effectively escaped antitrust liability. In just the past three years, appellate courts have denied class certification when defendants ‘only’ injure 87.3 per cent2 and 90 per cent3 of the class. District courts have required even more.4 One district court has suggested that the permissible ‘outer limit’ of uninjured class members is 5 or 6 per cent.5 In other words, a defendant could injure 94 or 95 per cent and still escape antitrust liability because the court refuses to certify the class.
It is in these waters that Packaged Seafood Products Litigation surfaces. In a different era, certifying the class and holding the defendants liable might have been straightforward.6 After all, multiple Packaged Seafood defendants and their officers have either pleaded guilty or been found guilty of criminal violations regarding the same conspiracy. But today? That’s a different story.
Two dark money groups, the Washington Legal Foundation and the Chamber of Commerce, filed amicus briefs with the Ninth Circuit in Packaged Seafood that go where no court has gone before. Not only do they argue that the presence of any uninjured class member defeats class certification, but also that common methods of calculating damages, such as calculating a class member’s average injury based on a representative sample, violates the Rules Enabling Act, article III’s standing requirements and the defendants’ due process rights by masking an individual class member’s lack of injury. Amici’s arguments, if accepted by the Ninth Circuit, would thwart private antitrust enforcement by making class certification impossible.
Packaged Seafood Antitrust Litigation
The plaintiffs in Packaged Seafood Products Antitrust Litigation are grocery stores (direct purchaser plaintiffs), commercial food preparers (indirect purchaser plaintiffs) and individual consumers (end payor plaintiffs). They filed lawsuits in the District Court for the Southern District of California under state and federal antitrust law against the three largest domestic packaged tuna producers, Tri Union Seafoods (doing business as Chicken of the Sea), Bumble Bee Foods and Starkist, and their parent companies. The plaintiffs allege that the tuna producers violated antitrust laws by fixing net and list prices for packaged tuna, limiting promotional activity for packaged tuna and exchanging sensitive or confidential business information to facilitate their scheme to fix tuna prices. 7
Shortly after the plaintiffs filed their actions, the Department of Justice notified the Court that a grand jury in the Northern District of California had been investigating the defendants for criminal violations of the Sherman Act based on the same conduct.8 Since then, the grand jury has indicted multiple defendants9 and their employees,10 and these indictments have resulted in guilty pleas,11 convictions12 and more than US$100 million in criminal fines. 13
The plaintiffs hired experts to calculate the class’s injury. They used ‘a reduced-form regression model to estimate overcharges of canned tuna at the wholesale level’.14 The expert’s model ‘estimates the conditional wholesale price of tuna products as a function of a series of explanatory variables relating to product characteristics, supply and demand factors, and the period of alleged conspiracy’.15 These conditional, or ‘but for’ prices, estimate ‘what the prices would have been but-for the illegal conduct’.16 The experts then ‘compared to the prices during the clean, benchmark period to determine whether there is a statistically significant overcharge’. 17
The experts’ model used data from ‘all three Defendants together [to] create . . . one overcharge finding for all three Defendants’.18 The experts concluded that the defendants ‘charged prices above the level that legitimate competitive factors would explain and shows a statistically significant overcharge, likely caused by collusive behavior, at an estimate of 10.28%’. 19
After extensive briefing, multiple expert reports and three days of oral argument and testimony, the Court in Packaged Seafood certified classes of direct purchaser plaintiffs, indirect purchaser plaintiffs and end payor plaintiffs.20 The parties’ main point of contention was the issue of uninjured class members. The plaintiffs’ expert showed positive overcharges for 98 or 94 per cent of class members; the defendants’ expert argued it was only 72 per cent.21 The Court declined to decide which expert was correct.22 Instead, ‘the Court [wa]s only concerned with whether the method itself is capable of showing [impact] to all, or nearly all of the Class members – not that it does in fact show that the injury occurred’.23 The Court found that the plaintiffs met that burden. 24
The Packaged Seafood amici
Dark money groups Washington Legal Foundation and the United States Chamber of Commerce filed amicus briefs with the Ninth Circuit in support of reversing the district court’s class certification order.27 The Chamber of Commerce touts itself as ‘the world’s largest business federation’, representing ‘more than three million companies and professional organizations of every size, in every industry sector, from every region of the country’.28 The Washington Legal Foundation is a ‘public-interest law firm’ that ‘promotes free enterprise, individual rights, limited government, and the rule of law’.29 Neither group discloses its donors.30 From the information that is available, however, they receive millions of dollars from large corporations, including pharmaceutical manufacturers, tobacco companies and fossil fuel companies. 31
Both groups perpetuate the ‘blackmail’ myth – that is, that plaintiffs’ lawyers use class certification to extort defendants into settling unmeritorious claims in a manner that is tantamount to corporate blackmail.32 This myth is, of course, imaginary, and empirical studies have found no support for it.33 Nevertheless, by filing amicus briefs around the country or through the media, they advocate to shield their powerful donors against underhanded plaintiffs’ lawyers, or as the Chamber of Commerce calls them, ‘storm troopers of the anti-free-enterprise agenda’. 34
And that is what they have done in Packaged Seafood. In amicus briefs filed with the Ninth Circuit, they accuse the plaintiffs of ‘gin[ning] up complexity’ to ‘pull the wool over people’s eyes’.35 They call the lawsuit an ‘attempt . . . to abuse Rule 23 and the class mechanism’.36 The end result? Far from protecting innocent defendants from unmeritorious claims, they will effectively immunise criminal price-fixers from private civil antitrust liability.
Amici’s arguments centre on absent class members’ claims. Amici take the absolutist position that courts cannot certify a class if it includes members without valid claims. And courts should prohibit plaintiffs from showing that class members have been injured using statistical methods because they could mask the fact that there are undamaged members in the class. Doing so, amici argue, violates article III’s standing requirement, the Due Process Clause, the Rules Enabling Act and Rule 23(b)(3)’s predominance requirement. Each argument is summarised below.
- Article III: article III requires that plaintiffs have an injury in fact, and plaintiffs that the defendant has not harmed, by definition, have no such injury.37 Rule 23 does not remove this requirement. Similar to an undamaged plaintiff, undamaged class members lack an injury and, as a result, do not have standing. When a class calculates its injury based on an average injury, it ‘allows uninjured class members to . . . partake in a federal suit, by appropriating injuries they did not suffer’ from those that did. 38
- Due Process Clause: holding a defendant liable for an injury it did not cause violates the Constitution’s Due Process Clause, as does preventing a defendant from showing that it did not injure the plaintiff. Likewise, ‘it would equally offend due process if the trial court extended an adverse ruling against a defendant to the entire class despite individualized defenses to the claims of each class member’.39 Using average damages to measure a class’s injury deprives the defendant of the ability to challenge the individual plaintiff’s allegations.40 At most, it shows ‘that the defendant harmed someone’, not that the defendant harmed any particular plaintiff.41 If the court accepts the plaintiffs’ averaged-damages model, it would violate the defendants’ due process rights because they will not be able to point to that lack of proof.
- Rules Enabling Act: under the Rules Enabling Act, the Federal Rules of Civil Procedure cannot ‘enlarge or modify any substantive right’.42 Courts may not certify a class under Rule 23 if it would prevent a defendant from litigating its defences to individual claims or eliminate an element of a plaintiff’s cause of action.43 Averaging damages does both. It prohibits a defendant from showing that a class member was not damaged, and it relieves uninjured plaintiffs from their burden to show an injury caused by the defendant’s conduct. 44
- Rule 23(b)(2) predominance: class certification requires plaintiffs to show that common issues predominate over individual ones. Common issues do not predominate when the class includes many members that have not suffered an injury, and using an averaging method to calculate damages obscures an individual class member’s lack of injury.45 Rather than show actual predominance, calculating damages using ‘an averaging method would create only the illusion of predominance, by sweeping individual differences under the rug of a single statistical figure’. 46
Setting the class action trap
The Packaged Seafood amici’s arguments accomplish two goals for defendants. First, they accelerate a decision on the merits to class certification, rather than after discovery. Second, they kneecap the plaintiffs’ ability to prove the merits of their cases by prohibiting them from using common statistical methods. Accomplishing either one of these goals will contribute to the decline in private antitrust enforcement. Together, they create a class action trap that will devastate it.
Amici’s arguments turn class certification into a decision on the merits for every class member
Courts cannot engage in ‘free-ranging merits inquiries at the class certification stage’.47 They should only consider ‘[m]erits questions . . . to the extent – but only to the extent – that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied’.48 Amici’s arguments, should the Ninth Circuit accept them, would turn class certification into a merits determination for every class member.
Take the standing argument, for example. Through a rhetorical sleight of hand, amici conflate article III ‘injury in fact’, which gives a plaintiff standing to bring a claim in federal court, with an ‘injury’, which a plaintiff must show to prove the claim’s validity.49 But these are separate inquiries. Article III injury-in-fact asks whether there has been an invasion of a legally protected interest.50 Requiring victims of an anticompetitive conspiracy to prove the merits of their claim as a condition of article III standing would ‘confuse . . . weakness on the merits with absence of Article III standing’. 51
What’s more, amici would have courts make this determination for every class member, representative and absent class members alike. Such an across-the-board requirement contradicts the view of most courts that require only the named plaintiffs to make such a showing.52 And even in the minority of jurisdictions that require absent class members to have standing, none conflate injury and injury-in-fact, so the evidentiary burden remains low.53 Nonetheless, amici argue that district courts must ‘decide the actual proportion of uninjured class members’ to certify a class.54 It is impossible to make this determination without knowing whether each class member has suffered an injury in the first place.
Once amici have turned class certification into an evaluation of each class member’s claim, they tighten the screws once more by arguing that the presence of a single uninjured class member defeats class certification. Even the most restrictive courts will certify a class with uninjured class members, though courts disagree as to how many.55 But amici’s briefs are not so limited. To them, it makes no difference how many uninjured class members are in the class; even a single absent class member without a valid claim would violate article III’s standing requirements or deprive them of their due-process rights to litigate their individual defences against the uninjured class member.
The effect of this argument is two-fold. First, it follows the trend of pushing merits decisions earlier in the case. Courts have been increasingly eager to use their gatekeeping function to weigh in on the merits at earlier stages in litigation. In Matsushita Electric Industrial Co v Zenith Radio Corporation,56 the Supreme Court read into Rule 56’s summary judgment provisions a new requirement that mandated courts ‘to weigh the proffered facts to determine whether the plaintiffs’ claims made economic sense’ in the absence of a conspiracy.57 This forced plaintiffs ‘“to exclude the possibility” that the alleged conspirators acted independently’.58 Then, in Twombly v Bell Atlantic, the Supreme Court extended that standard to motions to dismiss, setting yet another hurdle before discovery. 59
Amici’s arguments would have a similar effect on class certification. No longer could the class wait to prove its injury – or a fact issue as to that injury – until after the close of merits discovery in summary judgment or at trial. Rather, the Class Action Fairness Act requires that plaintiffs seek class certification at ‘[a]n early practicable time after a person sues . . . as a class representative’, which often comes before the close of merits discovery, forcing plaintiffs to prove their case with incomplete evidence. 60
Second, in addition to the increased substantive burden for class certification, the costs of class certification would skyrocket as well. Class certification has already devolved into mini-trials, complete with their own Daubert proceedings61 and appeal.62 Class certification in Packaged Seafood took hundreds of pages of briefing, multiple expert reports and depositions, and three consecutive days of in-court oral argument, expert testimony and cross-examination.63 Requiring plaintiffs to demonstrate each class member’s injury at such an early stage would only increase the cost.
Amici’s arguments would handcuff plaintiffs in their ability to demonstrate antitrust injury
Amici compound their absolutist position’s impact by seeking to prohibit plaintiffs from using statistical methods to demonstrate their injury. As an initial matter, the Supreme Court has already rejected this argument. In 2016, Washington Legal Foundation and the Chamber of Commerce filed amicus briefs with the Supreme Court in Tyson Foods, Inc v Bouaphakeo, making the same arguments they asserted in the Ninth Circuit. They urged the Supreme Court to ‘announce a broad rule against the use in class actions of what [they] call representative evidence’.64 The Court refused:
A categorical exclusion of that sort, however, would make little sense. A representative or statistical sample, like all evidence, is a means to establish or defend against liability. Its permissibility turns not on the form a proceeding takes – be it a class or individual action – but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action. 65
The Supreme Court noted an additional reason for declining to issue a broad rule against representative evidence: sometimes, the defendant’s conduct leaves the plaintiffs with no other choice but to use representative evidence. The plaintiffs in Tyson sued their employer for unpaid overtime wages for the time taken in putting on and taking off their protective gear.66 The defendant did not keep records of that time, despite a statutory obligation to do so.67 And so, the plaintiffs had to ‘introduce a representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records’.68 Rather than punish the plaintiffs for the defendant’s poor record-keeping, the Court found that the plaintiffs could use the representative evidence to prove the number of hours they worked ‘as a matter of just and reasonable inference’. 69
For the same reason, the Supreme Court exempts ‘antitrust plaintiffs from an unduly rigorous standard of proving antitrust injury’,70 by allowing antitrust plaintiffs to prove their injury by ‘just and reasonable inference’.71 This is because statistical evidence is often ‘the only practicable means to collect and present relevant data’.72 To show that they have been injured, antitrust plaintiffs must compare the actual world with the competitive world that would have existed ‘but for’ the alleged antitrust violation.73 But the competitive world is necessarily hypothetical because, if the plaintiffs are right, the defendants’ anticompetitive conduct precludes it from existing. For the evidence that does exist, plaintiffs are at the mercy of record-keeping practices outside their control.74 It is no surprise, then, that ‘statistical evidence is routinely introduced . . . in antitrust litigation’. 75
Amici’s arguments, however, would prevent plaintiffs from introducing that routinely introduced information, punish plaintiffs for evidentiary gaps outside their control and reward defendants for poor record-keeping. When the defendants’ conduct prevents plaintiffs from calculating damages with certainty, the Supreme Court has called it ‘a perversion of fundamental principles of justice to deny all relief to the injured person and thereby relieve the wrongdoer from making any amend for his acts’. 76
Springing the class action trap
While both turning class certification into a merits inquiry and limiting the evidence available to plaintiffs would complicate class certification for plaintiffs in isolation, the largest obstacle comes from combining the two.
Together, amici’s arguments present an inescapable catch-22: plaintiffs must demonstrate each class member’s injury to certify a class. They must establish the class member’s injury through evidence tailored to that class member because using statistical methods such as applying an average damage model to the class could mask a violation of article III’s standing requirements, the defendant’s due process rights, the Rules Enabling Act or Federal Rule 23(b)(3)’s predominance requirement. But, individual issues predominate over common ones when a class can only prove its injury on an individual basis. In other words, the inquiry required to certify the class also defeats class certification. This inherent contradiction has already led one district court to describe this line of argument as a ‘death knell’ for certain types of antitrust actions.77 Whichever way you slice it, class certification is impossible.
The Ninth Circuit may not accept amici’s arguments – no appellate court has yet endorsed both prongs of the class action trap. The closest was the DC Circuit in Rail Freight Fuel Surcharge Antitrust. In that case, the DC Circuit required plaintiffs to show ‘that all class members were in fact injured by the alleged conspiracy’, but the Court left open plaintiffs’ ability to do so through common evidence. 78
Other district court and non-controlling opinions would go further. Dissenting judges in the Fifth Circuit would not certify a settlement class unless the plaintiffs could ‘guarantee that each member of the class meets the standing requirements of Article III’ by showing they were each injured by the defendant.79 To require otherwise would ‘impermissibly extend the judicial power of the United States into administering a private handout program’.80 Likewise, the district court judge in Graphics Processing Units Antitrust Litigation denied class certification because the plaintiffs’ expert used averaging that could ‘mask . . . the differences and by definition glide . . . over what may be important differences’. 81
The closest a court has come to setting the class action trap may be the Supreme Court itself. Tyson Foods was a 6:2 decision.82 Justice Kennedy, joined by Roberts, Ginsburg, Breyer, Sotomayor and Kagan, wrote the majority opinion affirming the plaintiffs’ use of representative evidence to show a common injury as a matter of ‘just and reasonable inference’. 83
But Justice Thomas and Justice Alito seem to agree with the Packaged Seafood amici’s scepticism towards using averages to demonstrate a common injury. They did not find the expert’s study, which used a sample to determine the average time for employees donning and doffing protective gear, probative of common issues.84 ‘[I]ndividual employees inherently spend different amounts of time donning and doffing’.85 To raise an inference of common injury, the plaintiffs would, at a minimum, have to achieve ‘the 1:8 ratio of anecdotes to class members that [the Court’s] prior cases accepted’.86 The expert’s study fell short of that threshold because it ‘used about 57 employees per activity to extrapolate times for 3,344’. 87
Though the Court granted certiorari as to the other prong of the class action trap – ‘whether a class may be certified if it contains members who were not injured and have no legal right to any damages’ – the Court declined to rule on the issue because the petitioner abandoned it in its merits brief.88 Chief Justice Roberts’s concurrence, which Justice Alito joined, seemed receptive to the argument that courts must decertify a class if it contains absent class members, particularly if the plaintiffs have not suggested a method to identify and weed out uninjured class members. 89
Private antitrust enforcement depends on the plaintiffs’ ability to bring relatively small claims on behalf of hundreds or thousands of class members, and the class action trap represents an existential threat to their ability to do so. Since Tyson Foods, Justice Kavanaugh has replaced the seat held by Justice Kennedy, and Justice Gorsuch has filled the seat left vacant after Justice Scalia’s death. This means that the Supreme Court may be five votes for the requirement that every class member must be injured as a prerequisite to class certification and four votes for limiting the use of representative evidence to demonstrate that injury. In other words, the Supreme Court may be a single vote away on one of the class action trap’s two prongs from setting a trap that effectively eliminates private antitrust enforcement.
1 In re Asacol Antitrust Litig., 907 F.3d 42, 52 (1st Cir. 2018); In re Niaspan Antitrust Litig., No. 13-MD-2460, 2020 WL 2933824 (E.D. Pa. June 2, 2020); and In re Loestrin 24 FE Antitrust Litig., 410 F. Supp. 3d 352, 367 (D.R.I. 2019).
2 In re Rail Freight Fuel Surcharge Antitrust Litig., 934 F.3d 619, 624 (D.C. Cir. 2019).
3 In re Asacol Antitrust Litig., 907 F.3d 42, 58 (1st Cir. 2018).
4 See In re Intuniv Antitrust Litig., No. 1:16-CV-12396-ADB, 2019 WL 3947262, at *7–8 (D. Mass. 21 Aug 2019) (denying class certification when 8 per cent of the putative class was uninjured).
5 In re Rail Freight Fuel Surcharge Antitrust Litig., 292 F. Supp. 3d 14, 137 (D.D.C. 2017), aff’d, 934 F.3d 619 (D.C. Cir. 2019).
6 See Amchem Prod., Inc. v Windsor, 521 U.S. 591, 625 (1997) (‘Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws.’).
7 In re Packaged Seafood Prod. Antitrust Litig., 332 F.R.D. 308, 316–17 (S.D. Cal. 2019).
8 id. at 317.
9 See, eg, Information (Doc. 1), United States v Starkist Co., No. 3:18-cr-000513-EMC (N.D. Cal.) (indicting defendant Starkist Co.); and Information (Doc. 1), United States v Bumble Bee Foods, LLC, No. 17-cr-249, https://bit.ly/2UJ2p5B (indicting defendant Bumble Bee Foods, LLC).
10 Indictment (Doc. 1), United States v Lischewski, No. 3:18-cr-00203-RS (N.D. Cal.), https://bit.ly/2Yn6Nba (indicting defendant Bumble Bee Foods LLC’s president and CEO, Christopher Lischewski).
11 See, eg, Department of Justice (DOJ), Former Packaged Seafood Executive Pleads Guilty to Price Fixing (28 Jun 2017), https://bit.ly/2BIbFjt (announcing the guilty plea of Stephen Hodge, a former Senior Vice President of Starkist); and DOJ, StarKist Co. Agrees to Plead Guilty for Price Fixing (18 Oct 2018), https://bit.ly/2MM8wRY (announcing StarKist Co.’s guilty plea).
12 See, eg, DOJ, Former CEO Convicted of Fixing Prices for Canned Tuna (3 Dec 2019), https://bit.ly/2MJyxS3 (announcing that a jury convicted Christopher Lischewski (former Bumble Bee CEO)).
13 See, eg, DOJ, Bumble Bee Agrees to Plead Guilty to Price Fixing (8 May 2017), https://bit.ly/3cMABTR (announcing Bumble Bee’s guilty plea and agreement to pay US$25 million in criminal fines); and DOJ, StarKist Ordered to Pay $100 Million Criminal Fine for Antitrust Violation (11 Sept 2019), https://bit.ly/2MPtJKJ.
14 Packaged Seafood, 332 F.R.D. at 322. The Court noted that this approach is a ‘widely used econometric technique for determining whether prices were higher during a class period than they otherwise would have been without anti-competitive conduct’. id. (citing In re Capacitors Antitrust Litig. (No. III), No. 14-CV-03264-JD, 2018 WL 5980139 (N.D. Cal. 14 Nov 2018); In re Urethane Antitrust Litig., 768 F.3d 1245, 1260–61 (10th Cir. 2014); and In re Graphics Processing Units Antitrust Litig., 253 F.R.D. 478, 495–96 (N.D. Cal. 2008).
18 id. at 323.
20 id. at 346.
21 id. at 324.
22 id. at 328.
23 id. (quoting In re Optical Disk Drive Antitrust Litig., No. 3:10-MD-2143 RS, 2016 WL 467444, at *11 (N.D. Cal. 8 Feb 2016)) (quotation marks omitted) (emphasis in original).
24 id. at 328.
25 See Petition for Permission to Appeal Class Certification Decision Pursuant to Federal Rule of Civil Procedure 23(f) (Doc. 1), Packaged Seafood, No. 19-56514 (9th Cir.).
26 See Order (Doc. 2247), Packaged Seafood, No. 3:15-md-02670 (S.D. Cal.).
27 Brief of Washington Legal Foundation as Amicus Curiae in Support of Defendants-Appellants and Reversal (Doc. 20) and Brief Amicus Curiae of The Chamber of Commerce of the United States of America (Doc. 23-2), Packaged Seafood, No. 19-56514 (9th Cir.). Citations to the Washington Legal Foundation’s amicus brief are ‘WLF’ and citations to the Chamber of Commerce’s amicus brief are ‘Commerce’.
28 Commerce at 1.
29 WLF at 1.
30 Leo E Strine, Jr, ‘Fiduciary Blind Spot: The Failure of Institutional Investors to Prevent the Illegitimate Use of Working Americans’ Savings for Corporate Political Spending’, 97 Wash. U. L. Rev. 1007, 1028 (2020).
31 US Chamber of Commerce, Issue One, www.issueone.org/dark-money-groups-us-chamber-of-commerce/ (last visited 3 July 2020) (showing the Chamber of Commerce receiving US$4.5 million from Chevron and US$4.4 million from Merck & Co); Pharmaceutical Research & Manufacturers of America, Form 990 (2013), https://bit.ly/3eYSgcY (showing a US$50,000 donation from the pharmaceutical lobbying organisation Pharmaceutical Research and Manufacturers of America); Minority Staff Report, Fueling an Epidemic: Exposing the Financial Ties Between Opioid Manufacturers and Third Party Advocacy Groups at 4, https://bit.ly/2Zzgbt9 (showing that Purdue Pharma L.P. paid the Washington Legal Fund US$500,000); and Washington Legal Foundation, SourceWatch, https://bit.ly/3gr1HSQ (last visited 3 July 2020) (showing that the Washington Legal Foundation received more than US$1 million from Phillip Morris).
32 See Matter of Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1298 (7th Cir. 1995) (‘Judge Friendly, who was not given to hyperbole, called settlements induced by a small probability of an immense judgment in a class action “blackmail settlements”.’) (quoting Henry J Friendly, Federal Jurisdiction: A General View 120 (1973)). See also AT&T Mobility LLC v Concepcion, 563 U.S. 333, 350 (2011) (‘Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims. Other courts have noted the risk of “in terrorem” settlements that class actions entail.’); Newton v Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 168 (3d Cir. 2001), as amended (16 Oct 2001) (‘[G]ranting certification may generate unwarranted pressure to settle nonmeritorious or marginal claims.’); Castano v Am. Tobacco Co., 84 F.3d 734, 746 (5th Cir. 1996) (settlements after class certification ‘have been referred to as judicial blackmail’.); and In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768, 784 (3d Cir. 1995) (‘Another problem is that class actions create the opportunity for a kind of legalized blackmail.’).
33 Joshua P Davis and Robert H Lande, ‘Toward an Empirical and Theoretical Assessment of Private Antitrust Enforcement’, 36 Seattle U. L. Rev. 1269, 1316 (2013) (‘We know of no study providing evidence that any significant number of cases lacked merit and yet recovered substantial settlements.’); Antitrust Modernization Commission, Report and Recommendation (Apr 2007) (‘No actual cases or evidence of systematic overdeterrence were presented to the Commission, however.’), https://bit.ly/3dRpDwY; and Charles Silver, ‘“We’re Scared to Death”: Class Certification and Blackmail’, 78 N.Y.U. L. Rev. 1357 (2003). See also Arthur R Miller, ‘Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure’, 88 N.Y.U. L. Rev. 286, 360–64 (2013); and Allan Kanner and Tibor Nagy, ‘Exploding the Blackmail Myth: A New Perspective on Class Action Settlements’, 57 Baylor L. Rev. 681 (2005).
34 Steven P Lehotsky and Jonathan Urick, ‘“The Conservative Case for Class Actions” Doesn’t Pass the Smell Test’, National Review (26 Nov 2019).
35 WLF at 17.
36 WLF at 1.
37 WLF at 7; Commerce at 3.
38 WLF at 7; Commerce at 9 (‘Certifying a class action on the rationale that aggregate evidence shows most class members have suffered an injury, or that the average class member has suffered an injury, gives a substantive right to uninjured class members that they otherwise would not have.’).
39 Commerce at 3.
40 WLF at 9; Commerce at 9.
41 Commerce at 13; WLF at 10–11 (‘Averaging damages enables a plaintiff to smuggle into a class people who suffered no injury at all, much less an injury caused by the defendant.’).
42 28 U.S.C. § 2072(b).
43 WLF at 12; Commerce at 14–15.
44 WLF at 13; Commerce at 14–15.
45 WLF at 5; Commerce at 9.
46 WLF at 15; Commerce at 13.
47 Amgen Inc. v Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013); see also Erica P. John Fund, Inc. v Halliburton Co., 563 U.S. 804, 81 (2011) (‘The Court of Appeals erred by requiring [the plaintiff] to show loss causation as a condition of obtaining class certification.’).
48 Amgen Inc. v Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013).
49 WLF at 4 (‘to have standing to sue under Article III, a plaintiff must have suffered an injury in fact. Averaging a class’s damages may improperly hide the fact that many class members have no injury.’); Commerce at 3 (‘A party not injured by defendants’ conduct has no claim for damages and, indeed, would not even enjoy Article III standing.’).
50 Lujan v Defenders of Wildlife, 504 U.S. 555, 560 (1992).
51 Davis v United States, 131 S. Ct. 2419, 2434, n. 10 (2011).
52 In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 307 (3d Cir. 1998) (‘[T]he named plaintiffs satisfy Article III. The absentee class members are not required to make a similar showing.’); In re Deepwater Horizon, 739 F.3d 790, 801 (5th Cir. 2014) (suggesting that the 5th Circuit may have adopted the named-plaintiff-only approach to standing); Colo. Cross Disability Coal. v Abercrombie & Fitch Co., 765 F.3d 1205, 1214 (10th Cir. 2014) (‘[O]nly named plaintiffs in a class action seeking prospective injunctive relief must demonstrate standing by establishing they are suffering a continuing injury or are under an imminent threat of being injured in the future.’ (citation and quotations marks omitted)); Kohen v Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, 676 (7th Cir. 2009) (‘[A]s long as one member of a certified class has a plausible claim to have suffered damages, the requirement of standing is satisfied.’); and Lewis v Casey, 518 U.S. 343, 395–96, 116 S. Ct. 2174, 2201–02, 135 L. Ed. 2d 606 (1996) (‘[Unnamed plaintiffs] need not make any individual showing of standing [in order to obtain relief]. . . . Whether or not the named plaintiff who meets individual standing requirements may assert the rights of absent class members is neither a standing issue nor an Article III case or controversy issue but depends rather on meeting the prerequisites of Rule 23 governing class actions.’ (Souter, J, concurring) (quoting 1 Herbert B Newberg and Alba Conte, Newberg on Class Actions § 2.07 (3d ed. 1992)).
53 See Denney v Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006) (‘[N]o class may be certified that contains members lacking Article III standing[, but] an injury-in-fact need not be capable of sustaining a valid cause of action under applicable tort law.’); and ‘Class Actions — Standing — Fifth Circuit Refuses to Decide Correct Standing Inquiry for Absent Class Members. — in Re Deepwater Horizon, 739 F.3d 790 (5th Cir.), Reh’g En Banc Denied, 756 F.3d 320 (5th Cir. 2014), Cert. Denied’, 128 Harv. L. Rev. 1296, 1301–02 (2015).
54 WLF at 11–12 (citations omitted); Commerce at 12.
55 See In re Asacol Antitrust Litig., 907 F.3d 42, 53 (1st Cir. 2018) (suggesting that class certification is permissible when ‘a very small absolute number of class members might be picked off in a manageable, individualized process at or before trial’); and In re Intuniv Antitrust Litig., No. 1:16-CV-12396-ADB, 2019 WL 3947262, at *8 (D. Mass. 21 Aug 2019) (suggesting that class certification is permissible when the plaintiffs set ‘forth a reasonable and workable plan to weed out . . . uninjured class members in each putative class’).
56 475 U.S. 574 (1986).
57 William Kolasky, ‘Antitrust Litigation: What’s Changed in Twenty-Five Years’, 27 Antitrust 9, 11 (Fall 2012); Elena Kamenir, ‘Seeking Antitrust Class Certification: The Role of Individual Damage Calculations in Meeting Class Action Predominance Requirements’, 23 Geo. Mason L. Rev. 199, 201 (2015).
58 475 U.S. 574, 588 (1986).
59 550 U.S. 544 (2007). See Also Arthur R Miller, ‘Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure’, 88 N.Y.U. L. Rev. 286, 331 (2013) (‘By demanding that the plaintiff plead facts demonstrating that the claim has substantive plausibility, rather than a statement that is legally sufficient and gives notice of the plaintiff’s claim, these two cases represent a procedural “sea change” in plaintiffs’ ability to survive the pleading stage.’); William Kolasky, ‘Antitrust Litigation: What’s Changed in Twenty-Five Years’, 27 Antitrust 9, 11 (Fall 2012); and Elena Kamenir, ‘Seeking Antitrust Class Certification: The Role of Individual Damage Calculations in Meeting Class Action Predominance Requirements’, 23 Geo. Mason L. Rev. 199, 201 (2015).
60 Fed. R. Civ. P. 23(c)(1)(A).
61 See Michelle Lowery and Jodie Williams, ‘Waging the Merits War at Class Certification: Does Expert Evidence Streamline the Process?’, 18 Antitrust Source 1 (2019); and Christine P Bartholomew, ‘Death by Daubert: The Continued Attack on Private Antitrust’, 35 Cardozo L. Rev. 2147, 2148 (2014).
62 Fed. R. Civ. P. 23(f).
63 Packaged Seafood, 332 F.R.D. at 317.
64 136 S. Ct. 1036, 1046 (2016) (summarising amici’s arguments).
65 See also id. (‘It follows that the Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class-action cases.’); id. at 1051 (Roberts, C J, concurring) (‘And when representative evidence would suffice to prove a plaintiff’s individual claim, that evidence cannot be deemed improper merely because the claim is brought as part of a class action.’). See also In re Mushroom Direct Purchaser Antitrust Litig., 319 F.R.D. 158, 204 (E.D. Pa. 2016) (‘Indeed, the Supreme Court has now held that “representative evidence” is “a permissible means of fill[ing] an evidentiary gap created by [a defendant’s] failure to keep adequate records”.’ (quoting Tyson Foods, 136 S. Ct. at 1047)).
66 Tyson Foods, 136 S. Ct. at 1042.
67 id. (citing 29 U.S.C. § 216(b)).
68 id. at 1047. The representative evidence in Tyson included ‘744 videotaped observations’ and analysis of ‘how long various donning and doffing activities took. [The plaintiffs’ expert] then averaged the time taken in the observations to produce an estimate of 18 minutes a day for the cut and retrim departments and 21.25 minutes for the kill department.’ id. at 1043. The expert added that time to the number of hours each employee worked to estimate the amount of the employee’s uncompensated work. id. at 1043–44.
69 id. at 1047 (quotation marks omitted).
70 Texaco Inc. v Hasbrouck, 496 U.S. 543, 573 (1990) (quotation marks omitted).
71 Bigelow v RKO Radio Pictures, Inc., 327 U.S. 251, 264 (1946).
72 Manual for Complex Litigation, Fourth, § 11.493, p. 102 (2004).
73 Comcast Corp. v Behrend, 569 U.S. 27, 36 (2013).
74 Michael G McLellan, ‘Statistical Evidence, Antitrust Impact, and Class Certification: Tyson Foods and Antitrust Class Actions’, Antitrust, Fall 2017, at 51, 52 (‘Defendants or third parties may not maintain transactional data in useable form (or at all); third parties may successfully resist discovery; or the relevant industry data may simply not exist.’).
75 Manual for Complex Litigation, Fourth, § 23.1, at pp. 470–71. See, eg, In re Capacitors Antitrust Litig. (No. III), No. 14-CV-03264-JD, 2018 WL 5980139, at *6 (N.D. Cal. Nov. 14, 2018) (‘[A] multiple regression approach that is a widely used econometric technique for determining whether prices were higher during a class period than they otherwise would have been without anti-competitive conduct.’); Zenith Radio Corp. v Hazeltine Research, Inc., 395 U.S. 100, 116 & n.11 (1969); In re Processed Egg Prod. Antitrust Litig., 312 F.R.D. 171, 193 (E.D. Pa. 2015) (‘Courts frequently recognize that regression analysis can be used to isolate the effect of an alleged conspiracy on price, taking into consideration other factors that might also influence price, like cost and demand.’ (quotation marks omitted)); In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices & Antitrust Litig., No. 17-MD-2785-DDC-TJJ, 2020 WL 1180550 (D. Kan. Mar. 10, 2020); and In re Mushroom Direct Purchaser Antitrust Litig., 319 F.R.D. 158, 202 (E.D. Pa. 2016).
76 Story Parchment Co. v Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931).
77 In re Intuniv Antitrust Litig., No. 1:16-CV-12396-ADB, 2019 WL 3947262, at *7 (D. Mass. 21 Aug 2019) (‘In the view of this Court, In re Asacol is likely a death knell for pharmaceutical, antitrust class actions brought by indirect purchasers. Given the myriad ways in which consumers could theoretically be uninjured, once a defendant asserts an intent to challenge each claim to have been affected by their conduct, it becomes nearly impossible for indirect purchasers to show that common issues will predominate under In re Asacol.’); and In re Restasis (Cyclosporine Ophthalmic Emulsion) Antitrust Litig., No. 18-MD-2819 (NG) (LB), 2020 WL 2555556, at *22 (E.D.N.Y. 5 May 2020) (citing In re Intuniv Antitrust, No. 1:16-CV-12396-ADB, 2019 WL 3947262).
78 In re Rail Freight Fuel Surcharge Antitrust Litig., MDL No. 1869, 725 F.3d 244, 252 (D.C. Cir. 2013).
79 In re Deepwater Horizon, 739 F.3d 790, 824 (5th Cir. 2014) (Garza, J, dissenting); and In re Deepwater Horizon, 756 F.3d 320, 321 (5th Cir. 2014) (Clement, J, dissenting from the denial for rehearing en banc).
80 id. at 822.
81 253 F.R.D. 478, 494 (N.D. Cal. 2008).
82 The Court issued its opinion in 2016 during the interregnum after Justice Scalia’s death.
83 Tyson Foods, 136 S. Ct. at 1047.
84 id. at 1060 (Thomas, J, dissenting).
88 id. at 1049 (majority op.).
89 id. at 1051 (Roberts, C J, concurring).