Most tuna eaters weren’t harmed by conspiracy, lawyers say

An attorney for producers of packaged tuna told a 9th U.S. Circuit Court of Appeals en banc panel Wednesday that class certification should be rejected because too many of the plaintiffs suffered no harm.

Gregory G. Garre, a partner with Latham & Watkins LLP who represents StarKist Co., said about 28% of the class suffered no damages as a result of the alleged antitrust violations.

"A large number of class members were not affected at all," Garre told the panel. Olean Wholesale Grocery Co-op et al. v. Bumble Bee Foods LLC et al., 19-56514 (9th Cir., filed Dec. 26, 2019).

While Garre said there was no magic number that would defeat class certification, he said a class in which roughly 30% was not injured is more than enough to do so.

But several judges on the en banc panel peppered Garre with pointed questions, including whether the percentage of unharmed plaintiffs was relevant under the law.

"I don't see why it matters whether the uninjured class members are 5%, 20% or 30%," 9th Circuit Judge Paul J. Watford, an appointee of President Barack Obama, told Garre.

The issue turns on a question of federal civil procedure, and whether U.S. District Judge Janis L. Sammartino of the Southern District of California was correct in granting certification to three different plaintiff classes.

Under Rule 23, a court can certify a class if it finds that "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."

Sammartino granted the class certification motion, but a divided 9th Circuit three-judge panel vacated her decision in an April opinion written by Judge Patrick J. Bumatay, an appointee of President Donald Trump.

Executives at StarKist, Tri-Union Seafoods LLC and Bumble Bee Foods LLC have either been convicted or pleaded guilty to criminal charges of participating in a conspiracy to fix prices. Bumble Bee subsequently filed for bankruptcy.

Christopher L. Lebsock, an attorney with Hausfeld LLP who represents the direct purchaser class, said the tuna companies' overcharges affected the entire class.

"What we are seeing is widespread overcharges across the customers," he told the panel.

9th Circuit Judge Kenneth K. Lee, an appointee of President Donald Trump, questioned whether the district court should not try to resolve the large differences between the estimates of plaintiff and defense experts before granting class certification.

Lebsock, however, said the disagreement between experts is overstated because of the large percentage of plaintiffs who were injured.

Garre, however, said Sammartino was incorrect when she did not try to resolve the differences between experts before granting certification. "That was an error," he added, one that requires a remand.

He argued a decision for class certification would conflict with three other circuits.

Attorneys for the plaintiffs represent a wide variety of companies, from major corporations to small commercial food preparers.

In August, the U.S. Judicial Panel on Multidistrict Litigation reassigned the district court case to U.S. District Judge Dana M. Sabraw after Sammartino recused herself. Sammartino disclosed that a relative owned stock in two of the original plaintiffs, Target Corp. and Sysco Corp.

Garre argued that the sale of canned tuna was "highly individualized" and could not be compared to the sale of a single consumer product. Lebsock cited a 2016 U.S. Supreme Court case to support his argument, saying decertification of a class was not appropriate even though some plaintiffs were not harmed. Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016). Garre countered that Tyson Foods was less appropriate because it involved workers at a single facility.