The Ninth U.S. Circuit Court of Appeals in San Francisco, California, U.S.A. will hold a hearing to decide whether to reinstate a class-action lawsuit against StarKist, Bumble Bee, and Chicken of the Sea for their role in fixing the price of canned tuna between 2011 and 2013.
In a 3 August decision, a majority of the court agreed to re-hear the case previously heard by a three-judge panel in April, which decided the lawsuit had to be dismissed unless an overwhelming majority of canned tuna customers represented in the suit had been overcharged.
In the April ruling, the panel ruled U.S. District Court for the Southern District of California Judge Janis L. Sammartino, who is presiding over the lawsuit, dismiss it unless she determined whether to accept the argument from the plaintiff’s key expert witness that roughly 94 percent of the so-called “direct purchaser class” were affected by the price-fixing. The panel said Sammartino had not chosen between that argument or the argument of the defense’s key expert witness, who said up to 28 percent of those certified as direct purchaser plaintiffs in the lawsuit were not materially affected by the price alterations.
“Despite admirably and thoroughly marshaling the evidence in this difficult case, the district court needed to go further by resolving the parties’ dispute over whether the representative evidence swept in only 5.5 percent or as much as 28 percent uninjured DPP class members. The district court also needed to make a similar determination for the other putative classes,” the panel said.
The panel found the district court “abused its discretion in declining to resolve the competing expert claims on the reliability of plaintiffs’ statistical model.”
“Rather than resolving the dispute … The district court merely considered whether plaintiffs’ statistical evidence was ‘plausibly reliable’ and otherwise left determination of this question to the jury. It concluded that ‘determining which expert is correct is beyond the scope’ of class certification and was ‘ultimately a merits decision’ for the jury to decide,” the panel wrote. “But resolving this dispute is of paramount importance to certification of the class.”
But with the court’s decision last week to overturn that ruling, the full group of its 11 appellate judges will consider restoring class status to the plaintiffs in the suit at a yet-to-be-determined date. Of those 11 judges, eight did not participate in the deliberations or the final vote, according to the order, which was signed by Chief Judge Sidney R. Thomas.
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