NEW FEDERAL LEGISLATION RAISES DUELING EXPERTS: WHAT OLEAN MIGHT MEAN FOR THE FUTURE OF CLASS CERTIFICATION IN THE NINTH CIRCUIT

Written by Gopi K. Panchapakesan & Jong-min Choi^*

Class plaintiffs often attempt to establish class-wide injury by relying on expert evidence, like surveys, correlation studies, or other statistical analyses that seek to measure the class-wide impact of the alleged misconduct. In response, defendants have traditionally attacked such evidence by seeking to undermine the methodology used by the plaintiffs’ expert. But an en banc ruling from the Ninth Circuit Court of Appeals earlier this year in Olean Wholesale Grocery Coop. v. Bumble Bee Foods (9th Cir. 2022) 31 F.4th 651, suggests that this typical defense response may not be enough to defeat class certification. Rather, in light of Olean, a defendant facing the threat of class certification would be better served by using expert evidence to show that (1) the alleged misconduct could not have affected the entire class and/or (2) as to a significant portion of the class, assessing whether class members were injured would necessitate individualized inquiries. On August 8, 2022, certain of the defendants in Olean filed a cert petition with the Supreme Court, asking the Court to address the question of whether and to what extent a putative class with uninjured class members can be certified. The Supreme Court denied the petition on November 14, 2022.

THE OLEAN DECISION

The underlying dispute concerned an antitrust conspiracy involving the three largest domestic producers of packaged tuna products. (In re Packaged Seafood Prods. Antitrust Litig. (S.D.Cal. 2019) 332 F.R.D. 308, 316-317.) To show antitrust impact in a class action, the district court held, "’plaintiffs must establish, predominantly with generalized evidence, that all (or nearly all) members of the class suffered damage as a result of Defendants’ alleged anti-competitive conduct.’" (Id. at p. 320.) The plaintiffs’ expert opined that a "pooled regression model" showed class-wide injury. In turn, defendants’ expert countered that the model failed some important statistical tests, and thus could not establish injury for about 28% of the class. The district court held that the "issue of whether pooling is appropriate" presented a "’genuine conflict between the experts as to the proper approach,’" and was "not a reason to reject [Plaintiffs’ expert’s]