18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 649 ("Pro-Flex®CSST" or "CSST"). The District Court denied Plaintiffs’ motion for class certification. On appeal, the Third Circuit affirmed the District Court’s ruling. Plaintiffs alleged that yellow-jacketed CSST was insufficiently insulated to prevent combustion following an electrical surge, and even though Defendant was aware of this defect, it continued to manufacture and distribute the product nationwide. Plaintiffs alleged that the presence of yellow-jacketed CSST damaged the value of their properties and their ability to sell because home inspectors listed the yellow-jacketed CSST as a material defect. Plaintiffs sought to certify a class consisting of “any and all persons and/or entities who own real property in the United States in which yellow-jacket Pro-Flex®CSST manufactured, designed, marketed, or distributed by the named Defendants was installed.” Id . at *5. Plaintiffs contended that both commonality and predominance were met based on the common product and Defendants’ common course of conduct in continuing to manufacture, market, and sell the CSST. Id . at *9. However, the Third Circuit agreed with the District Court that the same conduct did not give rise to the same harm for each class member so as to establish commonality. The Third Circuit explained that some Plaintiffs experienced physical damage, some alleged an economic injury from the diminution in value of their home, and some may have had no injury or their injury that might depend on the condition of the pipes and manner of installation. The Third Circuit thus opined that each claim would require individualized property assessments and would raise different causation issues. The Third Circuit further reasoned that Plaintiffs failed to establish how their nationwide class would overcome predominance obstacles based on differences in state laws. Accordingly, the Third Circuit agreed with the District Court that Plaintiffs failed to satisfy their predominance burden. The Third Circuit held that the District Court did not abuse its discretion in denying certification for the nationwide class under Rule 23(b)(3). Accordingly, the Third Circuit affirmed the District Court’s ruling denying Plaintiffs’ motion for class certification. Olean Wholesale Grocery Cooperative, Inc., et al. v. Bumble Bee Foods, LLC, 2021 U.S. App. LEXIS 9880 (9th Cir. April 6, 2021). In a multi-district antitrust case, Plaintiffs, a group of purchasers of tuna products, brought a class action alleging that Defendants engaged in a price-fixing conspiracy. Plaintiffs alleged that Defendants colluded to artificially inflate the prices of their tuna products by engaging in various forms of anti- competitive conduct, including agreeing to: (i) fix the net and list prices for packaged tuna, (ii) limit promotional activity for packaged tuna, and (iii) exchange sensitive or confidential business information in furtherance of the conspiracy. There was little dispute over the existence of a price-fixing scheme as soon after this action was commenced, as the U.S. Department of Justice (“DOJ”) initiated criminal charges against Defendants for their price-fixing conspiracy where certain Defendants admitted to price fixing and agreed to cooperate with the federal investigation. On Plaintiffs’ motion, the District Court certified three classes of purchasers who bought packaged tuna products between November 2010 and December 2016. The District Court granted class certification because it concluded that Defendants’ expert testimony – which challenged the methodologies of Plaintiffs’ expert – were ripe for use at trial but were not fatal to a finding of class-wide antitrust impact. Defendants’ expert provided testimony and alternative statistical modeling that suggested Plaintiffs’ data was methodologically flawed and was unable to show impact for up to 28% of the class (and not 5.5%, as Plaintiffs’ expert insisted). Rather than resolving the dispute, however, the District Court merely considered whether Plaintiffs’ statistical evidence was plausibly reliable. In so ruling, the District Court found that determining which expert was correct was beyond the scope of a class certification motion and was an issue for the jury. On appeal, Defendants challenged the District Court’s determination that Rule 23(b)(3)’s predominance requirement was satisfied by Plaintiffs’ use of expert statistical evidence that established class-wide impact based on averaging assumptions and pooled transaction data. As a threshold issue, the Ninth Circuit concluded that this form of statistical or representative evidence could be used to establish predominance because the representative evidence could be used to prove injury in individual antitrust suits, was consistent with Plaintiffs’ underlying cause of action, and did not necessarily mask a lack of predominance. However, the Ninth Circuit held that the District Court abused its discretion by not resolving the factual disputes necessary to decide the requirement before certifying the classes. Specifically, the Ninth Circuit concluded that the District Court abused its discretion when it declined to the resolve the factual disputes of the parties’ competing expert claims on the reliability of Plaintiffs’ statistical model because resolving that dispute was of paramount importance to certification of the class. The Ninth Circuit opined that if Plaintiffs’ model showed that more than one-fourth of the class might have suffered no injury at all, the District Court could not find that the requirement of predominance was met. Accordingly, the Ninth Circuit vacated the District Court’s order certifying the three classes and remanded for the District Court to determine the number of uninjured parties in the proposed class