Wednesday, August 4, 2021
Yesterday, the full Ninth Circuit voted to vacate the April panel decision in Olean Wholesale Grocery v. Bumble Bee Foods and to hear the case en banc.
One of the important issues in the case is the extent to which a court must assess the standing of potential class members in deciding whether to certify a class action. The majority opinion, authored by Judge Bumatay, had held that “the mere presence of some noninjured class members does not defeat predominance, but we hold that the number of uninjured class members must be de minimis.” Judge Hurwitz dissented from this part of the opinion, arguing instead that “[t]he critical question is not what percentage of class members is injured, but rather whether the district court can economically ‘winnow out’ uninjured plaintiffs to ensure they cannot recover for injuries they did not suffer.”
In June, the Supreme Court flagged this issue (without resolving it) in footnote 4 of Justice Kavanaugh’s majority opinion in TransUnion. “We do not here address the distinct question whether every class member must demonstrate standing before a court certifies a class.”