Amicus Curiae Brief — StarKist Co., et al., Petitioners v. Olean Wholesale Grocery Cooperative, Inc., On Behalf of Itself and All Others Similarly Situated, et al.

NO. 22-131

In the

Supreme Court of the United States

________________

STARKIST CO.;

DONGWON INDUSTRIES CO., LTD., et al.,

Petitioners,

v.

OLEAN WHOLESALE

GROCERY COOPERATIVE, INC., et al.,

Respondents.

________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

________________

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA,

THE PHARMACEUTICAL RESEARCH AND

MANUFACTURERS ASSOCIATION OF

AMERICA, AND THE SOFTWARE

& INFORMATION INDUSTRY

ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF THE PETITION

________________

Jennifer B. Dickey

Jonathan D. Urick

U.S. CHAMBER

LITIGATION CENTER

1615 H Street NW

Washington, DC 20062

Ashley C. Parrish

Counsel of Record

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

aparrish@kslaw.com

Counsel for Amici Curiae

(additional counsel listed on inside cover)

September 9, 2022

James C. Stansel

Melissa B. Kimmel

PHARMACEUTICAL

RESEARCH AND

MANUFACTURERS OF

AMERICA

950 F Street NW

Suite 300

Washington, DC 20004

Counsel for

Pharmaceutical Research

and Manufacturers of

America

Christopher A. Mohr

SOFTWARE &

INFORMATION

INDUSTRY ASSOCIATION

1620 I Street NW

Washington, DC 20005

Counsel for Software &

Information Industry

Association

Anne M. Voigts

Suzanne E. Nero

KING & SPALDING LLP

50 California Street

Suite 3300

San Francisco, CA 94111

Kelly Perigoe

KING & SPALDING LLP

633 West Fifth Street

Suite 1600

Los Angeles, CA 90071

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ............................... 1

INTRODUCTION AND

SUMMARY OF ARGUMENT ................................. 4

ARGUMENT ............................................................... 5

I.

The Petition Satisfies the Requirements for

Granting Certiorari. ............................................ 5

II. The Court’s Review Is Needed to Ensure that

Lower Courts Comply with Controlling

Precedent. .......................................................... 11

III. This Case Affords the Court an Opportunity

to Clarify Several Important Points of Law

Governing Class Actions. .................................. 14

CONCLUSION ......................................................... 20

ii

TABLE OF AUTHORITIES

Cases

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997).............................. 12, 13, 15, 16

American Pipe & Constr. Co. v. Utah,

414 U.S. 538 (1974).................................................. 9

Ariz. Christian Sch. Tuition Org. v. Winn,

563 U.S. 125 (2011).................................................. 9

Arizonans for Off. English v. Arizona,

520 U.S. 43 (1997).................................................... 8

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011)................................................ 18

Blue Chip Stamps v. Manor Drug Stores,

421 U.S. 723 (1975)................................................ 18

Califano v. Yamasaki,

442 U.S. 682 (1979)................................................ 11

Castano v. Am. Tobacco Co.,

84 F.3d 734 (5th Cir. 1996).................................... 10

Comcast Corp. v. Behrend,

569 U.S. 27 (2013).................................. 8, 11, 12, 17

Coopers & Lybrand v. Livesay,

437 U.S. 463 (1978)................................................ 18

Davis v. FEC,

554 U.S. 724 (2008).................................................. 8

Denney v. Deutsche Bank AG,

443 F.3d 253 (2d Cir. 2006) ................................... 16

E. Tex. Motor Freight Sys., Inc. v. Rodriguez,

431 U.S. 395 (1977)................................................ 12

iii

Epic Sys. Corp. v. Lewis,

138 S. Ct 1612 (2018)............................................. 18

Gen. Tel. Co. of Sw. v. Falcon,

457 U.S. 147 (1982)................................................ 15

Halvorson v. Auto-Owners Ins. Co.,

718 F.3d 773 (8th Cir. 2013).................................... 9

Horne v. Flores,

557 U.S. 433 (2009)................................................ 13

In re Asacol Antitrust Litig.,

907 F.3d 42 (1st Cir. 2018) ............................ 6, 7, 17

In re Lamictal

Direct Purchaser Antitrust Litig.,

957 F.3d 184 (3d Cir. 2020) ................................. 6, 7

In re New Motor Vehicles

Can. Exp. Antitrust Litig.,

522 F.3d 6 (1st Cir. 2008) ...................................... 17

In re Nexium Antitrust Litig.,

777 F.3d 9 (1st Cir. 2015) ...................................... 16

In re Rail Freight Fuel Surcharge

Antitrust Litig. ‒ MDL No. 1869,

934 F.3d 619 (D.C. Cir. 2019) ...................... 6, 16, 17

Newton v. Merrill Lynch,

Pierce, Fenner & Smith, Inc.,

259 F.3d 154 (3d Cir. 2001),

as amended (Oct. 16, 2001). .................................. 18

Phillips Petroleum Co. v. Shutts,

472 U.S. 797 (1985)................................................ 10

iv

Regents of Univ. of Cal. v. Credit Suisse

First Boston (USA), Inc.,

482 F.3d 372 (5th Cir. 2007).................................... 8

Schlesinger v. Reservists Comm. to Stop War,

418 U.S. 208 (1974)................................................ 12

Taylor v. Sturgell,

553 U.S. 880 (2008)................................................ 12

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021).................................... 7, 8, 14

Vega v. T-Mobile USA, Inc.,

564 F.3d 1256 (11th Cir. 2009).............................. 16

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011)........................................ passim

Wisc. Dep’t of Revenue v.

William Wrigley, Jr., Co.,

505 U.S. 214 (1992)................................................ 16

Yates v. Collier,

868 F.3d 354 (5th Cir. 2017).................................... 8

Other Authorities

15 U.S.C. § 15 ........................................................... 10

28 U.S.C. § 2072(b) ..................................................... 7

Fed. R. Civ. P. 23(f),

note (Advisory Comm. 1998) ................................. 18

Treatises

Beisner, John H. et al.

Unfair, Inefficient, Unpredictable:

Class Action Flaws and the Road to Reform

(2022) ...................................................................... 14

v

Carlton Fields

2022 Class Action Survey (2022) .......................... 18

Grundfest, Joseph A.

Why Disimply?,

108 Harv. L. Rev. 727 (1995). ................................ 19

Nagareda, Richard A.

Class Certification

in the Age of Aggregate Proof,

84 N.Y.U. L. Rev. 97 (2009) ............................. 13, 18

Rosch, J. Thomas

Comm’r, Fed. Trade. Comm’n,

Antitrust Modernization Committee

Remarks (June 8, 2006) ......................................... 11

INTEREST OF AMICI CURIAE 1

Amici curiae and their members represent a

diverse array of businesses and business interests

across the United States. They support the petition

because they are concerned about the Ninth Circuit’s

failure to enforce the essential requirements of Rule

23 of the Federal Rules of Civil Procedure. Amici have

a strong interest in ensuring that courts undertake

the rigorous analysis that Rule 23 requires before they

allow a case to proceed as a class action. They also

have a strong interest in ensuring that courts do not

certify class actions that improperly include

significant numbers of uninjured class members.

Because the Ninth Circuit’s en banc decision opens

conflicts in lower-court authority, contravenes this

Court’s precedent, and eviscerates important limits on

class-action abuse, amici urge the Court to grant

certiorari. The Court should take this opportunity to

clarify Rule 23’s requirements and direct lower courts

to stop bending the rules in favor of class certification.

The three organizations joining this brief are:

The Chamber of Commerce of the United

States of America (“Chamber”) is the world’s

largest business federation.

It represents

approximately 300,000 direct members and indirectly

1 The parties received timely notice of this brief under Rule

37.2(a). Petitioners and respondents have consented to the filing

of this brief. Pursuant to Rule 37.6, amici curiae state that no

counsel for any party authored this brief in whole or in part and

that no entity or person, aside from amici curiae, their members,

or their counsel, made any monetary contribution intended to

fund the preparation or submission of this brief.

2

represents the interests of more than three million

companies and professional organizations of every

size, in every industry sector, from every region of the

country. An important function of the Chamber is to

represent the interests of its members in matters

before Congress, the Executive Branch, and the

courts. The Chamber regularly files amicus curiae

briefs in cases, like this one, that raise issues of

concern to the nation’s business community.

The

Pharmaceutical

Research

and

Manufacturers of America (“PhRMA”) is a

voluntary, nonprofit association representing the

nation’s leading research-based pharmaceutical and

biotechnology companies.

PhRMA’s member

companies research, develop, and manufacture

medicines that allow patients to live longer, healthier,

and more productive lives. Since 2000, PhRMA

member companies have invested nearly $1 trillion in

the search for new treatments and cures—more R&D

investment than any other industry in America.

PhRMA’s mission is to advocate for public policies that

encourage the discovery of life-saving and lifeenhancing medicines. PhRMA frequently participates

as amicus curiae in cases, like this one, that affect its

members.

The Software & Information Industry

Association (“SIIA”) is the principal trade

association for the software and digital information

industries. SIIA’s membership includes over 400

software companies, search engine providers, data

and analytics firms, information service companies,

and digital publishers that serve nearly every segment

of society, including business, education, government,

3

healthcare, and consumers. SIIA’s members have

been defendants in class action litigation involving

alleged statutory violations that have caused no

concrete injury, and it is very difficult in those suits to

defend against even meritless claims after the

certification stage.

4

INTRODUCTION

AND SUMMARY OF ARGUMENT

This case should not have been difficult. As the

Ninth Circuit panel initially concluded, the district

court improperly certified a class that includes large

numbers of uninjured parties with no conceivable

claim against defendants. The Ninth Circuit panel

also correctly concluded that the district court, not a

jury, must resolve factual disputes bearing on Rule

23’s commonality and predominance requirements

before a class can be certified. As every other court of

appeals to have considered the issue has concluded,

and as two panel members recognized, a district court

may not certify a class unless it first concludes that no

more than a de minimis number of class members are

potentially uninjured. That requirement is essential

to protecting against class-action abuse, where

oversized classes engorged with uninjured parties are

used to coerce defendants into settlement, and to

avoiding overreach by the judiciary, which has no

authority under Article III to adjudicate claims of

uninjured parties.

Instead of enforcing Rule 23’s requirements, the

en banc Ninth Circuit reversed the panel and

fundamentally undermined the standards for class

certification. In direct conflict with its sister circuits,

the en banc court concluded that a class should be

certified even if it includes large numbers of uninjured

parties. It also concluded that a district court may

assume that each class member suffered the same

injury as the average class member, dramatically

changing when representative evidence may be used

to satisfy Rule 23. In doing so, the Ninth Circuit

5

embraced a certify-now, worry-later approach that

defers resolving essential questions until after the

class is certified, increasing the pressure on

defendants to settle even the most non-meritorious

claims.

The Ninth Circuit’s doctrinal departures should

not stand. Nor should this Court allow the circuit

splits created by the Ninth Circuit’s decision to fester.

Instead, the Court should grant certiorari to clarify

the affirmative showing that plaintiffs must make

when seeking to certify a class. This case presents an

ideal vehicle to address the questions presented and to

reaffirm that class actions remain the exception to the

usual rule of individual litigation. Contrary to the

Ninth Circuit’s misguided approach, courts should not

bend the requirements for class certification or avoid

the rigorous analysis that Rule 23 mandates.

ARGUMENT

I.

The Petition Satisfies the Requirements for

Granting Certiorari.

The petition should be granted because it easily

satisfies the standards for this Court’s review. The

important questions it presents should be considered

by this Court, for at least four reasons.

First, as the petition explains, the circuit courts

are divided on two recurring questions of federal law:

(1) whether Rule 23 permits courts to certify a class

that is defined to include more than a de minimis

number of uninjured class members, and (2) whether

Rule 23 permits plaintiffs to employ representative

evidence—examining the purported average impact

6

on the average class member—to meet plaintiff’s

burden of establishing class-wide proof of injury.

By answering both questions in the affirmative,

the Ninth Circuit’s decision dramatically loosens the

requirements for class certification and conflicts with

decisions from other courts of appeal. In particular,

the Ninth Circuit’s decision cannot be reconciled with

decisions by the D.C. and First Circuits holding that a

putative class fails to meet Rule 23’s predominance

requirement when anything more than a de minimis

number of class members may not have suffered any

injury. See In re Rail Freight Fuel Surcharge Antitrust

Litig. ‒ MDL No. 1869, 934 F.3d 619, 624–25 (D.C. Cir.

2019); In re Asacol Antitrust Litig., 907 F.3d 42, 53–54

(1st Cir. 2018). Nor can it be reconciled with decisions

by the First and Third Circuits rejecting the use of

representative evidence as insufficient to prove that

individual class members suffered actual injury. See

Asacol, 907 F.3d at 54–55; In re Lamictal Direct

Purchaser Antitrust Litig., 957 F.3d 184, 192 (3d Cir.

2020). In the class-action context, where enterprising

plaintiffs’ lawyers can easily shop for both clients and

forums, this lack of uniformity is untenable. It creates

incentives for plaintiffs to file their largest and least

precisely defined class actions in the Ninth Circuit

solely because of its unduly lenient approach to class

certification.

Second, the Ninth Circuit’s approach contravenes

this Court’s governing precedent and raises

significant concerns that the judiciary is exceeding the

scope of its Article III authority. See Wal-Mart Stores,

Inc. v. Dukes, 564 U.S. 338, 367 (2011); see also

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207–

7

08 & n.4 (2021) (noting these Article III concerns but

leaving open the question whether “every class

member must demonstrate standing before a court

certifies a class”). Certifying a class action with large

numbers of uninjured class members grants those

class members a substantive right that they otherwise

would not possess. Because that approach deprives

defendants of their right to litigate individual defenses

against uninjured class members, it violates due

process and the Rules Enabling Act, which mandates

that courts interpret Rule 23 in a manner that does

not “abridge, enlarge or modify any substantive right.”

28 U.S.C. § 2072(b). Contrary to the Ninth Circuit’s

approach, because “every plaintiff must be able to

show antitrust injury that is common to the class,”

Lamictal, 957 F.3d at 194–95 (quotation marks

omitted), a court must account for individualized

defenses on injury before certifying a class. Antitrust

injury is a required element for liability under section

4 of the Clayton Act; it therefore must be addressed at

the outset, unlike calculating the amount of damages,

which can be addressed at a later stage of proceedings.

See Asacol, 907 F.3d at 53 (emphasizing that injury in

fact is an element of liability in an antitrust class

action).

The Ninth Circuit brushed aside these concerns,

contending that disputes over the existence of

uninjured class members should not preclude class

certification because they raise “merits” questions

properly reserved for the jury. See App. 17a–21a. But

that reasoning departs from controlling precedent and

conflicts with decisions from other courts of appeal. As

this Court has held, courts must “conduct a ‘rigorous

analysis’ to determine whether” a proposed class

8

satisfies Rule 23, “even when that requires inquiry

into the merits of the claim.” Comcast Corp. v.

Behrend, 569 U.S. 27, 35 (2013) (citing Wal-Mart, 564

U.S. at 351). Merits questions are appropriately

(indeed necessarily) addressed at the classcertification stage whenever they are “necessary” to

determining whether plaintiffs satisfy Rule 23’s

prerequisites. See Wal-Mart, 564 U.S. at 350–51; see

also Regents of Univ. of Cal. v. Credit Suisse First

Boston (USA), Inc., 482 F.3d 372, 381 (5th Cir. 2007)

(explaining that the prohibition on conducting “wideranging inquiries into the merits” applies only when

there is no “reference to the criteria for class

certification”). Because plaintiffs must “affirmatively

demonstrate” their compliance with Rule 23, a court

must “look beyond the pleadings to understand the

claims, defenses, relevant facts, and applicable

substantive law in order to make a meaningful

determination of the certification issues.” Yates v.

Collier, 868 F.3d 354, 362 (5th Cir. 2017) (quotation

marks omitted).

The need to address these issues before a class is

certified is especially important when the existence of

uninjured class members raises questions of

constitutional standing. As this Court has recognized,

because “standing is not dispensed in gross,” every

class member must have Article III standing to

recover individual damages, TransUnion, 141 S. Ct. at

2208, and each class member must maintain a

personal stake in the dispute at “all stages” of the

litigation, Davis v. FEC, 554 U.S. 724, 732–33 (2008)

(quoting Arizonans for Off. English v. Arizona, 520

U.S. 43, 67 (1997)). Given these requirements, there

is no reason plaintiffs should not be required to

9

demonstrate that absent class members have a

sufficient personal interest to participate before they

are brought into the dispute as parties. See Am. Pipe

& Constr. Co. v. Utah, 414 U.S. 538, 550–51 (1974)

(explaining that absent class members stand “as

parties” to the suit until and unless they receive notice

and elect “not to continue”); see also Halvorson v. AutoOwners Ins. Co., 718 F.3d 773, 778 (8th Cir. 2013) (“In

order for a class to be certified, each member must

have standing and show an injury in fact that is

traceable to the defendant and likely to be redressed

in a favorable decision.”). At a minimum, even if

individual class members are not required to

demonstrate standing before they may participate in

class litigation, a court cannot brush aside evidence

showing that large numbers of class members lack any

concrete, particularized injury. See Ariz. Christian

Sch. Tuition Org. v. Winn, 563 U.S. 125, 146 (2011)

(“In an era of frequent litigation [and] class actions ...

courts must be more careful to insist on the formal

rules of standing, not less so.”).

Third, the questions presented raise important

and recurring questions of federal law. Reflecting the

importance of the issues, the Ninth Circuit sua sponte

initiated en banc proceedings and granted rehearing

en banc. Because the en banc court has now spoken,

the Ninth Circuit’s approach is engrained and there is

no possibility that further developments will refine it.

Nor is there any doubt that this Court’s guidance is

needed to address confusion among the lower courts.

In this case, numerous well-respected judges have

reached different conclusions over the same issues,

including a carefully reasoned dissent that highlights

the underlying circuit split “needlessly” created by the

10

en banc decision. App. 70a. As the petition explains,

the Ninth Circuit’s decision has already been cited by

dozens of lower courts, confirming that if review is not

granted, the decision will spur other courts to certify

class actions even when there are large numbers of

uninjured class members.

Fourth, this case presents an ideal vehicle for

addressing the questions presented. The issues it

raises are relevant to “a wide sea of class action cases,”

App. 71a (Lee, J., dissenting), including a rapidly

growing number of cases where class members seek

massive recoveries for alleged statutory violations

even though they have not suffered any concrete

injury. Antitrust claims are similar to many mass-tort

claims where “injury” is an element of the cause of

action that must be proven to establish liability, and

is distinct from the question of damages. Granting

certiorari in this case thus affords the Court an

opportunity to clarify the important distinction

between “injury” (an element of a claim) and the

amount of “damages” (a monetary remedy).

Moreover, because this case arises in the antitrust

context class-action abuse raises particular concerns.

Antitrust laws provide for treble damages, injunctive

relief, and the costs of the action (including attorney

fees) against a party that violates federal antitrust

laws, see 15 U.S.C. § 15, and, as a result, this is not

the type of case where it is necessary “to pool claims

which would be uneconomical to litigate individually.”

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809

(1985); see also Castano v. Am. Tobacco Co., 84 F.3d

734, 748 (5th Cir. 1996) (noting that the absence of a

“negative value suit” should be considered when

11

evaluating the appropriateness of class treatment).

For the same reason, certified classes create especially

significant pressures for defendants to settle

regardless of the merits of the claims. See J. Thomas

Rosch, Comm’r, Fed. Trade Comm’n, Antitrust

Modernization Committee Remarks 9–10 (June 8,

2006) (noting that “treble damage class actions … are

almost as scandalous as the price-fixing cartels that

are generally at issue in the cases”).

II. The Court’s Review Is Needed to Ensure that

Lower Courts Comply with Controlling

Precedent.

The Court should also grant review to safeguard

its own authority by ensuring that the lower courts

comply faithfully with controlling precedent. In the

class-action context, there are too many judges who,

despite this Court’s instructions, continue to put a

heavy thumb on the scale in favor of class certification.

As a result, the class-action exception ends up

swallowing the rule favoring individual litigation.

While the Ninth Circuit cloaked its decision in

citations to relevant cases and soothing references to

Rule 23’s requirements, its decision fundamentally

subverts this Court’s precedents and substantively

weakens Rule 23.

This Court has long emphasized that class actions

are “an exception to the usual rule that litigation is

conducted by and on behalf of the individual named

parties only.” Comcast, 560 U.S. at 33 (quoting

Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)).

As the Court has explained, Rule 23’s requirements

provide crucial safeguards, grounded in constitutional

due-process principles, that must be satisfied before

12

plaintiffs can benefit from the class-action device. See

Taylor v. Sturgell, 553 U.S. 880, 901 (2008). Closely

adhering to Rule 23’s requirements ensures that

courts do not stray beyond the bounds of the judicial

power, offering advisory opinions to the uninjured.

Accordingly, a court must “conduct a ‘rigorous

analysis’ to determine whether” a proposed class

satisfies Rule 23, Comcast, 569 U.S. at 35 (citing WalMart, 564 U.S. at 351), and unless plaintiffs

“affirmatively demonstrate” their compliance with all

of Rule 23’s requirements, including that common

questions predominate over individual ones, the court

cannot certify a class. A rigorous analysis is required

to avoid holding defendants liable to plaintiffs who

have not been harmed or against whom they have

strong individualized defenses. Wal-Mart, 564 U.S. at

361–61. It is also necessary to protect against

extinguishing individualized claims that absent class

members could otherwise press in individual

litigation.

Article III standing is an important part of the

predominance analysis that Rule 23 requires. In

combination with Rule 23(a)’s commonality

requirement,

the

“demanding”

predominance

requirement ensures that “proposed classes are

sufficiently cohesive to warrant adjudication by

representation.” Amchem Prods., Inc. v. Windsor, 521

U.S. 591, 623, 624 (1997). That cohesion exists only

when all class members “possess the same interest

and suffer the same injury.” E. Tex. Motor Freight

Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)

(emphasis added) (quoting Schlesinger v. Reservists

Comm. to Stop War, 418 U.S. 208, 216 (1974)). Merely

pleading “a violation of the same provision of law” and

13

labeling it a common question is not enough, because

“‘[a]ny competently crafted class complaint literally

raises common questions.’” Wal-Mart, 564 U.S. at

349–50 (quoting Richard A. Nagareda, Class

Certification in the Age of Aggregate Proof, 84 N.Y.U.

L. Rev. 97, 131–32 (2009)). The need to prove

predominance by establishing a common, class-wide

injury is essential to ensuring “sufficient unity so that

absent members can fairly be bound by decisions of

class representatives.” Amchem, 521 U.S. at 620–21.

The Ninth Circuit’s en banc decision begins by

reciting the correct legal standards, “but it quickly

stray[s]” from them. Horne v. Flores, 557 U.S. 433,

451 (2009) (describing another situation where the

Ninth Circuit invoked the correct legal standards but

failed to apply them). Instead of enforcing the

principle that class actions are an exception to the

usual rule of individual litigation, the Ninth Circuit’s

approach dismantles Rule 23’s protections and

significantly changes the standards for certification,

making certification almost a foregone conclusion in

any case in which it is requested.

In particular, the Ninth Circuit’s decision makes

it more likely that courts will avoid the rigorous

analysis that must be performed before a class may be

certified under Rule 23. Because plaintiffs can almost

always find an expert willing to opine about

representative evidence, disputes over whether an

element of a claim is susceptible to class-wide proof

will arise in virtually every class action.

By

backhanding those issues as “merits” determinations

to be resolved by the jury, the Ninth Circuit’s decision

invites courts to certify “monstrously oversized

14

classes” containing large numbers of uninjured class

members designed to “pressure and extract

settlements.” App. 70a–71a (Lee, J., dissenting). It

also creates incentives for “dubious” class actions to be

filed—cases that “would never be filed as individual

lawsuits because they involve negligible or no real

alleged harm”—merely because of “the prospect of

aggregating thousands of weak or frivolous individual

claims into a single sprawling class action” that can

“coerce companies into settlement.” John H. Beisner

et al., Unfair, Inefficient, Unpredictable: Class Action

Flaws and the Road to Reform 22, 23 (2022).

Our class action system cannot work if the largest

circuit in the country is allowed to undermine the

careful limits on class actions that are required to

protect the due-process rights of defendants and

absent class members alike. See id. at 38 (explaining

that “‘no-injury’ class actions undermine the proper

administration of justice and put a strain on the U.S.

economy”). Certiorari is warranted.

III. This Case Affords the Court an Opportunity

to Clarify Several Important Points of Law

Governing Class Actions.

This Court should also grant review because this

case presents an ideal opportunity to reaffirm core

principles of class-action adjudication, and also to

clarify the connection between Rule 23 and Article III

standing, an issue the Court left unaddressed in

TransUnion. See 141 S. Ct. at 2208 n.4. By

reaffirming essential baseline limitations on class

certification, this Court can prevent district courts

from improperly shifting the burden to defendants or

15

postponing difficult questions of predominance and

commonality.

First, the burden of satisfying Rule 23’s

predominance and commonality requirements falls

squarely on the named plaintiffs. See Wal-Mart, 564

U.S. at 350. In meeting that burden, “actual, not

presumed,

conformance”

with

the

rule

is

“indispensable.” Gen. Tel. Co. of Sw. v. Falcon, 457

U.S. 147, 160 (1982). Accordingly, a “party seeking

class certification must affirmatively demonstrate his

compliance with [Rule 23]—that is, he must be

prepared to prove that there are in fact sufficiently

numerous parties, common questions of law or fact,

etc.” Wal-Mart, 564 U.S. at 350. If the party seeking

class certification cannot meet that burden, the class

should not be certified and there is no need for the

court to address questions of Article III standing. See

Amchem, 521 U.S. at 622–24 (noting that class

certification issues are “logically antecedent to the

existence of any Article III issues”).

In considering whether a plaintiff has satisfied

Rule 23, however, a class is overbroad and should

never be certified if it is known to include identifiable,

uninjured class members. Courts have no authority to

adjudicate claims of plaintiffs—whether named or

unnamed—who lack Article III standing. A class may

be certified if there is possibility that it includes a de

minimis number of uninjured class members, but only

if, at the time of certification, those potentially

uninjured class members are neither known nor

identified. In those circumstances, it is sufficient at

the class-certification stage that the class is defined in

such a way that everyone within it presumptively has

16

standing, the number of potentially uninjured class

members is very small, and Rule 23’s other

requirements are satisfied. See Denney v. Deutsche

Bank AG, 443 F.3d 253, 263 (2d Cir. 2006).

Second, what counts as a de minimis deviation

“from a prescribed standard must, of course, be

determined with reference to the purpose of the

standard.” Wisc. Dep’t of Revenue v. William Wrigley,

Jr., Co., 505 U.S. 214, 232 (1992). The purpose of the

predominance standard is to promote economy and

uniformity of decision without sacrificing procedural

fairness. See Amchem, 521 U.S. at 615. Courts should

bear in mind that if common issues “truly predominate

over individualized issues in a lawsuit, then the

addition or subtraction of any of the plaintiffs to or

from the class [should not] have a substantial effect on

the substance or quantity of evidence offered.” In re

Nexium Antitrust Litig., 777 F.3d 9, 30 (1st Cir. 2015)

(quoting Vega v. T-Mobile USA, Inc., 564 F.3d 1256,

1270 (11th Cir. 2009)). For example, in In re Rail

Freight Fuel Surcharge Antitrust Litigation-MDL

No. 1869, the D.C. Circuit assessed a damages model

that could “reliably show injury and causation for 87.3

percent of the class” and concluded that it was

insufficient to prove class-wide injury because it

“leaves the plaintiffs with no common proof of those

essential elements of liability for the remaining 12.7

percent.” 934 F.3d at 623–24.

Third, a class that could potentially include a de

minimis number of uninjured parties still should not

be certified unless plaintiffs are able to propose at the

certification stage an administratively feasible

method of identifying and removing any uninjured

17

parties, consistent with the “defendants’ Seventh

Amendment and due process rights to contest every

element of liability and to present every colorable

defense” with respect to the claims of each and every

class member. Id. at 625. If plaintiffs cannot meet

their burden, they are not entitled to class

certification, even if they can show that only a de

minimis number of potentially uninjured class

members may exist. As the First Circuit has noted,

“[t]he fact that plaintiffs seek class certification

provides no occasion for jettisoning the rules of

evidence and procedure, the Seventh Amendment, or

the dictate of the Rules Enabling Act.” Asacol, 907

F.3d at 53. Any doubts should be resolved in favor of

individual litigation, which is the default.

See

Comcast, 560 U.S. at 33.

Fourth, each of these determinations—that there

are only a de minimis number of potentially uninjured

class members, that there is an administratively

feasible method of identifying and removing them

before entry of judgment, and that the addition or

subtraction of any of the plaintiffs to or from the class

does not vitiate predominance—must be done before

any class is certified. In re New Motor Vehicles Can.

Exp. Antitrust Litig., 522 F.3d 6, 28 (1st Cir. 2008)

(requiring the district court to evaluate a proposed

model for proving fact of injury prior to certification).

Contrary to the Ninth Circuit’s decision, a certify-now,

worry-later approach cannot be reconciled with this

Court’s precedent or basic principles of due process.

Wal-Mart, 564 U.S. at 350.

There are good policy reasons for rigorously

enforcing Rule 23’s requirements. “With vanishingly

18

rare exception[s], class certification sets the litigation

on a path toward resolution by way of settlement, not

full-fledged testing of the plaintiffs’ case by trial.”

Nagareda, 84 N.Y.U. L. Rev. at 99. Class certification

inflicts “hydraulic pressure” on defendants to settle

because it threatens them with the possibility of losing

many cases at once. Newton v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 259 F.3d 154, 165, 167 & n.8 (3d

Cir. 2001), as amended (Oct. 16, 2001).

As this Court has recognized, class actions can

“unfairly place pressure on the defendant to settle

even unmeritorious claims.” Epic Sys. Corp. v. Lewis,

138 S. Ct 1612, 1632 (2018) (emphasis added) (cleaned

up); Fed. R. Civ. P. 23(f), note (Advisory Comm. 1998)

(defendants may “settle rather than incur the costs of

defending a class action and run the risk of potentially

ruinous liability”). Indeed, the pressure exists even

when the outcome is likely to be favorable for

defendants. See Coopers & Lybrand v. Livesay, 437

U.S. 463, 476 (1978); Blue Chip Stamps v. Manor Drug

Stores, 421 U.S. 723, 740 (1975). That is particularly

true in antitrust cases given the threat of treble

damages. AT&T Mobility LLC v. Concepcion, 563 U.S.

333, 350 (2011) (noting that “[f]aced with even a small

chance of a devastating loss, defendants will be

pressured into settling questionable claims”). Not

surprisingly, in 2021, companies reported settling 73.1

percent of class actions. See Carlton Fields, 2022

Class Action Survey 26 (2022) (available at

https://classactionsurvey.com/).

The Ninth Circuit’s approach ignores these

pressures, which may lead defendants to settle with a

sprawling class that includes individuals and entities

19

who suffered no injury and thus have no claim. The

resulting economic distortions would harm not just

defendants, but also the consumers who end up

bearing the costs of litigation (and litigation

avoidance) in the form of higher prices. See Joseph A.

Grundfest, Why Disimply?, 108 Harv. L. Rev. 727, 732

(1995). This Court can and should defuse the risks

posed by the Ninth Circuit’s en banc decision by

granting review.

20

CONCLUSION

The petition should be granted.

Respectfully submitted,

Jennifer B. Dickey

Jonathan D. Urick

U.S. CHAMBER

LITIGATION CENTER

1615 H Street NW

Washington, DC 20062

Ashley C. Parrish

Counsel of Record

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

aparrish@kslaw.com

Counsel for the Chamber

of Commerce of the United Anne M. Voigts

States of America

Suzanne E. Nero

KING & SPALDING LLP

James C. Stansel

50 California Street

Melissa B. Kimmel

Suite 3300

PHARMACEUTICAL

San Francisco, CA 94111

RESEARCH AND

Kelly Perigoe

MANUFACTURERS

KING & SPALDING LLP

OF AMERICA

633 West Fifth Street

950 F Street NW

Suite 1600

Suite 300

Los Angeles, CA 90071

Washington, DC 20004

Counsel for Amici Curiae

Counsel for

Pharmaceutical Research

and Manufacturers of

America

21

Christopher A. Mohr

SOFTWARE &

INFORMATION

INDUSTRY

ASSOCIATION

1620 I Street NW

Washington, DC 20005

Counsel for Software &

Information Industry

Association

September 9, 2022