Bumble Bee Foods LLC, which presents the question of whether a class can be certified if it contains more than a handful of members who haven’t been injured. So it should not come as a surprise that Article III arguments have reared up in en banc briefs at the 9th Circuit in Olean Wholesale Grocery Cooperative Inc v.
That requirement, which is not in the federal rules for class actions, would make it vastly more difficult for plaintiffs to win class certification.
But the court expressly sidestepped more sweeping arguments by TransUnion and some of its amici that a class cannot be certified unless every class member can demonstrate a right to sue under Article III of the constitution. In TransUnion, as you know, the Supreme Court tightened the test for constitutional standing for plaintiffs in class actions alleging statutory violations. Supreme Court did not venture in last June’s decision in TransUnion LLC v. Circuit Court of Appeals to go where the U.S. Chamber of Commerce and defendants in a trio of antitrust class actions against packaged tuna producers are asking the en banc 9th U.S.
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