Amicus Brief: Olean Wholesale Grocery Cooperative, Inc. et al. v Bumble Bee Foods LLC
After the denial of class certification in Olean Wholesale Grocery Cooperative v. Bumble Bee Foods, COSAL wrote to support granting en banc review. In order to grant certification, common issues must predominate. However, issues can still predominate even if impact is not common among members. The panel’s interpretation of predominance threatens competition, as they said plaintiffs must prove injury for all but a de minimis percentage of potential class members. Predominance should be taken in a practical sense, such that if the majority of a claim’s elements are common, it is acceptable to have some individual issues. Additionally, requiring a court to find the percentage of uninjured class members is costly and time consuming. Moreover, the percentage of uninjured members is not even an effective measure of whether impact is common because issues will predominate even if some class members are uninjured. In all, COSAL supported en banc review, as requiring plaintiffs to prove injury to all potential members will only make class action litigation more difficult. Authored by Deborah Elman, Lin Chan, and Jessica Khan.
