The Consumer Healthcare Products Association (CHPA) this week filed an amicus brief urging the 9th Circuit U.S. Court of Appeals to confirm an appellate panel’s holding that a class in a class action lawsuit cannot be certified with more than a de minimis number of uninjured class members.
The case, Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, will be heard by the 9th Circuit US Court of Appeals en banc this fall. One of the two major issues in the case involves the extent to which a court must assess the standing of potential class members in deciding whether to certify a class action. Circuits have been split on this question, and the en banc rehearing comes after the 9th Circuit vacated an April panel decision holding 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.” The vacated opinion found “reported decisions involving uninured class members suggest that 5% to 6% constitutes the outer limits of a de minimis number.”
CHPA’s brief, led by Jonathan Cohn of Sidley Austin, argues both constitutional precedent and federal rules on class action lawsuits require classes that capture members who actually have a viable claim and potential right to recovery; not classes in which some consumers are even plausibly harmed. If the court takes this view, it could help to stem a decades-long proliferation of class actions with broadly defined classes.