On November 14, 2022, the Supreme Court declined to review an en banc Ninth Circuit decision that stood class certification on an averaging of the alleged harm suffered by the class members. The decision was a setback for WLF, which filed an amicus brief urging review. Seeking to press antitrust claims on behalf of three classes of purchasers of packaged tuna, the plaintiffs convinced the Ninth Circuit to find predominance based on an averaging of the alleged anticompetitive overcharges suffered within each proposed class. WLF’s amicus brief gave the Supreme Court four reasons why it should intervene and hear the case. First, averaging a class’s damages improperly hides the fact that many class members have no injury under Article III of the Constitution. Second, retreat to an averaging method that obscures individual class members’ lack of injury is, in effect, to admit a lack of predominance under Rule 23. Third, averaging violates due process by depriving the defendant of the chance to raise individual defenses against each party the defendant has not harmed. Finally, the Rules Enabling Act prohibits using the class mechanism to relieve class members of the need to show that they each suffered an injury under the antitrust laws.

**Click here for WLF’s filings in this case before the Ninth Circuit, where the case was styled In re: Packaged Tuna Antitrust Litigation**


WLF amicus brief