How many uninjured plaintiffs are too many? The question–which arises across class action litigation, from consumer to employment cases–sounds simple. But as Tom Flesher demonstrates in his student note, federal courts cannot agree on an answer.
Flesher’s note centers on Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, a price-fixing case that is hard not to love as a teaching vehicle precisely because the facts are so clean. The defendants were the three largest canned tuna producers in the nation, two of whom had already pled guilty to federal criminal charges; none seriously disputed wrongdoing.
The case nonetheless nearly came apart at class certification. Experts for both sides acknowledged that a portion of the putative class suffered no injury, though they disagreed about magnitude. Plaintiffs’ expert used a pooled regression model (aggregating all class members together) to estimate the figure at 5.5%. The defendants’ expert (relying on disaggregated data) put it at 28%. The district court granted certification. The Ninth Circuit affirmed, reasoning that aggregate statistical evidence of average overcharge could satisfy Rule 23(b)(3)’s predominance requirement even where a substantial minority of class members went unharmed. The court maintained this result aligned with other circuits. As Flesher argues, courts actually diverge, not just on how many uninjured members are too many, but on whether aggregate statistical evidence can satisfy predominance at all.
It would be easy to minimize Olean as different circuits drawing different lines. The Olean majority characterized the other circuits’ decisions as merely fact-specific rather than rule-based, effectively denying a split existed.
Flesher’s close textual analysis shows something more important–doctrinal disagreement. That is a meaningful scholarly contribution, given that some have accepted the Ninth Circuit’s framing at face value. The First Circuit in In re Nexium Antitrust Litigation and In re Asacol Antitrust Litigation adopted a de minimis rule. The D.C. Circuit in In re Rail Freight Fuel Surcharge Antitrust Litigation gestured toward something even stricter. Flesher calls the Supreme Court’s denial of certiorari a missed opportunity, particularly given that the Ninth Circuit handles more antitrust class actions than any circuit.
The note is especially valuable because Flesher does not stop at his doctrinal analysis. He explains why the question is so hard to resolve, explaining regression analysis accessibly and well. The choice between pooling and disaggregating data can determine whether a class is certified at all. Competing econometric models can yield dramatically different results, and judges often lack the tools to choose between them. Flesher’s primer on regression modeling makes that problem concrete. Statistical fog is part of the story, and he clears enough of it to show what is really at stake.
Flesher also keeps the public policy costs associated with defining de minimis squarely in view. An overly demanding rule allows wrongdoers to retain ill-gotten gains simply because the diffuse nature of harm makes perfect plaintiff identification impossible. As Flesher puts it, “benefits are concentrated with the producers and harms are spread across the relatively much larger number of purchasers”—no individual victim is well positioned to prove damages alone. He further observes that even a gold-standard regression model built to economists’ typical 95% confidence threshold will statistically misclassify some plaintiffs as uninjured. A de minimis rule that ignores this baseline limitation may set a bar that sound econometric practice cannot clear. The stakes are especially high in the antitrust context, where private enforcement is the primary check on anticompetitive conduct and procedural barriers to certification have already taken a significant toll.
Flesher concludes by weighing in on a question the Olean court never had to reach. Had the district court credited the defendants’ expert, he argues, certifying a class with 28% uninjured members would have gone too far. Perhaps we should push back on this conclusion, which sits uneasily with his argument. If an overly demanding standard lets wrongdoers off the hook, it is worth asking whether certifying the Olean class was not merely defensible, but correct. That tension aside, the note’s willingness to grapple honestly with a hard problem is part of what makes it worth reading.
Variable Standards is short, timely, and effective. The circuit split it chronicles remains unresolved. As recent scholarship confirms, the doctrinal and statistical challenges surrounding uninjured class members are only growing in importance. For scholars and practitioners who grapple with predominance in class actions, Flesher has provided an invaluable roadmap to a problem that is only going to get harder to ignore.
