A trio of consumer groups has waded into a long-running legal fight between the 'big three' US canners accused of price-fixing and the distributors, wholesalers, restaurants, retailers and end-users who bought tuna from them.
In amicus briefs filed Aug. 21 with the San Francisco, California-based United States Court of Appeals for the Ninth Circuit, three groups -- Public Citizen, the American Antitrust Institute, and the Committee to Support the Antitrust Laws (COSAL) -- arguing against the canners' appeal of a lower court judge's decision to certify the hundreds of individual lawsuits into common classes.
The canners have argued in their appeal that the July 2019 decision from district court judge Janis Sammartino to certify the classes -- accepting that the facts of the hundreds of individual cases against the canners are common enough to be treated together -- sounds a "death knell" for the future of the ongoing class-action lawsuit.
The canners have said Sammartino's ruling was made in error, in part because the overcharges that the different members of the classes say they experienced "differed wildly" and the economic models used to estimate them were flawed. Additionally, it hasn't been proven that every member of each class suffered damages, which is needed before class certification is granted, the canners' lawyers have argued.
However, in their amicus briefs, the consumer took issue with those assertions.
"Were this court to reverse the District Court’s grant of class certification, it would not only affect the members of the certified classes but could also thwart the ability of consumers and other victims of future anticompetitive violations from seeking redress," COSAL stated in its brief.
It added that "US competition policy could be seriously undermined if antitrust plaintiffs could not use representative evidence but were required to show harm to every class member under [civil procedures] at the class certification stage".
Costly suits
The first civil suits against Bumble Bee Foods, Dongwon Enterprise-owned StarKist & Co., and Chicken of the Sea, a brand owned by Thai Union Group's Tri-Union Seafoods, began in 2015 as allegations emerged that the companies had engaged in a scheme to fix canned tuna prices.
Plaintiffs have been sorted into four "tracks" depending on how they purchased tuna from the canners and the class certification ruling allows each track to have common legal counsel and pool many plaintiffs' resources together to pay the costly bills for expert witnesses, lawyers fees and other expenses that come in class-action litigation.
The large wholesalers and distributors who dealt directly with the canners are known as "direct purchasers" with a second track of direct purchasers including large buyers such as Walmart with separate lawsuits known as "direct action" plaintiffs.
Lawsuits in two other tracks, the "commercial food preparers" including restaurants and retailers, and individual consumers known as "end-payers", include plaintiffs who purchased from the canners' tuna indirectly.
The class-action suits have already had a major impact on the US canners. In November, Bumble Bee filed bankruptcy in Delaware and is set to be bought by its longtime tuna supplier FCF Co. Bumble Bee has cited the class action suits as well as a $25 million fine from the Department of Justice as two major factors behind the bankruptcy.
Additionally, Starkist, which judge Edward Chen fined $100m last year after its guilty plea to price-fixing charges, indicated at the time that it too could file for bankruptcy or move its operations from American Samoa, which would result in mass layoffs.
Thai Union, which escaped criminal liability because it acted as a whistleblower to the DOJ, has set aside some $104m to pay for its part in the price-fixing. Most of the related lawsuits have now been settled, the company has said.
August 27, 2020 at 01:03AM
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Consumer groups square off against US canners in tuna price-fixing appeal - Undercurrent News
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