White & Case Files Supreme Court Amicus Brief on Behalf of the Computer & Communications Industry Association Addressing Important Class-Certification Issues

Global law firm White & Case LLP has filed an amicus brief with the Supreme Court of the United States on behalf of the Computer & Communications Industry Association (CCIA) in the closely watched case, StarKist Co. v. Olean Wholesale Grocery, which has significant implications for class-action litigation. 

In the amicus brief, CCIA asks the Supreme Court to grant a writ of certiorari and reverse the Ninth Circuit’s en banc decision, which held that the district court was not required "to resolve a dispute between the parties as to whether 28 percent of the class did not suffer antitrust impact" (i.e., no injury) before certifying a class action. The Ninth Circuit's en banc decision undercuts critical Rule 23, Article III, and due process protections, paving the way for massive class actions engorged with uninjured class members.  

In sharp contrast to the Ninth Circuit's decision, the unanimous decisions of both the First Circuit and D.C. Circuit have held, respectively, that proposed class actions in which 10 percent and 12.7 percent  of the class was uninjured did not satisfy Rule 23(b)(3)’s predominance requirement. In re Asacol Antitrust Litig., 907 F.3d 42, 45, 57-58 (1st Cir. 2018); In re Rail Freight Fuel Surcharge Antitrust Litig., 934 F.3d 619, 623-24 (D.C. Cir. 2019). Other circuits have reached similar conclusions and most district courts follow Asacol, creating a circuit split and making the Ninth Circuit the outlier when addressing this important class-certification issue.

The full amicus brief is available here.

The White & Case team representing CCIA includes partners J. Mark Gidley, Peter J. Carney and Adam M. Acosta, along with associates Shannon Lane (all Washington, DC) and Daniel Medici (Boston).  

White & Case was previously counsel of record before the First Circuit in Asacol, and the team was recognized as "Litigators of the Week" by Global Competition Review for securing reversal of class certification in that case.  The Asacol antitrust litigation was also shortlisted as "Litigation of the Year" at the GCR Awards in 2019.

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