Swimming Against the Current: The Ninth Circuit's Incorrect Jettisoning of the De Minimis Rule in Class Action Certification

Abstract

On April 8, 2022, the United States Court of Appeals for the Ninth Circuit, in Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods L.L.C., held that a class in a Rule 23(b) class action could be certified with more than a de minimis number of uninjured class members, so long as a common question still predominated among the class. In doing so, it exacerbated a circuit split on the allowability of uninjured class members. Many observers have read the First, Seventh, and D.C. Circuits as suggesting a de minimis rule, allowing a small percentage of uninjured class members so long as there are not too many and there is some mechanism for determining who is injured. The Second, Third, and Fifth Circuits, meanwhile, have rejected the idea that a class can be certified with any number of uninjured plaintiffs. This Comment argues that the Ninth Circuit introduced confusion into the doctrine by ignoring the de minimis rule and instead suggesting that a class with more than a de minimis number of uninjured parties could recover. The Ninth Circuit’s method is less clear than that of the First, Seventh, and D.C. Circuits and it also fails to satisfy the worthy policy goal of keeping meritless suits from proceeding to the settlement stage.