Supreme Court Urged to Leave StarKist Antitrust Ruling in Place

Canned tuna buyers leading antitrust litigation over an industrywide price-fixing scheme urged the US Supreme Court to stay out of their dispute with StarKist Co., which had asked the justices in August to strip the long-running case of its class action status.

The retailers, restaurants, and consumers on Tuesday defended a ruling by the US Court of Appeals for the Ninth Circuit, which held that statistical models offered by the purchasers could likely show “in one stroke” if collusion among StarKist, Bumble Bee Foods LLC, and Chicken of the Sea led to widespread overcharges. StarKist is the only company still actively defending the case.

The appeals court found in April that even if each tuna buyer’s eligibility for damages might require individual proceedings, the case’s central issues are still capable of being resolved on a class-wide basis. Two judges dissented, assailing the decision for increasing plaintiffs’ settlement leverage.

The purchasers argued in a joint brief filed with the high court that the decision applied well-settled legal concepts to a case involving “the core functions of the antitrust laws.” If those basic principles lead to uneven settlement leverage, that’s for Congress to address, not the courts, they said.

It’s “unsurprising” that the lower courts agreed to hear the case as a class action after “guilty pleas, an agreement to cooperate for leniency, and criminal convictions,” the brief said. “Because petitioners engaged in a nationwide price-fixing conspiracy, all purchasers bought in a distorted marketplace.”

Two Circuit Splits?

The multidistrict lawsuit, filed in 2015, was part of a wave of cartel cases involving livestock, agriculture, and protein, including the chicken, beef, turkey, pork, salmon, egg, and dairy sectors.

The consolidated case followed on the heels of a Justice Department probe that netted several tuna industry executives, including Bumble Bee’s former CEO, Christopher Lischewski, who’s set to be released from federal prison in late November after serving about 27 months of a three-year sentence for criminal antitrust violations.

The lawsuit also originally targeted affiliates of Bumble Bee and Chicken of the Sea, but Bumble Bee declared bankruptcy, while Chicken of the Sea confessed to the conspiracy, sought leniency from the DOJ, and settled the civil case.

The filing Tuesday came two months after StarKist took the case to the high court’s doorstep, claiming the Ninth Circuit’s ruling opened two circuit splits. First, the court improperly held that a case can be certified as a class action even if a large number of potential class members may have suffered no legal harm, the company said.

And second, the appeals court defied Supreme Court precedent in ruling that plaintiffs can prove harm across the whole class by using statistical evidence to show that its “average” member was injured, according to StarKist’s petition.

‘Familiar’ Framework

Those arguments mischaracterized the decision, the purchasers said. Rather than announce some new across-the-board rule about unharmed class members, the Ninth Circuit simply applied a “familiar” framework to the facts at hand, just as other appeals courts have, according to their filing.

That framework concerns whether it would take individual “mini-trials” to winnow out class members who didn’t overpay for tuna, not the absolute number of unharmed class members, the brief said.

The court also straightforwardly applied settled standards that call for considering statistical evidence in class actions if it would be relevant, reliable, and admissible to an individual plaintiff bringing the same claims, according to the purchasers.

“If petitioners are right that the Ninth Circuit’s decision cannot be squared with those of three other circuits,” then those courts “will soon have an occasion to disagree expressly with it,” the brief said. “If that does not happen, as the Ninth Circuit’s opinion itself explains, the cases are consistent after all.”

Kellogg, Hansen, Todd, Figel & Frederick PLLC and Hausfeld LLP are lead counsel for the class of large retailers that bought tuna directly from StarKist. Cuneo Gilbert & LaDuca LLP is lead counsel for the restaurant class. Wolf Haldenstein Adler Freeman & Herz LLP is lead counsel for the consumer class.

StarKist is represented by Latham & Watkins LLP.

The case is StarKist Co. v. Olean Wholesale Grocery Coop. Inc., U.S., No. 22-131, brief opposing cert. filed 10/11/22.