The August 24 Law360 article, “Don’t Let Tuna Cos. Off Hook In Class Suit, 9th Circ. Urged,” highlight’s AAI’s urging of the Ninth Circuit to deny two tuna companies’ challenge to several certified classes in a vast price-fixing case. Public Citizen and the Committee to Support the Antitrust Laws filed amicus briefs in the case.
From the article:
…But StarKist and Tri-Union Seafoods, which does business as Chicken of the Sea, asked the Ninth Circuit in June to decertify the classes, calling into question the use of regression models based on “untrue assumptions” to show that nearly all members of the classes were injured.
But the American Antitrust Institute told the appeals court in a brief on Friday that the U.S. Supreme Court has already validated the use of such models.
“When guilty defendants aggressively litigate, and re-litigate complex questions involving class treatment, they subvert the congressional scheme,” the antitrust think tank said. “They do so by layering enormous costs and uncertainty onto each successive private antitrust class claim, regardless of the merits, and regardless of admitted liability.”
That puts a heavy burden on potential litigants who would use private suits to shut down anti-competitive behavior, the group argued.
The AAI said the “corrosive effect” of diminishing private enforcement incentives has “helped turn the U.S. economy into a breeding ground for price-fixing agreements as brazen as the conspiracy uncovered in this case.”
The tuna companies claim the models used to certify the classes assumed all direct purchasers were subject to the same “average” overcharges, despite each purchaser negotiating their own price, and made an assumption that the overcharges were passed on to indirect tuna purchasers in a uniform manner.
The AAI, however, defended the classes’ use of regression models, asserting that the Supreme Court case Tyson Foods Inc. v. Bouaphakeo four years ago set the “standard under which statistical evidence may be used as common evidence to establish classwide injury.”
…”This court should hold that categorical arguments attacking basic methods of regression modeling may no longer be countenanced after Tyson Foods,” the AAI said.
