Variable Standards: How Many Uninjured Class Members Are Acceptable?

Authors

Tom Flesher

Abstract

Purchasers of canned tuna filed a class action against tuna producers after a price-fixing scheme raised prices above competitive levels. To be certified, a class must include only members who have suffered an injury, in this case by paying a higher price than they would have in the absence of price-fixing, but it was difficult to identify which plaintiffs were uninjured and should be excluded. Dueling statistical models failed to resolve this uncertainty, with one model suggesting up to one in every three class members was not injured at all. The Ninth Circuit nonetheless allowed this class to be certified, splitting with other circuits which apply a de minimis rule. This demonstrates a shocking gap in judges’ statistical understanding. This Note argues that, given the recognized difficulty judges have applying statistical evidence, a de minimis rule, though inelegant, is the most reasonable solution.

Recommended Citation

Flesher, Tom (2025) "Variable Standards: How Many Uninjured Class Members Are Acceptable?," Touro Law Review: Vol. 40: No. 1, Article 9.
Available at: https://digitalcommons.tourolaw.edu/lawreview/vol40/iss1/9