Two federal appellate courts are set to address the circumstances under which a class that includes many uninjured class members may be certified. In the Ninth Circuit, the en banc court agreed to decide if a class that includes more than a de minimis number of uninjured class members can satisfy the predominance requirement of Rule 23(b)(3). See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 5 F.4th 950 (9th Cir. 2021). An earlier panel held, in a 2-1 decision, that predominance does not exist as a matter of law in such circumstances. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 993 F.3d 774 (9th Cir. 2021). Meanwhile, the D.C. Circuit—which embraced the de minimis rule in 2019—accepted an interlocutory appeal to review what it called a “questionable” decision to certify a class, after the defendants complained that the district court intended to wait until after certification to determine whether the class contained uninjured members. See In re Visa Inc., No. 21-8005 (D.C. Cir. Oct. 1, 2021). Both cases could make it significantly more difficult for plaintiffs to obtain certification if plaintiffs are required to show that nearly all of the proposed class suffered an injury to satisfy the predominance requirement of Rule 23(b)(3).
