Walking on Water: Concrete Standing and the <em>De Minimis</em> Limitation at Class Certification

…[C]lass action lawsuits are almost never presented to a jury. The sheer scope and scale of class action lawsuits typically incentivize settlement. Thus, Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC raises many questions. Who should decide these merits questions, and when? Is there a limit to uninjured class members, and how should it be determined? Do uninjured class members satisfy the requirements needed for Article III standing? While the Ninth Circuit’s case-by-case approach is sure to stoke the fires of the plaintiffs’ bar, this uncertain standard may increase liability for defendants (even if they are blameless).\nThis Comment seeks to address such questions and will use Bumble Bee Foods as its central illustration of the issues. Part II of this Comment will introduce the problem through the lenses of the Federal Rules of Civil Procedure and Article III standing by highlighting disagreement and confusion among (and sometimes within) the various federal courts. Part II will first examine the background of Rule 23 and its current parameters for class certification before investigating how circuit courts apply the Supreme Court’s rigorous analysis test to Rule 23(b)(3)’s predominance inquiry. Many circuit courts apply a de minimis limitation for uninjured class members. The Fourth Circuit applies the broadest test—what some scholars have labeled the “no untold number” test—while other circuit courts fall somewhere in between. Part III will return to the district court and Ninth Circuit’s Rule 23(b)(3) predominance reasoning in Bumble Bee Foods—namely, that the evidence need only be “capable” of proving harm—and argue that this conflicts with the Supreme Court’s current interpretation of Article III standing. This Comment will argue that, from this perspective, the de minimis limitation is most in line with the Supreme Court’s current Article III jurisprudence. Finally, Part IV will present a solution for district courts to apply when certifying a class. The proposed solution is based on the de minimis limitations of the First and D.C. Circuits as well as concrete standing requirements.