Consistent with recent Supreme Court precedent on class actions,1 Comcast v. Behrend2 has now made clear that the rigorous analysis required for class certification applies not only to issues of liability, but also to the subjects of causation and damages. And while Comcast will always be known as a "damages" class action opinion, its most lasting legacy may revolve around what the majority had to say about causation and disaggregation of damages.
With Justice Antonin Scalia delivering the majority opinion, the court in Comcast reversed a Third Circuit decision that had upheld a district court’s certification of a class of two million former and current Comcast cable subscribers. Finding that plaintiffs’ damages model did not and could not establish antitrust injury and damages through common proof, the court held that, as a matter of law, the proposed class failed to establish that "questions of law or fact common to class members predominate over any questions affecting only individual members" as required under Federal Rule of Civil Procedure 23(b)(3).3
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