The question of how much the U.S. Supreme Court’s decision in Comcast v. Behrend,1 tightened the rule that a class action cannot be certified under Rule 23(b)(3) unless the district court finds, after a rigorous analysis of relevant evidence, that common questions predominate over individual ones has arrived in the lower courts. Strictly speaking, Comcast held that antitrust claims cannot be certified under Rule 23(b)(3) unless the plaintiffs present a damages model establishing that antitrust injury and damages attributable to the alleged antitrust violation can be proven through evidence common to the class. But underlying that holding is a broader recognition that the issue of whether causation and damages are susceptible to measurement on a classwide basis is an essential component of the predominance inquiry under Rule 23(b)(3).
A dissenting opinion jointly authored by Justices Ruth Bader Ginsburg and Stephen Breyer (and joined by Justices Sonia Sotomayor and Elena Kagan) argued that Comcast "breaks no new ground" on class certification standards and "should not be read to require, as a prerequisite to certification, that damages attributable to a classwide injury be measurable ‘on a classwide basis.’" The Supreme Court, however, has issued "GVR" (grant, vacate and remand) orders based on Comcast in putative breach of warranty and employment class actions, sending lawyers to pore over the decision to frame arguments about the role of the nature of proof of causation and damages in cases beyond the antitrust context. This column assesses the effect of Comcast on two of the GVR cases, both of which involved putative class action breach of warranty claims arising from alleged mold problems in washing machines.
Background
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