It has been two years this month since the U.S. Supreme Court issued its decision in Comcast v. Behrend, 133 S. Ct. 1426 (2013), reversing the U.S. Court of Appeals for the Third Circuit’s class certification of antitrust claims brought by more than 2 million cable subscribers. The court held the class expert’s damages model failed to establish that damages attributable to the sole antitrust theory of liability were susceptible of measurement on a classwide basis. Therefore, the class could not be certified under Federal Rule of Civil Procedure 23(b)(3), which requires that “the questions of law or fact common to class members predominate over any questions affecting only individual class members.”
The court deemed its opinion in Comcast “unremarkable,” and the dissent claimed the “ruling is good for this day and case only.” Nonetheless, many read Comcast as fitting within a trend of Supreme Court jurisprudence toughening class certification standards and requiring greater scrutiny of evidence at the class certification stage. An initially more expansive application of Comcast seemed warranted due to references by Justice Antonin Scalia, writing for the majority, to the “rigorous analysis” of evidence required at the class certification stage. Specifically, the opinion reaffirmed that courts have a “duty to take a ‘close look’ at whether common questions predominate over individual ones,” and held that the requirements of Rule 23(b)(3) cannot be satisfied when “questions of individual damages calculations will inevitably overwhelm questions common to the class.” Moreover, the opinion repeatedly stressed that a class must establish “that damages are susceptible of measurement across the entire class.”
Post-’Comcast’ Circuit Split
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
