The United States Supreme Court Takes Another Look at Class Actions

Because the United States Supreme Court decides so few cases in a year, it cannot rule on every case in which the Court might perceive error.  Instead, the Court will focus its attention on particular areas of law and periodically change that focus.  The United States Supreme Court is going through a phase of focusing its attention on class action litigation.  The Supreme Court appears to not like what it sees going on in the lower courts and is issuing decisions intended to require the lower courts to more rigorously apply the requirements of certifying a class. 

In Comcast Corp. v. Behrend, Case No. 11-864 (decided Mar. 27, 2013), the Supreme Court ordered a class decertified and ruled that the lower courts had not properly applied the standards of certifying a class.  The plaintiff class in Behrend claimed that Comcast had violated federal antitrust laws by engaging in anticompetitive practices that produced above-competitive prices for cable services in the Philadelphia area.  The plaintiff class asserted four theories of antitrust liability against Comcast.  However, the district court concluded that it could certify a class for only one of the liability theories.  The class presented expert testimony of the damages suffered by the class.  However, that damage model was based on all four of the original liability theories.  The class offered no methodology for calculating the class’s damages resulting from the single alleged antitrust violation for which a class had been certified.

Comcast opposed class certification, arguing that the damages model did not show what class-wide damages resulted from the sole liability claim at issue.  The lower courts rejected that argument.  However, the Supreme Court accepted it.

Certification of a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure requires that questions common to all class members predominate over questions unique to individual class members.  The Supreme Court majority held that because the class’s damage model did not match its liability theory, the class could not prove damages on a class-wide basis.  Therefore, the predominance requirement was not satisfied.

Comcast Corp. v. Behrend does not address a knotty legal issue.  It really is a message to the lower federal courts.  In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court in 2011 rejected the certification of a class and ruled that the requirements for certifying a class needed to be more rigorously applied.  The Comcast Corp. v. Behrend case reinforces the message in the Wal-Mart case and shows that the Supreme Court wants district courts to take a more critical look at requests for certification of a class.

The opinion is available at

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