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Life After Comcast: What Have We Learned?Katrina  Carroll

Are plaintiffs required, at the class certification stage, to submit a model showing that damages are capable of class-wide proof? And if plaintiffs do submit a damages model, is it enough to show statistically that the average class member suffered harm even if some may not have suffered any damage at all? These questions, which are of critical importance to plaintiffs and will heavily influence how class actions are prosecuted in the future, have come to the forefront in the last few years in the wake of the oft-cited and carefully scrutinized 2013 Supreme Court decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). There, the Court decertified a class of Comcast subscribers and ruled that the plaintiffs could not show at the certification stage that damages could be measured class-wide. As a result, the Court found that the plaintiffs failed to make the requisite showing of predominance under Federal Rule 23(b)(3).

Post-Comcast, are plaintiffs actually required to submit class-wide proof of damages at the certification stage? Many courts do not read the ruling to go that far. For example, the Second Circuit has declined to read any such requirement under Comcast, signaling a willingness to uphold class certification, even in the wake of what is generally perceived as difficult Supreme Court precedent. See Roach v. T.L. Cannon Corp., 778 F.3d 401, 405 (2d Cir. 2015). In the Sixth and Seventh Circuits in particular, the concept of “issues” classes is gaining momentum, whereby liability classes are certified and damage determinations are left for another day. See e.g., Glazer v. Whirlpool Corp. (In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.), 722 F.3d 838, 860 (6th Cir. 2013); Butler v. Sears, Roebuck & Co., 727 F.3d 796 (7th Cir. 2013).

But, putting aside the issue of whether Comcast requires plaintiffs to submit a class-wide damages model at all, Comcast does make clear that, where such damages models are submitted, they must satisfy Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Some courts conducting this Daubert scrutiny have accepted plaintiffs’ evidence of class-wide injury and damages and certified classes despite Comcast. Astrazeneca AB v. UFCW (In re Nexium Antitrust Litig.), 777 F.3d 9, 21 (1st Cir. 2015) (“We do not think the need for individual determinations or inquiry for a de minimis number of uninjured members at later stages of the litigation defeats class certification”).

The Supreme Court has even recently done so itself, upholding class certification in Tyson Foods Inc. v. Bouaphakeo, 194 L. Ed. 2d 124 (2016), and ruling that it was proper to use statistical sampling to show proof of class-wide liability. Though Justice Kennedy was specific to caution that Tyson was not adopting a broad rule governing the use of representative and statistical evidence in class actions, Id. at 138, the ruling came as a surprise to many.

So, where do we go from here? Post- Comcast, we still have no guidance from the Supreme Court on the question of whether proof of class-wide damages is absolutely required for class certification. Though some courts have questioned the necessity altogether, it does seem like submitting expert evidence of class damages may be a good idea in certain cases. If plaintiffs choose to submit such evidence, however, it had better satisfy Daubert. In analyzing any damages model, plaintiffs should be sensitive to the issue of whether that model allows the compensation of uninjured class members. If there is no way to solve this problem, plaintiffs should explore certification of liability-only classes and creation of damages subclasses at later litigation stages based on the category of injury suffered.