The dissent in today’s Supreme Court decision on class certification, Comcast Corp. v. Behrends (PDF copy here), argues that “the decision should not be read to require, as a prerequisite to certification, that damages attributable to a classwide injury be measurable on a class-wide basis.” The dissenters may be the only ones who think so, though. The Court’s opinion seems fairly clear on this point:
respondents’ model falls far short of establishing that damages are capable of measurement on a classwide basis. Without presenting another methodology, respondents cannot show Rule 23(b)(3) predominance: Questions of individual damage calculations will inevitably overwhelm questions common to the class.
Slip op. at 7. The Court’s decision thus echoes the Seventh Circuit’s holding last month in Espenscheid v. DirectSat (discussed here), though the Court did not mention the decision by name.
The Comcast Court went on to criticize the specific damages model used by the plaintiffs’ expert, on the grounds that it measured damages based on an assumption that all four of plaintiffs’ liability theories were viable, whereas the district court had held (and the Supreme Court implicitly agreed) that three of the four theories could not be pursued on a class basis. Accordingly, the Court held, “the model failed to measure damages resulting from the particular antitrust injury on which petitioners’ liability in this action is premised.” With no evidence that damages as to the claims actually in issue could be proved on a class-wide basis, the Court held, certification was improper.
The decision has implications beyond that narrow fact pattern, however. The Court’s initial, more general conclusion that Rule 23(b)(3) predominance requires class-wide proof of damages will be promptly at the forefront of class certification discussions in a wide range of cases.