The United States Supreme Court has granted certiorari in another class action to be heard during the October 2012 term. In Comcast Corp. v. Behrend, No. 11-864, an antitrust class action, the Court will address the following issue:
Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.
The case is an appeal from the Third Circuit Court of Appeals’ ruling in 2011 upholding the district court’s finding that the plaintiff had presented by a preponderance of the evidence that damages could be proved on a common, class-wide basis. However, a lengthy opinion from Judge Jordan, concurring in part and dissenting in part, took issue with the conclusions reached by the plaintiffs’ expert that antitrust damages could be established on a common basis for the class as a whole.
As with many of the cases addressed by the Supreme Court over the past few years, this case provides an opportunity for the court to either enter a specific ruling narrowly tailored to the area of law in which it applies (here, antitrust or competition law) or a sweeping ruling impacting the procedure governing class certification more generally. In particular, the Behrend case could potentially resolve the issue whether difficulties in proving damages on a class-wide basis is a reason to deny certification. For many years, lower courts have relied on the rule that individualized damages issues are not a barrier to class certification. A reversal of that rule could have a major impact on the viability of class actions in a variety of contexts.
[…] facts and legal implications of Comcast v. Behrend, see the Philadelphia Inquirer’s coverage, Paul Karlsgodt, and Sean Wajert and, on the related case of Gates v. Rohm & Haas, Andrew Trask. […]
[…] My partner, Bob Abrams, sent me a copy of the order granting Plaintiffs’ Renewed Motion for Class Certification in Allen v. Dairy Farmers of America, an antitrust class action brought on behalf of dairy farmers alleging monopolization and a conspiracy to fix milk prices by various milk cooperatives and processors. Abrams’ team has been appointed as class counsel for one of the subclasses certified as part of the order. The opinion includes an interesting analysis of at least two important issues: First, the extent to which intra-class conflicts of interest can prevent class certification and the extent to which the creation of subclasses can remedy those conflicts; and Second, the extent to which a defendant can avoid class certification in an antitrust case by pointing out alleged flaws in the plaintiffs’ expert’s opinion that a common, class-wide antitrust injury exists or by presenting conflicting expert testimony. The second issue is one that may be clarified when the Supreme Court rules later this term on Comcast v. Behrend. […]
[…] certification, a question on which the Supreme Court may shed some light when it rules on Comcast v. Behrend later this term. At the moment, circuits that require a Daubert analysis include the Fourth, […]