Earlier this week, the Supreme Court emphasized the importance, in determining whether to certify a class action, of enforcing the requirement under F.R.C.P. 23(b)(3) that “questions of law or fact common to class members predominate” over individual questions. In Comcast Corp. v. Behrend, No. 11-864 (Mar. 27, 2013), the Court reversed a decision by the Third Circuit that had upheld class certification. The complaint alleged that Comcast had violated the antitrust laws by “clustering” its cable systems -- i.e., acquiring multiple systems in a metropolitan area -- and that such “clustering” raised the prices paid by cable subscribers because it discouraged potential competitors from “overbuilding” their own systems in the same area.

The Court ruled that class certification would be proper only if the plaintiffs could establish a classwide methodology for determining damages caused by the alleged exclusion of overbuilders. The plaintiffs’ damages expert offered a classwide system for determining damages, but conceded that it included damages caused by factors other than the exclusion of overbuilders. The Court found that the need to separate out these other damages, which would require more individualized damage determinations for class members, meant that the plaintiffs had failed to show that a common question of fact -- the amount of damages -- was predominant. In reaching this decision, the Court rejected the holding of the Third Circuit that requiring such proof of damages at the class certification stage was improper and should be left for a determination at trial. The decision signals a continued willingness of the Court carefully to scrutinize decisions in the class certification area.