Products liability defense attorneys are facing a flurry of consumer class actions. Defending such actions and defeating certification can be exceedingly difficult at times, especially in relatively permissive jurisdictions like California. As of March 27, 2013, class action defense attorneys thought they had a new weapon in their arsenal – Comcast v. Behrend.

In Comcast v. Behrend, 133 S.Ct. 1426 (2013), the Supreme Court held that where a plaintiff cannot establish that a damages model can be applied across an entire class, that class could not be certified because it failed to meet the Rule 23(b)(3) predominance requirement. The Court in Comcast specifically reasoned that “[q]uestions of individual damage will inevitably overwhelm questions common to the class,” absent a common damages model thereby defeating certification. Id. at 1433.

But was Comcast really a boon for defendants? Unfortunately, we are not sure, and we may be going back to the Supreme Court to find out.

After Comcast, there has been a split among courts regarding what the decision actually means. According to The Honorable J. Paul Oetken in Jacob v. Duane Reade, this struggle has prompted Comcast to be applied in three different ways: (1) some courts distinguish Comcast, finding a common damage formula at the class certification stage; (2) some courts follow Comcast’s lead and reject class certification because no common damage formula exists; and (3) some courts take a middle road and, employing Rule 23(c)(4), opt to bifurcate the certification decision. -- F.R.D. ---, 2013 WL 4028147, at *3 (S.D.N.Y. Aug. 8, 2013)

In light of the noted split and the emerging “middle ground” approach, Whirlpool has asked the Supreme Court to clarify part of its decision in Comcast. On October 7, 2013, counsel for Whirlpool petitioned the Supreme Court for certiorari in Whirlpool Corporation v. Glazer, No. 13-431, 2013 WL 5532730 (Oct. 7, 2013).

The first time Whirlpool came before the Sixth Circuit, the appellate court affirmed certification of a class of 200,000 Ohio residents whose washing machines allegedly were defective. After the adverse ruling, Whirlpool petitioned the Supreme Court for certiorari. In a terse order, the Supreme Court “GVRed” or granted certiorari, vacated and remanded the case back to the Sixth Circuit in light of its holding in Comcast.

On remand, the Sixth Circuit affirmed certification, determining that the case “[w]as different from Comcast,” because “the district court certified only a liability class and reserved all issues concerning damages for individual determination; [whereas] in Comcast Corp. the court certified a class to determine both liability and damages.” 722 F.3d 838, 860 (6th Cir. 2013). Rejecting Whirlpool’s argument that the requirement that a court make individual damage determinations violated Comcast, the Sixth Circuit held that “[t]o the extent that Comcast Corp. reaffirms the settled rule that liability issues relating to injury must be susceptible of proof on a classwide basis to meet the predominance standard, our opinion thoroughly demonstrates why that requirement is met in this case.” Id. The Sixth Circuit in Whirlpool explained that “[o]nce the district court resolves under Ohio law the common liability questions that are likely to generate common answers in this case, the court will either enter judgment for Whirlpool or proceed to the question of plaintiffs’ damages.” Id. at 861.

In its recent Petition for Certiorari, Whirlpool asks the Supreme Court to decide “Whether the Rule 23(b)(3) predominance requirement can be satisfied when the court has not found that the aggregate of common liability issues predominates over the aggregate of individualized issues at trial and when neither injury nor damages can be proven on a classwide basis.” In the petition, Whirlpool further argues that “Comcast establishes a fortiori that class certification is improper” in its case and that “[t]he Sixth Circuit’s admission that ‘all issues concerning damages’ were reserved for ‘individual determination’ means this case fails the Comcast test for certification.”

Thus, it appears that product liability defense attorneys might have prematurely celebrated Comcast’s import on class actions. Those who believed it was the next Dukes may come to realize that they were wrong. While the decision seemed to have teeth, it may be that Comcast was merely a hollow “victory.” If that is the case, then defense attorneys may be faced with numerous situations where a class is certified as to liability, but is broken into individual trials as to damages