On March 27, 2013, the U.S. Supreme Court concluded in Comcast Corp. v. Behrend that a class of plaintiffs challenging Comcast Corp.’s conduct in the Philadelphia market was improperly certified.
The district court originally certified the class, finding that plaintiffs’ alleged damages could be calculated on a class-wide basis using common evidence presented by their expert, and that common questions predominated the class. Comcast argued that the model should be rejected because it did not isolate damages for individual theories of harm, but the Third Circuit affirmed.
Justice Scalia, joined by Justices Roberts, Kennedy, Thomas and Alito, found certification was inappropriate under Fed. R. Civ. P. 23(b)(3), focusing on the damages model presented. Prior to class certification, Scalia wrote, “the questions of law or fact common to the class members [must] predominate over any questions affecting individual members.” Citing Wal-Mart Stores, Inc. v. Dukes, the Court concluded that, because the lower courts refused to “entertain arguments against respondents’ damages model that bore on the propriety of class certification” they “ran afoul” of Supreme Court precedent.