Six Months Since Comcast: What Do Recent Decisions Mean For Antitrust Practitioners?

I. Introduction

Every antitrust lawyer should be familiar with the U.S. Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), which overturned a 3rd U.S. Circuit Court of Appeals decision affirming an order certifying an antitrust class action under Federal Rule of Civil Procedure 23(b)(3). The Supreme Court held that the plaintiffs’ expert’s damages model was unable to measure class-wide damages attributable to the plaintiffs’ theory of antitrust impact. Because of this fundamental flaw in the damages model, individual damage calculations would overwhelm questions common to the class, and the class therefore could not be certified under Rule 23(b)(3).

In the six months since Comcast issued, decisions applying it have fallen into three general categories: (1) opinions distinguishing Comcast, finding an acceptable common formula at the class certification stage and Rule 23(b)(3)’s predominance test satisfied; (2) opinions certifying a class as to liability only under Rule 23(c)(4) (“When appropriate, an action may be brought or maintained as a class action with respect to particular issues.”); and (3) opinions applying Comcast and rejecting class certification on the ground that impact cannot be determined on a class-wide basis or no common formula exists for determining damages on a class-wide basis. See, e.g., Jacob v. Duane Reade, Inc., No. 11 Civ. 160 (JPO), 2013 U.S. Dist. LEXIS 111989 (S.D.N.Y. Aug. 8, 2013) (discussing decisions since Comcast).

Although courts have applied Comcast inconsistently, the decisions thus far suggest that Comcast may have a greater effect on class certification in antitrust cases than in other areas, because of the complexity of isolating the impact of various categories of alleged anticompetitive conduct, and the difficulty of disaggregating the conduct for class-wide damages models. Accordingly, defendants in antitrust cases should continue to see Comcast as offering an opportunity for an early test of plaintiffs’ damages models regarding class-wide damages.

This article first summarizes the Comcast decision. It then provides a high-level overview of decisions since Comcast, focusing on appellate decisions and a sampling of district court antitrust cases. Finally, we offer some thoughts on what these cases tell us about Comcast’s likely effects on antitrust class actions. In brief, recent decisions provide defense counsel with ammunition to use Comcast to challenge class certification under Rule 23(b)(3) by attacking plaintiffs’ (and their experts’) theories regarding class-wide impact and damages.

II. Discussion

A. The Comcast Decision

From 1998 to 2007, Comcast allegedly engaged in a series of transactions described as “clustering” operations, in which the company unlawfully swapped its own cable systems outside of a targeted region for competitors’ systems located within the region. Plaintiffs alleged that Comcast obtained a monopoly, or attempted to obtain a monopoly, on cable services in violation of Sections 1 and 2 of the Sherman Act. They filed a motion to certify a class under Rule 23(b)(3), the relevant portion of which permits certification only if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members . . . .”

Plaintiffs proposed four theories of class-wide injury. The district court rejected three of the theories but accepted a fourth theory—that clustering increased Comcast’s bargaining power relative to content providers (the “overbuilder-deterrence” theory). The district court further found that the damages resulting from overbuilder-deterrence could be calculated on a class-wide basis. Plaintiffs relied on a regression model that compared actual cable prices with hypothetical prices but for Comcast’s allegedly anticompetitive activities. Critically, the expert who created the model acknowledged that it did not—and could not—isolate damages resulting only from overbuilder-deterrence, but rather provided an estimate of aggregate damages based on all four of plaintiffs’ theories of antitrust impact. Nonetheless, the district court certified the class and the 3rd Circuit affirmed.

The Supreme Court reversed. Justice Antonin Scalia’s majority opinion reiterated the Court’s admonition in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), that “certification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that [Rule 23’s] prerequisites . . . . have been satisfied.’” Comcast, 133 S. Ct at 1432 (quoting Wal-Mart, 131 S. Ct. at 2551). The majority “start[ed] with an unremarkable premise. If respondents prevail on their claims, they would be entitled only to damages resulting from reduced overbuilder competition” (Comcast, 133 S. Ct. at 1433)—the only antitrust impact theory accepted for class-action treatment by the district court. To establish a class-wide measurement of damages, the model must “measure only those damages attributable to that theory.” Id. The Court explained that plaintiffs’ damage “model failed to measure damages resulting from the particular antitrust injury on which [Comcast’s] liability in this action is premised.” Id. Under these circumstances, the model could not “possibly establish that damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3).” Id. The Court explained that, “The first step in a damages study is the translation of the legal theory of the harmful event into an analysis of the economic impact of that event. . . . The district court and the Court of Appeals ignored that first step entirely.” Id. at 1435 (italics in original; citations omitted). The Court concluded that the class was improperly certified under Rule 23(b)(3) and reversed. Id.

The dissent, written jointly by Justices Ruth Bader Ginsburg and Stephen Breyer (joined by Justices Sonia Sotomayor and Elena Kagan), tried to limit the majority’s holding. It argued that the majority’s opinion “breaks no new ground on the standard for certifying a class action under [Rule] 23(b)(3),” and the decision “should not be read to require, as a prerequisite to certification, that damages attributable to a class-wide injury be measurable ‘on a class-wide basis.’” Id. at 1436 (citation omitted). The dissent reasoned, “when adjudication of questions of liability common to the class will achieve economies of time and expense, the predominance standard is generally satisfied even if damages are not provable in the aggregate.” Id. at 1437. Thus, “[r]ecognition that individual damages calculations do not preclude class certification under Rule 23(b)(3) is well nigh universal.” Id. The dissent also argued that the majority’s decision “is good for this day and case only. In the mine run of cases, it remains the ‘black letter rule’ that a class may obtain certification under Rule 23(b)(3) when liability questions common to the class predominate over damages questions unique to class members.” Id. at 1437 (citation omitted).

The case was remanded to the district court, which allowed plaintiffs to file a new motion for class certification. Plaintiffs’ new motion understandably is far less ambitious than their previous effort. See Glaberson v. Comcast Corp., No. 03-6604 (E.D. Pa. Aug. 19, 2013), ECF No. 560. Plaintiffs sliced several years off the class period and limited the geographic area to only five of the 18 counties for which they originally sought certification. Defendants have moved to strike plaintiffs’ motion on various procedural grounds, and they also argue that the motion is futile because the latest expert report calculates damages that cannot be attributed to the allegedly unlawful deterrence of overbuilding, and plaintiffs are unable to demonstrate that the extent of overbuilding was the same in each of the five counties or that the extent of overbuilding in each county is irrelevant to their claims. See Glaberson v. Comcast Corp., No. 03-6604 (E.D. Pa. Sept. 19, 2013), ECF No. 564-1.1

B. Key Appellate Decisions Interpreting and Applying Comcast

The Supreme Court sent a clear message immediately following its Comcast decision that, regardless of subject matter in a particular case, courts must undertake a searching inquiry into Rule 23(b)(3)’s predominance criterion. Within days of its decision, the Court granted three petitions for certiorari and vacated and remanded the cases for further consideration in light of Comcast. Two were defective products cases—Whirlpool v. Glazer, No. 12-322 (U.S. Apr. 1, 2013), and Sears, Roebuck and Co. v. Larry Butler, et al., No. 12-1067 (U.S. June 3, 2013)—and one was a wage and hour class action, RBS Citizens, N.A. v. Ross, No. 12-165 (U.S. Apr. 1, 2013), which settled just a few weeks after being remanded. The Court directed the lower courts to take a hard look at Rule 23(b)(3) class certification motions in light of Comcast.

At the time of this article, at least seven appellate decisions have come down involving class certification issues under Rule 23(b)(3). These decisions demonstrate a fair amount of variability in how courts are applying (or avoiding) Comcast. The 6th Circuit (in Whirlpool) and 7th Circuit (in Butler), addressing Comcast on remand, distinguished Comcast and affirmed class certification in defective products cases. Other circuits have issued class certification decisions citing, if not examining, Comcast, with different results. The 2nd and 9th Circuits affirmed district court orders certifying classes, but the 8th and 10th Circuits vacated or reversed orders certifying classes. In the only antitrust case among the appellate decisions thus far, the D.C. Circuit recently vacated an order certifying a class in a price-fixing case, In re Rail Freight Fuel Surcharge Antitrust Litigation, based on a critically flawed damages model.

1. The Non-Antitrust Cases

a. Whirlpool and Butler: Applying Comcast on Remand

The circuit courts deciding the two non-settled cases that the Supreme Court remanded in the wake of ComcastWhirlpool and Butler—ruled that the cases were distinguishable from Comcast and affirmed orders certifying the classes.

In Whirlpool, plaintiffs alleged that Whirlpool front-loading washing machines were defective, leading to the growth of mold and mildew in some of the machines. In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 844 (6th Cir. 2013). The district court bifurcated liability and damages under Rule 23(c)(4), certifying a class for liability under Rule 23(b)(3) and leaving damages for individual determination, and the 6th Circuit affirmed. Id. at 844-45. The 6th Circuit concluded that Comcast did not change its previous analysis. The court noted that the Supreme Court had relied on “the straightforward application of class-certification principles” in reaching its decision, id. at 860 (citing Comcast, 133 S. Ct. at 1433), and cited the Comcast dissent’s position that “the opinion breaks no new ground on the standard for certifying a class action under Federal Rule of Civil Procedure 23(b)(3).” Id. (citing Comcast, 133 S. Ct. at 1436). According to the 6th Circuit, the Comcast dissent pointed to the key distinguishing factor in Whirlpool—that damages would be deferred for individual determination. See id. (“Where determinations on liability and damages have been bifurcated . . . the decision in Comcast—to reject certification of a liability and damages class because plaintiffs failed to establish that damages could be measured on a classwide basis—has limited application.”). The court ruled that common questions as to liability predominated over the need for individual damages calculations that would take place in separate proceedings if there is a finding of liability. Id. at 860-61.

Similarly, in Butler, Judge Richard Posner wrote an opinion reinstating the 7th Circuit’s pre-Comcast decision which affirmed a district court’s certification of two liability-only classes under Rule 23(c)(4). Butler v. Sears, Roebuck and Co., No. 12-8030, 2013 U.S. App. LEXIS 17748 (7th Cir. Aug. 22, 2013). Like Whirlpool, Butler was a defective product case stemming from mold and mildew building up in some front-loading washers and defective control units. Id. at *1-2. Judge Posner did not cite the Comcast dissent, instead focusing on the possibility described in Comcast “that damages could be attributed to acts of the defendants that are not challenged on a class-wide basis . . . .” Id. at *8. In contrast, in Butler “there is no possibility in this case that damages could be attributed to acts of the defendants that are not challenged on a class-wide basis; all members of the mold class attribute their damages to mold and all members of the control-unit class attribute their damages to a defect in the control unit.” Id. As did the 6th Circuit in Whirlpool, Judge Posner pointed to the fact that the court had certified only a liability class under Rule 23(c)(4) as distinguishing Butler from Comcast. Id. at *9-10.2

b. Other Circuit Court Decisions Citing Comcast and Affirming Orders Certifying Class Actions Under Rule 23(b)(3)

Since Comcast, appellate courts have affirmed orders certifying class actions either by distinguishing the case or citing it without lengthy analysis of its impact.

In Leyva v. Medline Industries, Inc., 716 F.3d 510 (9th Cir. 2013), the 9th Circuit reversed a district court order denying class certification in an unpaid wages case, ruling that plaintiffs’ damages model would suffice for determining individual damages. “[U]nlike in Comcast, if putative class members prove Medline’s liability, damages will be calculated based on the wages each employee lost due to Medline’s unlawful practices.” Id. at 514. This was supported by the existence of a “computerized payroll and time-keeping database that would enable the court to accurately calculate damages and related penalties for each claim.” Id. The court reversed and remanded with an instruction that the district court enter an order certifying the class.3

In In re US Foodservice Inc. Pricing Litigation, No. 12-1311, 2013 U.S. App. LEXIS 18141 (2d Cir. Aug. 30, 2013), the 2nd Circuit affirmed a class certification order in a case where plaintiffs asserted that U.S. Foodservice engaged in fraudulent billing practices with respect to tens of thousands of customers. Despite the individual relationship between the defendant and each customer, the 2nd Circuit found that “Plaintiffs’ proposed measure for damages is . . . directly linked with their underlying theory of classwide liability (that the misrepresentations on the invoices caused overpayments) and is therefore in accord with the Supreme Court’s recent decision in [Comcast].” Id. at *36 n.8. And the plaintiffs’ expert “testified that individual damages issues could be calculated on a classwide basis with a simple formula using data extracted from [defendant’s] databases . . . .” Id. at *54. Accordingly, the 2nd Circuit affirmed the order certifying the class.

c. Circuit Court Decisions Citing Comcast and Overturning Orders Certifying Class Actions Under Rule 23(b)(3)

Other appellate decisions since Comcast have reversed orders certifying class actions under Rule 23(b)(3).
For example, in Halvorson v. Auto-Owners Insurance Co., 718 F.3d 773 (8th Cir. 2013), the 8th Circuit reversed a district court order certifying a class of policyholders in North Dakota who brought breach of contract and bad faith claims against their insurer. The plaintiffs alleged they had submitted claims for medical expenses, but received less than the claimed amounts under a third-party claim review based on a percentile formula. Id. at 774-75. The district court certified a class under Rule 23(b)(3), finding that the central question was whether the policyholders’ use of the third-party bill review process was reasonable in and of itself, and that this issue predominated over the question of whether the result in each individual class member’s case represented a “usual and customary” charge under North Dakota law. Id. at 779-80. The 8th Circuit reversed, citing Comcast and holding that individual determinations of what was “usual and customary” would “overwhelm questions common to the class.” Id. at 779 (citing Comcast, 133 S. Ct. at 1433). The court held that members of the class “incurred different injuries, which were treated by different medical providers charging different prices for their services,” and this would necessitate individual fact inquiries to determine whether each class member had an injury and thus, standing. Id. at 780.

The 10th Circuit, in a pair of decisions issued on July 9, 2013, vacated decisions certifying Rule 23(b)(3) classes of Oklahoma and Kansas royalty owners in oil and gas leases who claimed that, among other things, the defendant violated the “implied duty of marketability” by not properly preparing oil and gas products for market. Chieftain Royalty Co. v. XTO Energy, Inc., No. 12-7047, 2013 U.S. App. LEXIS 13837 (10th Cir. July 9, 2013); Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213 (10th Cir. 2013). In Chieftain, the court rejected the district court’s finding that Rule 23(a)’s commonality requirement was satisfied, holding that the lower court did not properly examine potential lease language variations among class members. Chieftain, 2013 U.S. App. LEXIS 13837, at *8-9. Then, the court remanded for reconsideration of Rule 23(b)(3)’s predominance requirement “in light of the Supreme Court’s recent decision in [Comcast].” Id. at *12. The court found that the district court had not considered possible individualized questions in assessing predominance, in particular “the elements of the underlying causes of action” as they related to the “array of theories, including contract, tort, and equity” underlying plaintiffs’ claims. Id. (citation omitted). Likewise, in Roderick the 10th Circuit cited Comcast’s holding that the district court “has a duty to take a close look at whether common questions predominate over individual ones” in instructing the lower court to consider the lease language variations as well as “the extent to which material differences in damages determinations will require individualized inquiries.” Roderick, 725 F.3d at 1220.

2. The Antitrust Cases

As can be seen from the discussion above, appellate courts in several non-antitrust cases followed the Supreme Court’s direction and conducted the required rigorous analysis of whether plaintiffs can prove class-wide injury and damages, or instructed district courts to do so. That is encouraging for defendants in antitrust cases, where expert reports are amenable to rigorous scrutiny and therefore are susceptible to orders denying class certification under Rule 23(b)(3).

a. The D.C. Circuit’s Decision in In re Rail Freight Fuel Surcharge Antitrust Litigation

The leading Rule 23(b)(3) antitrust decision since Comcast is In re Rail Freight Fuel Surcharge Antitrust Litigation, 725 F.3d 244 (D.C. Cir. 2013), in which a class of shippers alleged that they had paid inflated shipping prices due to price fixing of fuel rate surcharges by the four major freight railroads. The D.C. Circuit granted an interlocutory appeal of the class certification decision under Rule 23(f), conducted a rigorous analysis under Rule 23(b)(3) in light of Comcast, and then vacated the district court’s class certification order and remanded the case.

Plaintiffs’ expert submitted a damages model that, according to defendants, led to false positives—the model detected injury not just as to the purported class members, but also as to a control group of shippers that could not have been injured by the conspiracy because they were operating under legacy contracts that pre-dated the alleged conspiracy. 725 F.3d at 252-53. The D.C. Circuit explained that the Supreme Court tightened the standard for class certification under Rule 23(b)(3). Id. at 253. It noted that “[b]efore [Comcast] the case law was far more accommodating to class certification under Rule 23(b)(3). . . . It is now clear, however, that Rule 23 not only authorizes a hard look at the soundness of statistical models that purport to show predominance—the rule commands it.” Id. at 254. The court focused on whether the district court had scrutinized, to the degree demanded by Comcast, the damages model’s ability to distinguish between the false positives and the class members’ legitimate injuries, finding that “[Comcast] sharpens the defendants’ critique of the damages model as prone to false positives. . . . If the damages model cannot withstand . . . scrutiny . . . that is not just a merits issue. . . . No damages model, no predominance, no class certification.” Id. at 253. As a result, “we have no way of knowing the overcharges the damages model calculates for class members is any more accurate than the obviously false estimates it produces for legacy shippers.” Id. at 254. The court held that the district court had not adequately scrutinized the model, and remanded for reconsideration in light of Comcast. The parties recently briefed for the district court the scope of review required by the remand order.

Rail Freight makes no mention of the Comcast dissent, which as explained above tried to paint the majority opinion as imposing no new limits on Rule 23(b)(3). Rather, Rail Freight suggests that a full or nearly full analysis of the admissibility of the expert’s opinion under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), may be necessary at the class certification stage to evaluate the plaintiffs’ expert’s models regarding class-wide impact and damages.4

b. Class Certification Decisions in Antitrust Cases in the District Courts

Two recent district court decisions demonstrate different approaches taken in analyzing Comcast’s impact on class certification in antitrust cases: one denied certification, the other granted it.

In In re High-Tech Employee Antitrust Litigation, 289 F.R.D. 555 (N.D. Cal. 2013), the court denied the plaintiffs’ motion to certify a class of all salaried employees of seven large technology companies and an alternative class of technical employees of those companies, based on allegations that the companies conspired to suppress salaries and wages. The court held that after Comcast it had a “duty to look closely at whether [Rule 23(b)(3)’s predominance criterion] is satisfied.” Id. at 564. As part of that analysis, “[w]hen parties stage a battle of the experts over whether Rule 23’s requirements have been satisfied . . . a court must not merely determine whether such evidence is admissible, but also judge the persuasiveness of the evidence presented.” Id. at 567 (citations omitted). And the court did just that; it conducted a very lengthy and detailed analysis of both the facts and the expert reports—in short, the court did what Comcast commands courts to do.

The plaintiffs submitted an expert report that, according to the court, offered “theories subject to common proof for how [d]efendants’ anti-solicitation agreements suppressed compensation broadly.” Id. at 570. Theory, however, “[wa]s not sufficient to satisfy Rule 23(b)(3)’s requirements.” Id. The court therefore analyzed plaintiffs’ documentary, econometric, and statistical evidence, expressing concern that the evidence “may not be sufficient to show that all or nearly all Class members were affected by the anti-solicitation agreements . . . .” Id. at 576. The court rejected two of the plaintiffs’ expert’s three statistical methods, while accepting one as a plausible method for showing generalized harm and estimating class-wide damages. Id. at 576-82. The court concluded that the plaintiffs satisfied Rule 23(b)(3) as to the antitrust violation and damage elements, but had not done so as to class-wide impact. Id. at 582-83. Therefore, the court denied the motion for class certification, while granting leave to amend in light of ongoing discovery that might bear on certification. Id. at 584. Plaintiffs since have filed a supplemental motion for certification seeking to narrow the proposed class to include only technical employees. Defendants opposed, arguing that plaintiffs cannot prove that changes to compensation for some employees affect all employees at each of the seven companies. The court held a hearing on this motion in August, but as of the time of this article the court had not yet ruled although some of the consolidated cases recently settled.

In contrast, the court in In re Cathode Ray Tube (CRT) Antitrust Litigation, MDL No. 1917, No. C-07-5944 (N.D. Cal. Sept. 24, 2013), ECF No. 1950, rejected defendants’ challenge to a class of indirect purchasers’ certification motion in a price-fixing case. Plaintiffs alleged that defendants engaged in a price-fixing conspiracy with respect to cathode ray tubes used in televisions and computer monitors. The court asked the Interim Special Master (ISM) to conduct an analysis of plaintiffs’ damages models, as Comcast suggests, and the ISM did so, accepting briefing directed specifically to Comcast. The ISM conducted a lengthy review of the competing expert reports and recommended certifying the class. In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No. 1917, No. C-07-5944 (N.D. Cal. June 20, 2013), ECF No. 1742. In reviewing that recommendation, the court declined to conduct a “full-blown merits analysis,” ruled that Comcast did not “require[] putative class action plaintiffs to prove and calculate their damages at the class certification phase,” and adopted the ISM’s recommendation in full. Id., ECF No. 1950, at 15.

III. Comcast in Practice: What Do the Recent Decisions Mean for Defendants in Antitrust Class Actions?

After only six months of decisions since Comcast, it obviously is premature to predict exactly what Comcast’s lasting impact will be on Rule 23(b)(3) certification in antitrust cases, but some themes are emerging. Outside of the antitrust context, a number of appellate courts have applied Comcast, conducted the required Rule 23(b)(3) analysis regarding class-wide impact and damages, and denied certification (or remanded) in cases where previously the class may well have been certified. And in Rail Freight and antitrust cases in the district courts, judges have conducted the sort of Rule 23(b)(3) analysis that Comcast requires.

This is welcome news for antitrust practitioners on the defense side. Proving class-wide injury and damages in antitrust cases is complex, difficult, and often imprecise, typically involving sophisticated economic analyses, econometrics, statistics, and regression models. This sort of analysis is far more complicated than, for example, simple mathematical calculations based on computerized records of purchases of a defective product. This level of complexity offers plenty of opportunity for antitrust defendants to attack the plaintiffs’ theory of Rule 23(b)(3) predominance with respect to both class-wide impact and damages. As a result, fewer pending antitrust cases should be certified, or at least plaintiffs will be forced to trim their sails as the plaintiffs in Comcast did on remand or the plaintiffs in High-Tech Employees did in their supplemental motion for class certification. In addition, new antitrust class actions are likely to be more measured and limited in the scope and breadth of their allegations of anticompetitive conduct, injury and damages.

Antitrust defendants should press the court to conduct a full and rigorous Rule 23(b)(3) analysis based on plaintiffs’ experts’ reports and models. In doing so, it is critical to explain that proving class-wide injury and damages in antitrust cases is more complicated than in many other cases, and if it is necessary to delve into the facts and economic analysis in cases in which certification was granted and denied. This is particularly true for, among others, cases involving varying relationships among class members and defendants, extended distribution systems for allegedly affected products, allegations of intermittent anticompetitive conduct, and cases involving multiple theories of anticompetitive conduct or liability to which class-wide injury and damages are allegedly linked. That means, of course, retaining well-credentialed and thoughtful experts as soon as possible to help formulate a discovery plan to demonstrate the problems with the plaintiffs’ experts’ models, to build competing models, and to run their own econometrics and regression analyses. Defendants’ experts should be on the lookout for identifying potential evidence of false positives like those uncovered in Rail Freight, testing plaintiffs’ models against control groups, and using other methods to uncover flaws that undercut plaintiffs’ efforts to prove class-wide injury and damages.


 

Views expressed in this article do not necessarily represent those of Orrick, Herrington & Sutcliffe LLP or any of its clients. David Goldstein is a partner in Orrick, Herrington & Sutcliffe LLP’s San Francisco office; he is a member of the Litigation and Antitrust and Competition groups; Shannon Leong is an associate in Orrick’s San Francisco office; she is a member of the Litigation Group. Richard Rinkema is a senior associate in Orrick’s Washington, D.C. office; he is a member of the Litigation and Antitrust and Competition groups.


1. This argument flows from the Supreme Court’s observation that “even if the model had identified subscribers who paid more solely because of the deterrence of overbuilding, it still would not have established the requisite commonality of damages unless it plausibly showed the extent of overbuilding (absent deterrence) would have been the same in all counties, or that the extent is irrelevant to effect upon ability to charge supra-competitive rates.” Comcast, 133 S. Ct. at 1435 n.6.
2. The 9th Circuit recently denied a petition to review, and a petition for rehearing, a class certification order arising from washing machine mold issues similar to those in Whirlpool and Butler. The case is Cobb v. BSH Home Appliances Corp., No. 13-80000 (9th Cir. Apr. 1, 2013). BSH Home Appliances has filed a petition for a writ of certiorari, which is available at 2013 U.S. S. Ct. Briefs LEXIS 3124.
3. The 9th Circuit recently affirmed an order certifying a meal-break subclass under Rules 23(a)(2) and (b)(3). Abdullah v. U.S. Sec. Assocs., Inc., Opinion, No. 11-55653 (9th Cir. Sept. 27, 2013). It rejected the defendant’s argument that individual issues would predominate because its time records would not show which meal periods were “off duty” meal periods for any employee. The court did not cite Comcast in reaching its decision.
4. There currently is a split among the circuits regarding the type of Daubert analysis required at the class certification stage. Compare, e.g., Messner v. Northshore Univ. Health Sys., 669 F.3d 802 (7th Cir. 2012) (Daubert fully applies at class certification stage); Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2012) (recognizing need for Daubert analysis at class certification stage) with In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604 (8th Cir. 2011) (limited “tailored” Daubert analysis sufficient at class certification stage), cert. denied, 133 S. Ct. 1752 (2013). The Supreme Court did not resolve this issue in Comcast.

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