Supreme Court To Decide Important Class Certification Issue Regarding Class-Wide Damages Evidence

On June 26, 2012, the U.S. Supreme Court granted certiorari in Comcast Corp. v. Behrend, No. 11-864, to decide how closely the trial court must examine the plaintiff's proposed proof of damages when deciding whether to certify a class. Under Rule 23(b)(3) of the Federal Rules of Civil Procedure, a class may be certified only if "the questions of law or fact common to class members predominate over any questions affecting only individual members." Last year, in Wal-Mart Stores, Inc. v. Dukes,¹ the Supreme Court reaffirmed that trial courts must perform a "rigorous analysis" to determine if the requirements of Rule 23 can be met. Since the Third Circuit's decision in In re Hydrogen Peroxide Antitrust Litigation,² courts have closely examined whether the plaintiff can prove with common evidence that every member of the class was injured by an alleged antitrust violation. This has led to extensive litigation on class certification about whether the alleged violation