Comcast Corp. v. Behrend: A Close Look At Class-Wide Proof Of Damages

On March 27th, the Supreme Court issued a notable opinion addressing not only the interplay between class certification and merits issues, but also the relationship between Rule 23(b)(3) predominance and damages. The decision, Comcast Corp. v. Behrend, strongly reinforces the high court's earlier decision in Wal-Mart Stores, Inc. v. Dukes that courts must closely examine plaintiffs' damages theories even if that examination intersects with merits issues. It also undermines some courts' and commentators' long-held belief that individualized issues of damages are not an obstacle to class certification.  

Behrend involved a suit by Comcast subscribers who alleged that Comcast violated antitrust laws by "clustering" its cable television services in Philadelphia through swaps of its systems outside the region for competitor systems in the region.  The plaintiffs sought to certify a class under Rule 23(b)(3).  While the plaintiffs proposed four damages theories, the