Comcast Corp. v. Behrend: Courts Must Assess Merits Of Plaintiffs’ Damages Evidence At Class Certification

Yesterday, in Comcast Corp. v. Behrend, 569 U.S. __ (2013), the Supreme Court answered a looming class certification question left open by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. __ (2011): whether a putative class action plaintiff must offer credible evidence of damages applicable on a class-wide basis before the district court can certify a class under Federal Rule of Civil Procedure 23(b)(3). In a 5-4 opinion, the Court answered yes. The decision promises to have particularly significant implications in putative antitrust, employment, and consumer protection class actions, where plaintiffs traditionally rely on simplified assumptions and modeling at the class certification stage to persuade courts that proof of class-wide damages would be possible. The Behrend decision confirms that defendants in such cases should not overlook potential flaws in putative class plaintiffs’ damages theories at the outset of the case.