State Court Adoption Of Comcast V. Behrend

In Comcast v. Behrend, 569 U.S. 27 (2013), the United States Supreme Court clarified the requirements for establishing that classwide injury and damages predominate over individual issues for the purposes of FRCP 23(b)(3). In particular, where a party relies on a damages model to establish predominance, the model must be consistent with the theory of liability and "measure those damages attributable to that theory." Id. at 35. A defendant may challenge the damages model to show that "questions of individual damage calculation will inevitably overwhelm questions common to the class." Id. at 34. In turn, federal courts should perform a "rigorous analysis" to determine the soundness of the model, even if such inquiry will "overlap with the merits of the plaintiff's underlying claim." Id. at 34-35.