In Comcast Corp. et al. v. Caroline Behrend et al, the United States Supreme Court held that the Third Circuit improperly failed to consider the class’s proposed damages model before certifying the class. In a split decision, the majority held that lower courts must consider the merits before certifying a class, when necessary, to ensure that Rule 23’s requirements are satisfied.
The majority stressed that a plausible means to measure class-wide damages was not enough to move forward with class certification. The lower court must determine that the proposed method is a reasonable one. In this case, the model might well have been unreasonable because it relied on all four of the plaintiffs original liability theories when only one had been upheld by the court. “[A] model purporting to serve as evidence of damages in this class action,” Justice Scalia explained for the majority “must measure only those damages attributable to that theory.”
The dissenting justices emphasized that the case did not hold that class-wide damage calculability was an essential element of certification. Neither party addressed that issue, and the dissent emphasized that damages were simply one issue going into the calculus of whether “’questions of law or fact common to class members predominate over any questions affecting only individual members.’” The dissenters emphasized that it is well established the inability to calculate damages on a class basis does not bar class certification. “In particular, when adjudication of questions of liability common to the class will achieve economies of time and expense,” the dissenting justices observed, “the predominance standard is generally satisfied even if damages are not provable in the aggregate.”