Walmart Sequel - More SCOTUS Hostility to Class Actions

Today the Supreme Court ruled in Comcast Corp. v. Behrens that an antitrust class action was improperly certified because Justice Scalia and four other Justices found the plaintiffs' damage theory inadequately supported by expert testimony. Others will no doubt have more to say on this, but I found the majority opinion transparently result-oriented, and disturbing in its cavalier implications. The issue on appeal, as the dissent points out, was reframed several times by the Court, and began as whether factual issues that go to the merits of a claim should be resolved in deciding whether to certify a class action under Rule 23. The majority opinion answers that question in the affirmative, and then goes on to reverse both lower courts' factual rulings on the damage proof issue as erroneous.

Worse, Justice Scalia assumes, without explanation, that if the plaintiffs' class-wide damages theory fails, then a class cannot be certified under Rule 23(b)(3). That part of the rule requires that common issues of law or fact predominate over individual issues. It does not require that damages be proved on a class-wide basis. In a given case, common issues of liability might predominate over individualized damages issues. The opinion does not say that Rule 23(b)(3) precludes class actions where individual damage determinations are necessary, and the dissent insists that such is not the holding, but the logic of the reversal is hard to square with any other reading.