Considering The Initial Impact Of The Recent Supreme Court Comcast Ruling On Class Certifications

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Initial cases applying the recent decision in Comcast v. Behrend, 569 U.S. _, 133 S.Ct. 1426 (March 27, 2013) (No. 11-864), show that courts are being asked to apply, and are undertaking, the "rigorous analysis” of the evidence on whether the class action plaintiffs can show "that damages are capable of measurement on a classwide basis" to satisfy the predominance class action requirement; a review of some recent filings shows that a number of challenges to prior class certification have been lodged since the decision last month

As the Federal Evidence Blog recently noted, on March 27, 2013 the Supreme Court held that trial courts must employ a “rigorous analysis” to determine whether class action plaintiffs have shown “that damages could be measured on a class wide basis." See Supreme Court Watch: Comcast v. Behrend: Clarifying The Preliminary Evidentiary Showing For Class Certification. Specifically, in an antitrust class certification action, the Court concluded in a 5 to 4 ruling that the class was improperly certified as the plaintiffs were unable to support their proposed damages model based on the proffered expert testimony. Comcast v. Behrend, 569 U.S. _, 133 S.Ct. 1426 (March 27, 2013) (No. 11-864) (citing Federal Judicial Center, Reference Manual on Scientific Evidence 432 (3d ed. 2011) (“The first step in a damages study is the translation of the legal theory of the harmful event into an analysis of the economic impact of that event.”)). Absent sufficient evidentiary support to establish classwide damages, certification should not be granted. Scrutiny of the damages proof will be a precondition to certification.

A review of recent filings and orders shows the initial impact of the Comcast decision. In sum, district courts are being asked to engage in more “rigorous analysis” to verify that a class action plaintiff can establish “that damages are capable of measurement on a classwide basis” to satisfy the predominance requirement for a class action.

Grant, Vacate, and Remand Orders

The initial impact was noted in two grant, vacate and remand orders. In both cases, the Supreme Court granted two petitions for a writ of certiorari, vacated the underlying judgment and remanded for further consideration in light of the Comcast decision. See RBS Citizens, N.A., et al. v. Ross, Synthia G., et al. (No. 12-165) (overtime class action under Illinois state law ); Whirlpool Corp. v. Glazer, et. al (No. 12-322) (consumer class action alleging defective washing machines).

In the Whirlpool Corp. case, the parties disagree whether the Sixth Circuit or the district court should apply the Comcast decision. The defendants moved "for an order remanding this case to the district court for reconsideration of its class certification order in light of the Comcast decision and the significant additions to the evidentiary record since the class was certified 2.5 years ago." Defendant-Appellant’s Motion to Remand To District Court for Reconsideration of Class Certification Order in Light of Comcast Corp. v. Behrend, at 1. According to the defendant, "The class-member-specific permutations involving fact of injury, multiple material changes in product design and user instructions, vast differences in product use by 200,000 Washer purchasers, and widely differing experiences with the Washers are even more 'endless' than the 'permutations' in subscriber harm that defeated predominance in Comcast." Motion to Remand, at 7. Further, the defendant contends that further "evidence has been discovered during the pendency of the appeal that is relevant to the analysis required under a new Supreme Court decision." Motion to Remand, at 8.

The class action plaintiffs oppose the motion to remand urging the trial set for October 21, 2013 to proceed to permit a jury to "finally answer the question at the heart of this litigation: whether approximately 160,000 Ohio residents who own a Whirlpool-brand front load washer (“FLW”) received the benefit of their bargain with Whirlpool." Plaintiffs-Appellees’ Brief In Opposition To Defendant-Appellant’s Motion To Remand, at 1. In sum, the plaintiffs contend that the Supreme Court's "summary order granting, vacating, and remanding a case for further consideration (a “0GVR order”) is not an indication that" a prior appellate ruling confirming the class certification "was infirm"; the Comcast decision "merely restates well-established class certification principles and has no other particular applicability to this case"; and "Whirlpool’s reargument of this issue fails —all class members have Article III standing because all have suffered a cognizable injury." Opposition to Motion to Remand, at 4-5.

Post-Comcast Rulings

A few courts have applied the Comcast case and concluded that the plaintiffs had not met their burden to support a class action:

  • Matthew Roach et al. v. T.L. Cannon Corp. d/b/a Applebee’s, Decision & Order, at 5-6 (No. 10-CV-0591 (TJM/DEP)) (NDNY March 29, 2013) (In Fair Labor Standards Act and New York State Labor Law class action against the operators of Applebee’s Neighborhood Grill and Bar Restaurants in New York, "Due to the Supreme Court’s recent holding in Comcast Corp. v. Behrend, [133 S.Ct. 1426], 2013 WL 1222646 (March 27, 2013), which was issued after Magistrate Judge Peebles issued his Report-Recommendation and Order, and for the reasons discussed below, the Court finds that Plaintiffs’ have failed to adequately demonstrate that the proposed class for the spread of hours claim, Sub-Class I-C, can be certified under Rule 23.") ("In the instant case, Plaintiffs have not offered a damages model susceptible of measurement across the entire class, arguing instead that this issue is separate from the question of liability. Plaintiffs contend that damages need not be considered for Rule 23 certification even if such damages might be highly individualized. See Pl. MOL in Support of Cert., pp. 18, 19, 22, 23; Reply MOL pp. 9-10. This position is in contravention of the
    holding of Behrend.") (as noted below, plaintiffs are seeking an interlocutory appeal of the denial of class certification)
  • Forrand v. Federal Express Corp., Order Denying Plaintiff’s Motion to Certify Class, at 6 (No. CV 08–1360 DSF) (CDCA April 25, 2013) ("After conducting 'a rigorous analysis' to determine whether class treatment is appropriate, in light of Comcast, the Court finds that Green has failed to demonstrate that class treatment under Rule 23(b)(3) is appropriate for her proposed unpaid on-the-clock class.") (footnote omitted)
  • In re High-Tech Emp. Antitrust Litig., Order Granting In Part, Denying In Part Motion For Class Certification, at 44-45 (No. 5:11-cv-02509) (Apr. 5, 2013) (in antitrust action alleging a conspiracy to suppress competition based on agreements not to solicit or hire high tech company employees, concluding under Comcast that the "method of calculating damages" was "consistent with their theory of liability") ("Having undertaken a rigorous analysis of Plaintiffs’ evidence, the Court finds that Plaintiffs have satisfied their burden for predominance on the first and third elements of Plaintiffs’ Section 1 antitrust claim—antitrust violation and damage. However, the Court has concerns about the capacity of Plaintiffs’ evidence and proposed methodology to prove impact to the All Employee Class or the Technical Class.... ")

At least one district court has rejected a request to revisit class certification following the Comcast opinion:

  • Anwar v. Fairfield Greenwich Limited Order (No. 09-cv-118 (VM)(FM)) (In securities class action involving investments in four hedge funds which included investments in Bernard Madoff's Ponzi scheme, court holds: “The Comcast ruling does not address class action settlements or the specific issues relevant to the Court's approval of the partial settlement. Therefore, the Morning Mist Derivative Plaintiffs have failed to identify any controlling law or factual matters put to the Court on the underlying motion that the Court demonstrably did not consider.”)

Decertification and Related Motions

A number of cases have involved decertification requests of prior class actions. Fed. R. Civ. P. 23(c)(1)(C) allows a court to revisit a certification ruling: “An order that grants or denies class certification may be altered or amended before final judgment.” Decertification can be revisited and sought following an adverse jury verdict. See, e.g., Wang v. Chinese Daily News, Inc., 709 F.3d 829 (9th Cir. 2013) (post-trial reversal of reverse the district court’s class certification). In other cases, the parties have requested further briefing following the Comcast ruling. For some examples of recent filings, consider:

  • Tavenner v. The Talon Group, A Division of First American Title Insurance Co., Defendant’s Motion To Decertify Classes (No. C09-1370 RSL) (WDWA) (in action alleging overcharges for real estate transaction fees, motion to decertify class which was certified on March 26, 2012 based on post-certification developments and Comcast, noting a file by file review will be required to determine individual, not classwide, damages)
  • Paul. v. Intel Corp., Defendant Intel Corporation's Notice of Supplemental Authority (No. MDL 05-1717-LPS) (D. Del) (in antitrust action, noticing Comcast decision and urging that "class certification is also impermissible here, in at least five respects); see also Memorandum Order (Sept. 28, 1012) (noting the court will need more time to determine whether to certify the class)
  • Jacob and Mars v. Duane Reade, Inc., Defendant's Memorandum of Law in Support of Motion for Reconsideration, at 5 (No. 11 CV 00160-JPO-JCF) (SDNY April 3, 2013) (urging the court to reconsider the grand of class certification based on the Comcast decision as "the individual monetary damages claims of the class members may not predominate over the claims for injunctive relief, and Plaintiffs have failed to prove that such damages claims can be established through class-wide proof")
  • B.W., et al. v. Powell, et al., Mid-Atlantic Youth Services Corp., PA Child Care LLC And Western PA Child Care LLC’s Supplemental Brief In Opposition To H.T. And Conway Plaintiffs’ Brief In Support Of Their Motion For Class Certification As To All Issues Of Defendants’ Liability TP Plaintiffs, at 10 (No. 09-cv-286) (MDPA filed April 2013) (supplemental briefing permitted "to address the effects of Comcast on class certification; juvenile offender class action based on alleged judicial kickback scheme to direct juvenile offenders from the public system to private detention centers, "the Juveniles’ Histories demonstrate on a case by case basis that each such individual Juvenile would have been detained, adjudicated and disposed of as he actually was which thereby prevents Class Plaintiffs from showing either actual injury or compensatory damages or that Ciavarell’s decision were erroneous on a class-wide basis")

At least one significant case involves a request for decertification following a large adverse jury verdict of $400 million:

  • In re Urethane Antitrust Litigation (No. 04-md-1616) (D. Kansas) (February 2013 jury verdict for class action plaintiffs in multi-district antitrust litigation alleging price-fixing conspiracies concerning urethane chemical products); The Dow Chemical Company’s Reply Brief Supporting Its Motion To Decertify The Class, at 1 ("Comcast offers powerful confirmation that the Class in this case should be decertified.") (filed April 5, 2013); Corrected Reply Memorandum In Support Of The Dow Chemical Company’s Motions For Judgment On The Verdict And As A Matter Of Law, Or For A New Trial, at 1 (filed April 5, 2013) ("Comcast offers powerful confirmation that the Class in this case should be decertified."); Class Plaintiffs’ Sur-Reply Memorandum Addressing Comcast Corp. v. Behrend And Opposing The Dow Chemical Company’s Motions For Judgment As A Matter Of Law, A New Trial, And Decertification Of The Class, at 1 (filed April 19, 2013) ("Comcast involved an unusual procedural posture and a complex theory of monopolization, based on conduct for which there was no intuitive or recognized method for proving class-wide injury and damages. This case, by contrast, is a straightforward price-fixing conspiracy with an obvious theory of antitrust injury—the conspiracy injured the Class by manipulating prices directly—and well-established methods for proving damages.")

Interlocutory Appeals

After the district court has applied the Comcast decision, some parties have sought appellate review of the district court ruling:

Summary

While the full impact of the Comcast case remains to be seen, the filings in the first few weeks since the decision show that courts are being asked to apply more "rigorous analysis" on the threshold determination whether there is sufficient proof to support classwide damages. In the meantime, for the briefs filed in the case, transcript of the oral argument, and more information, see Supreme Court Watch: Comcast v. Behrend - Examining Expert Evidence In The Class Action Certification Process.

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