In this series, we have previously written about the Supreme Court’s 2013 decision in Comcast Corp. v. Behrend, in which the Court held that plaintiffs seeking class certification must show that the damages sought are the result of the class-wide injury alleged in the suit. In Comcast, plaintiffs submitted an expert report on damages that assumed the validity of four separate theories of antitrust liability, but only one of those theories was ultimately accepted by the district court. Because plaintiffs’ damages model did not specify the damages attributable solely to the surviving liability theory, the Supreme Court ruled that plaintiffs “cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3),” and the Court held that class certification was therefore improper.
Some commentators and courts have read the Comcast decision very broadly to mean that class certification in Rule 23(b)(3) cases is only appropriate if damages can be calculated on a class-wide basis. Other authorities have read Comcast more narrowly as standing for the common sense proposition that if a plaintiff submits a class-wide damages model in a purported class action, that model must track the same theory of liability that provided the basis for class certification. The latter interpretation could, of course, leave open the possibility of certifying a liability-only class and permitting individualized damages calculations to be made outside the class action mechanism where appropriate.
And both the 6th and 7th Circuits proceeded to issue new opinions that essentially reaffirmed their original holdings and approved class certification. The 7th Circuit took Comcast to mean that “a damages suit cannot be certified to proceed as a class action unless the damages sought are the result of the class-wide injury that the suit alleges” (emphasis in original) — and found that a class-wide injury had been alleged, and that variations in damages among class members could be handled with individual damages hearings after a determination of liability. The 6th Circuit took Comcast to “reject certification of a liability and damages class because plaintiffs failed to establish that damages could be measured on a classwide basis,” but noted that the district court in Whirlpool had certified a class only as to liability, while reserving damages issues for individual determination — and opined that where liability and damages are bifurcated, Comcast “has limited application.”