February 25, 2020 Articles

What Is Comcast’s Lasting Impact in Antitrust Class Actions?

The presence of uninjured class members matters most.

By Daniel J. Boland and Kaitlin L. O’Donnell

In its 2013 decision Comcast v. Behrend, the U.S. Supreme Court appeared to drastically change Rule 23(b)(3)’s predominance requirement when it held in an antitrust case that the class plaintiffs’ damages model fell “far short of establishing that damages are capable of measurement on a classwide basis,” thus preventing class certification. 569 U.S. 27, 34 (2013). Before Comcast, courts factored the need for individualized damages inquiries into their predominance analyses, but that alone did not automatically preclude class certification. See id. at 42 (Ginsburg, J., dissenting) (“Recognition that individual damages calculations do not preclude class certification under Rule 23(b)(3) is well-nigh universal.”); see also Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 253 (2d Cir. 2011) (“Common issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues.” (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 139 (2d Cir. 2001))). Many pundits predicted that Comcast’s holding would significantly increase class plaintiffs’ predominance burden, making it much more difficult to certify a class.

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