December 05, 2013 Articles

Comcast v. Behrend: Was It Really a Boon for Defense Attorneys?

By Jenny A. Mendelsohn

Products liability defense attorneys are facing a flurry of consumer class actions. Defending such actions and defeating certification can be exceedingly difficult at times, especially in more liberal jurisdictions like California. As of March 27, 2013, class action defense attorneys thought they had a new weapon in their arsenal—Comcast v. Behrend.

Comcast v. Behrend
In Comcast v. Behrend, 133 S. Ct. 1426 (2013), the Supreme Court held that where a plaintiff cannot establish that a damages model can be applied across an entire class, that class could not be certified because it failed to meet the Rule 23(b)(3) predominance requirement. The Court in Comcast specifically reasoned that "[q]uestions of individual damage will inevitably overwhelm questions common to the class," absent a common damages model, thereby defeating certification. Id. at 1433.

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