This holding initially excited defense attorneys not only because they thought it opened up another avenue of challenging certification but also because it underscored that courts were supposed to delve into the merits at the class certification stage. On the latter point, the Court opined that the "rigorous analysis" required to ensure that the prerequisites of Rule 23(a) have been satisfied "will frequently entail overlap with the merits of the plaintiff's underlying claim. . . . That is so because the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action." Id. at 1432 (internal quotation marks omitted).
While the Comcast decision undoubtedly excited most defense attorneys, some maintained a measured reaction and were dubious of its potential import. Some feared that courts might apply this rationale only in an antitrust situation, which was at issue in Comcast. Others feared that courts might ignore the opinion and espouse the dissent's opinion—that is, that the decision "br[oke] no new ground on the standard of certifying a class action." Id. at 1436 (Ginsburg and Breyer, JJ., dissenting). Examining the potential future impact of Comcast, one legal commentator opined:
Defendants w[ould] no doubt use the decision to argue for even greater rigor in the analysis of plaintiffs' damages models, or even that the decision precludes certification where individual damages calculations are necessary. Plaintiffs, on their part, will have little difficulty distinguishing the case on its facts, and will point to the majority's language that the decision involves a straightforward application of well-settled principles under Rule 23.
Ellen Meriwether, "Comcast Corp. v. Behrend: Game Changing or Business As Usual?," Antitrust, Vol. 27, No. 3 (Summer 2013), at 57, 61.
Post-Comcast Decisions: The Good, the Bad, and the In-Between
So was Comcast a boon for defendants? Unfortunately, we are not sure, and we may be going back to the Supreme Court to find out.
Since Comcast, there has been a split among courts regarding what the decisionactually means. This split was astutely examined by the Southern District of New York in August in Jacob v. Duane Reade, 2013 WL 4028147 (S.D.N.Y. Aug. 8, 2013). In Jacob, before determining whether or not its class of assistant drug store managers who sought unpaid wages should remain certified, the court engaged in a thorough analysis of courts' reactions since Comcast.
Summarizing the struggles courts now face when confronted with a post-Comcast class, the Jacob court cogently commented that "district and circuit courts alike have grappled with the scope, effect, and application of Comcast's holding, and in particular, its interaction with non-antitrust class actions." According to the Honorable J. Paul Oetken, this struggle has prompted Comcast to be applied in three different ways: (1) Some courts distinguish Comcast, finding a common damage formula at the class certification stage; (2) some courts follow Comcast's leadand reject class certification because no common damage formula exists; and (3) some courts take a middle road and, employing Rule 23(c)(4), opt to bifurcate the certification decision. Jacob,2013 WL 4028147, at *3.
This third approach is particularly interesting and appears to be gaining traction in recent months. Using Rule 23(c)(4), which states that "an action may be brought or maintained as a class action with respect to particular issues," some courts, like the Jacob court, have decided that its class would "remain certified as to liability, but . . . decertified for damages purposes, in light of the need for individualized proof necessary to determine monies potentially owed." Id. at *18. Thus, if the Jacob plaintiffs were able to prevail on the merits, they would have to proceed individually on their damages claims. Id. at *15.
A Petition for Clarification
In light of the noted split and the emerging "middle ground" approach, unhappy defense attorneys for Whirlpool have asked the Supreme Court to clarify what it really meant in Comcast.On October 7, 2013, counsel for Whirlpool petitioned the Supreme Court for certiorari in Whirlpool Corp. v. Glazer, No. 13-431, 2013 WL 5532730 (Oct. 7, 2013).
The first time Whirlpool came before the Sixth Circuit, the appellate court affirmed certification of a class of 200,000 Ohio residents whose washing machines were allegedly defective. After the adverse ruling, Whirlpool petitioned the Supreme Court for certiorari. In a terse order, the Supreme Court "GVRed" (granted certiorari, vacated, and remanded) the case back to the Sixth Circuit in light of its holding in Comcast.
On remand, the Sixth Circuit affirmed certification, determining that the case "[wa]s different from Comcast," because "the district court certified only a liability class and reserved all issues concerning damages for individual determination; [whereas] in Comcast Corp. the court certified a class to determine both liability and damages." 722 F.3d 838, 860 (6th Cir. 2013). Rejecting Whirlpool's argument that the requirement that a court make individual damage determinations violated Comcast, the Sixth Circuit held that "[t]o the extent that Comcast Corp. reaffirms the settled rule that liability issues relating to injury must be susceptible of proof on a classwide basis to meet the predominance standard, our opinion thoroughly demonstrates why that requirement is met in this case." Id. Like the Jacob court, the Sixth Circuit in Whirlpool explained that "[o]nce the district court resolves under Ohio law the common liability questions that are likely to generate common answers in this case, the court will either enter judgment for Whirlpool or proceed to the question of plaintiffs' damages." Id. at 861.
In its recent petition for certiorari, Whirlpool asks the Supreme Court to decide "[w]hether the Rule 23(b)(3) predominance requirement can be satisfied when the court has not found that the aggregate of common liability issues predominates over the aggregate of individualized issues at trial and when neither injury nor damages can be proven on a classwide basis." In the petition, Whirlpool further argues that "Comcast establishes a fortiori that class certification is improper" in its case and that "[t]he Sixth Circuit's admission that 'all issues concerning damages' were reserved for 'individual determination' means this case fails the Comcast test for certification."
Thus, it appears that defense attorneys might have prematurely celebrated Comcast's import for class actions. Those who believed it was the next Dukes or Daubert may soon come to realize that they were wrong. Although the decision seemed to have teeth, it may be that Comcast actually broke no new ground and was merely a hollow "victory." If that is the case, defense attorneys may be faced with numerous situations where a class is certified as to liability but is broken into individual trials as to damages.
Keywords: litigation, products liability, Comcast v. Behrend, damages, Federal Rule of Civil Procedure 23, class certification, predominance, Whirlpool v. Glazer