The Ebb and Flow of Comcast v. Behrend

The United States Supreme Court’s 5-4 decision in Comcast v. Behrend, 133U.S. 1426 (2013) has been the subject of much debate and analysis. The defense bar has heralded the opinion as further tightening the reins on class certification by extending a district court’s "rigorous analysis" to damages calculations and expert testimony. The plaintiffs’ bar, on the other hand, minimizes the case by narrowing Comcast to its facts and by characterizing it as an extension of Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)and other Supreme Court precedent.

Comcast and Its Immediate Aftermath

The issue in Comcast was whether the trial court properly found that expert evidence regarding common damages satisfied the "predominance" requirement of Rule 23(b)(3), Fed. R. Civ. P., which requires that common questions predominate over individual ones. The majority concluded that the expert’s damages modeling was insufficient to show predominance because it was not isolated to the single theory of liability the lower court allowed to go forward. The Supreme Court held that, while calculation of the individual damages, at the class certification stage, "need not be exact," a damages model must be consistent with the theory of liability. Comcast, 133 U.S. at 1433.

Shortly thereafter, the Court vacated and remanded, in light of Comcast, two cases involving allegedly defective washing machines: Whirlpool Corp. v. Glazer, 2013 U.S. LEXIS 2695 (April 1, 2013), and Sears, Roebuck & Co. v. Butler, 2013 U.S. LEXIS 4213 (June 3, 2013).However, on remand, the Sixth and Seventh Circuits both affirmed their original certifications without remanding the cases to the respective district courts. See Butler v. Sears, Roebuck & Co., 727 F.3d 796 (7th Cir. Aug. 22, 2013) (Posner, J.); Glazer v. Whirlpool Corp., 722 F.3d 838 (6thCir. July 18, 2013). Further, both circuits endorsed either issue certification under Rule 23(c)(4) or, similarly, certification of liability only, leaving individual damages calculations to subsequent proceedings.

Scant Interpretation from Courts in the Eleventh Circuit

Other circuits and their district courts have weighed in on the significance of Comcast, especially the Second and Ninth Circuits. The Eleventh Circuit, however, has not yet issued any opinion citing Comcast, and only three district courts in the Eleventh Circuit have cited Comcast.

Two days after Comcast was rendered, the United States Court for the Middle District of Alabama granted certification of a class seeking to recoup money lost playing electronic bingo machines. Williams v. Macon County Greyhound Park, Inc., 2013 U.S. Dist. LEXIS 45355 (M.D. Ala. March 29, 2013)(bringing class claims under Section 8-1-150(a) of the Alabama Code, which voids "all contracts founded in whole or in part on a gambling consideration"). The Williams court cited Comcast in passing but did not engage in any substantive analysis of the now widely discussed opinion.

Judge Robert N. Scola of the Southern District of Florida denied the defendants’ motion for reconsideration of the court’s order certifying a case, rejecting the argument that Comcast broke any new ground. Manno v. Healthcare Revenue Recovery Group, LLC, 289 F.R.D. 674, 694 (S.D. Fla. May 30, 2013) (noting that Comcast "simply restates rules from [Wal-Mart v. Dukes] and other prior decisions. The Comcast decision therefore does not represent a change in law that would warrant reconsideration.").

Finally, in Bryant v. Southland Tube, the United States District Court for the Northern District of Alabama denied certification of a class of African-American employees alleging discrimination. 2013 U.S. Dist. LEXIS141607 (N.D. Ala. Sept. 30, 2013). The opinion quotes lengthy passages from Comcast that emphasize a court’s "rigorous analysis," and the court relies on Wal-Mart v. Dukes (also a discrimination case) in denying certification. See id. at *34-*46.

Conclusion

Paired with Wal-Mart v. Dukes, Comcast does tighten the reins when it comes to certifying certain Rule 23(b)(3) classes. However, at least in some circuits, issue certification under Rule 23(c)(4) could present a viable alternative to putative class plaintiffs. The Eleventh Circuit has not definitively weighed in on issue certification. Thus, given the Eleventh Circuit’s silence regarding issue certification and Comcast, litigants in the Eleventh Circuit will continue to characterize Comcast to their own advantage—at least for now. For more information, please contact Ashley Bruce Trehan.