[author: Joshua Roberts]

The Supreme Court heard oral argument this month in Comcast Corp. et al. v. Behrend et al., No. 11-864, where the parties fought over whether the lower courts took a close enough look at plaintiffs’ model for damages.  The issues underlying oral arguments concerned the amount that class action plaintiffs are required to prove during the early stages of litigation.  Obviously, the greater the amount, the greater the burden for would be class action plaintiffs.  Specifically, this case turns on whether a class can be certified without a district court considering whether plaintiffs have provided admissible evidence showing damages could be awarded on a class-wide basis.  From the Justices’ comments, it appears that the Court will use this case to formulate a rule governing the amount of  inquiry a judge will need to do on expert damages testimony before certifying a class.  We will keep you posted as this case progresses.