On November 13, the Ninth Circuit affirmed the Northern District of California’s denial of class certification in an action against Apple, Inc., holding that the plaintiffs’ expert’s wait-and-see approach to calculating the class’s alleged harm did not pass muster under the Supreme Court’s decision in Comcast Corp. v. Behrend, 569 U.S. 27 (2013).

• Plaintiffs alleged that Apple violated the Sherman Act “by conspiring with AT&T Mobility LLC to monopolize the aftermarket for iPhone wireless service.”
• With their motion for class certification, plaintiffs submitted a declaration from an economist, who stated that he “did not expect to encounter any insurmountable difficulty” in developing a workable damages model under two alleged theories of impact.
• The Northern District of California denied class certification, finding that Plaintiffs had failed to provide a sufficient method for determining classwide damages. Plaintiffs appealed the district court’s decision, arguing that the court did not conduct the required “rigorous analysis” when making this finding.
• The Ninth Circuit affirmed, holding “[t]he plaintiffs here have done even less than the Comcast plaintiffs: Instead of providing an imperfect model, they have provided only a promise of a model to come.”
• The decision serves as a reminder that a party must “satisfy through evidentiary proof” the requirements of Rule 23(b) before a class can be certified, and that a plaintiff cannot sidestep potential Comcast problems by waiting until trial to present a viable damages model.

The case is Ward et al. v. Apple, Inc. Read the decision here.