Comcast v. Behrend is the latest opinion issued by the U.S. Supreme Court interpreting and applying the procedural rules governing class actions set out in Federal Rule Civil Procedure 23. In order to obtain certification of a class under Rule 23, a plaintiff has to demonstrate that all of the factors enumerated in Rule 23(a) are satisfied and also meet at least one of the criterion identified in Rule 23(b) (e.g., that common issues of fact and law predominate). In Behrend, the Court expressly stated that the ‘‘rigorous analysis’’ that must be undertaken by a trial court to determine whether plaintiffs have met the Rule 23(a) factors also applies to the Rule 23(b) prerequisites. Further, the Court held the predominance criterion set forth in Rule 23(b) includes the question of whether damages are capable of measurement on a classwide basis. If they are not, the ‘‘adventuresome innovation’’ of Rule 23(b)(3) is not available to plaintiffs, and a class may not be certified on that basis.
This article examines the Supreme Court’s decision in Behrend, it's subsequent remand of the Sixth Circuit's decision in Whirlpool v. Glazer, and implications for other similarly reasoned cases where the evidence suggests that few, if any, proposed class members actually have experienced the alleged injury.
Originally published in Mealey’s Litigation Report: Class Actions on April 19, 2013.
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