In a very pro-employer/business opinion crafted by Justice Scalia, the U.S. Supreme Court rejected class certification for 2 million Comcast subscribers in an antitrust class action in Comcast Corp. v. Behrend, 516 U.S. ___ (2013).  To certify a class action, a plaintiff must make two showings. First, the plaintiff must establish the numerosity, commonality, typicality, and adequacy-of-representation requirements of Federal Rule of Civil Procedure Rule 23(a). Second, the plaintiff must establish at least one of the additional class-action requirements of Rule 23(b).  In Comcast, the Supreme Court reviewed whether an antitrust class was properly certified under Rule 23(b)(3). Rule 23(b)(3) permits certification only if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members.”

Comcast is an extremely important and noteworthy decision because – for the first time – the Court unequivocally concluded that the “rigorous analysis” standard applied to the four class-action requirements in Rule 23(a) must also be applied to Rule 23(b)(3).  Relying heavily on its seminal Wal-Mart Stores, Inc. v Dukes class action decision, the Supreme Court determined that its precedents require a demanding and rigorous analysis of the evidentiary proof to determine whether the perquisites of Rule 23(b)(3) are met.  Applying this rigorous analysis, the Supreme court concluded that the lower courts had run afoul of these precedents because “under the proper standard for evaluating certification, respondents’ [damages] model falls far short of establishing that damages are capable of measurement on a classwide basis.”  Thus, the failure of the class-representative plaintiffs to offer a damages model that was “susceptible of measurement across the entire class for purposes of Rule 23(b)(3)” precluded class certification.

The principles in Comcast, while an antitrust case, will be undoubtedly applied to other Rule 23 class actions outside of the antitrust context.  What remains to be seen is whether they will be applied to FLSA collective actions, which are not governed by Rule 23, but instead focus on whether employees are similarly situated and affected by a single decision, policy or plan. In fact, the Supreme Court already appears to have provided some insight into the extension of these principles to wage-and-hour claims.  Just last week, mere days after its Comcast ruling, the Supreme Court vacated and remanded two class action decisions “for further consideration in light of Comcast Corp. v. Behrend.”  One of those decisions is RBS Citizens, N.A. v. Ross (No. 12-165), which the Supreme Court remanded to the Seventh Circuit.  The Seventh Circuit had previously affirmed the certification of a state law wage-and-hour class action involving over 1,100 former and current RBS employees claiming they were improperly misclassified as exempt from overtime and/or not paid for the hours they worked.  The Supreme Court’s remand of the Ross decision certainly suggests that Comcast has at least some effect on the Seventh Circuit’s class certification decision in that wage-and-hour case.  We will provide a blog update when the Seventh Circuit issues its ruling on the effect of Comcast on the Ross class.

At a minimum, the Comcast “vigorous analysis” requirement represents another arrow in the quiver for employers faced with the prospects of an FLSA collective action.  This will be especially true in those FLSA collective actions involving highly individualized factual determinations, more than one geographic location and/or more than one offending supervisor, i.e., where overtime damages are not sufficiently capable of being measured on a classwide basis.