In order to obtain class certification under Federal Rule 23(b)(3), the plaintiffs must be able to show that their damages arose from actions attributable to the defendants who create legal liability. Plaintiffs must show at the class certification stage that they can prove, through common evidence, that all proposed class members were injured by the defendant’s alleged wrongful conduct (or if there are a few who were not, it will be possible to easily identify and exclude those individuals).
In the Comcast antitrust case, the federal court had initially granted certification in Comcast to decide whether the Daubert standard applied to class certification. The federal court ended up decertifying the antitrust class based on two flaws in the damages model offered by the plaintiffs’ expert. First, the court found the model failed to show that damages could be determined on a common basis across the class. Second, the court found that the damages model did not track the plaintiffs’ theory of liability because it included three theories of antitrust injuries the plaintiffs were no longer pursuing and did not categorize the alleged harm from each.
The Comcast case, which was handed down in 2013, is no longer an easy shield for defendants in class certification matters. Comcast does not stand for just antitrust cases. The case decision however, does require plaintiffs to produce a workable damages model that excludes plaintiffs who were not injured.
In one case that Kreisman Law offices handled to completion, our client was injured whereas hundreds of others had non-injury claims against the same group of defendants. That group of non-injured parties were certified as a class and preceded separately.
In another case, the U.S. Court of Appeals for the First district held in In re Nexium Antitrust Litigation, 2015 WL 265548 (1st Cir., Jan. 21, 2015), that so long as “it will be possible to establish a mechanism for distinguishing the injured from the uninjured class members,” particularly where a proposed class includes a “de minimis” number of uninjured parties, a class may still be certified pursuant to Federal Rule of Civil Procedure 23(b)(3).
Further, the Comcast decision does not mandate that certification pursuant to Rule 23(b)(3) requires a finding that damages must be measured on a class-wide basis, as set out in the case of Roach v. T.L. Cannon Corp., No. 13-3070-cv (2d Cir., Feb. 10, 2015).
Going forward, the Comcast decision does require the plaintiffs to account for material differences between and among class members. When plaintiffs are in the process of bringing their class certification action before the court, they must be aware of the Comcast decision and the cases that followed it.
Comcast v. Behrend, 133 S. Ct. 1426 (2013).
Kreisman Law Offices has been handling mass tort cases, pharmaceutical defect cases, product liability lawsuits and catastrophic injury cases for individuals and families for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Oak Park, River Forest, Round Lake, St. Charles, Western Springs, Des Plaines, Evergreen Park, Fox River Grove, Geneva, Hinsdale, Kenilworth, Lincolnshire, Lisle, Streamwood, Prospect Heights and Westchester, Ill.
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