• In Key Decision, Supreme Court Applies "Rigorous Analysis" to FRCP 23(b)(3) Class Determination in Reversing Class Certification Based on Lack of Showing That Damages Can Be Measured On Classwide Basis
  • April 2, 2013 | Authors: Jordan D. Grotzinger; Jeff E. Scott
  • Law Firms: Greenberg Traurig, LLP - Los Angeles Office ; Greenberg Traurig, LLP - San Francisco Office
  • In 2011, the Supreme Court explained in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) that, “[w]hat matters to class certification . . . is not the raising of common ‘questions’ -- even in droves -- but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” The Court expanded that principle in its March 27, 2013 decision in Comcast Corp. v. Behrend, reversing class certification where the plaintiffs failed to prove that their alleged damages could be measured on a classwide basis. In Dukes, the Court addressed whether the plaintiffs’ theory of liability was susceptible to common answers as required by Federal Rule of Civil Procedure 23(a)(2), and rejected the plaintiffs’ argument that requiring common proof at the class certification stage depends too heavily on a premature determination of the merits. In Comcast the Court applied this “rigorous analysis” to the issue of whether the plaintiffs’ damages theory was susceptible to measurement on a classwide basis and held that it was not. This decision is a significant victory for class action defendants - it confirms that courts may, where necessary, consider the merits at the certification stage not only in assessing whether liability can be established on a classwide basis, but also in considering whether plaintiffs have offered a competent basis to establish classwide damages.