Disputes over common class-wide evidence of both the existence and amount of damages are at the heart of most class action cases, regardless of the context. On June 25, 2012, the United States Supreme Court granted certiorari in an antitrust class action that may address those very issues.  In Comcast Corp. v. Behrend, No. 11-864, the plaintiffs claim that Comcast contracted with competing cable companies to cluster cable systems giving it an effective monopoly on the cable market and allowing it to raise cable prices for Philadelphia cable customers. The Third Circuit affirmed the district court’s ruling that the damages in the case were susceptible to class-wide proof at trial.  The Supreme Court will address the following issue:  Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

The following are just a few class action issues that may be impacted by this case:

  • Is there a different standard for determining the existence of class-wide damages versus the amount of those damages, and will either or both be a basis to defeat certification?
  • What amount and what kind of evidence is a plaintiff required to prove at a class certification hearing and how will a defendant be allowed to rebut that proof? 
  • Is expert witness testimony necessary to prove common damages and what weight should a trial court put on such testimony?
  • Will methodologies for determining common class-wide damages be scrutinized more than other evidence in support or against damage claims?
  • Will a trial court have to make an admissibility determination about proposed evidence in a class certification context and if so, what is the standard for making such a ruling?
  • Are there inherent conflicts in the obligation to perform a rigorous analysis at the class certification stage and the Seventh Amendment’s warning against preempting the role of the jury?

The Supreme Court’s decision is likely to have a far-reaching impact on all class actions as the Court examines not only evidentiary issues but also the broader question of to what extent the merits of a case need to be considered at the class certification stage.