The U.S. Supreme Court has heard oral argument in a case that considers what evidence is needed to certify a Rule 23 class action.
In Comcast Corp. v. Behrend, the plaintiffs claimed Comcast committed antitrust violations when it raised the price of their cable service for almost 2 million cable subscribers. The plaintiffs sued Comcast. Relying on an expert witness report, the trial court judge found that the questions of law or fact that affected the two million subscribers predominated over any questions that only affected individual customers, so a class of the two million subscribers was certified. Comcast argued the certification was in error because the expert witness report was faulty. In accepting the case for review, the Supreme Court rephrased the Comcast’s issue to whether a federal trial court may certify a class action without resolving whether the plaintiff has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.
During oral argument, the following points were made:
1. For a trial court judge to certify a class, the judge must assess whether expert evidence is sufficiently reliable. If the high court determines that the expert witness report is faulty, this would be in Comcast’s favor.
2. In determining whether there are common issues of law or fact to a potential class and that these issues predominate over any issues that affect individual customers, both damages and liability issues must be considered. Thus if damages for the class cannot be established, certification would be defeated.
A favorable ruling on the second point by the U.S. Supreme Court would be important because it could make class certification in wage and hour cases more difficult since claimed damages in these types of cases are highly individualized.
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