Comcast v. Behrend: U.S. Supreme Court Grants Cert. to Address Application of Daubert to Certification Proceedings

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The U.S. Supreme Court has decided to review a Third Circuit decision bearing on a key element of class certification jurisprudence. See Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011), cert. granted, 80 U.S.L.W. 3442 (U.S. June 25, 2012) (No. 11-864) (available here).

In its petition, Comcast asked the Court to address “whether a district court may certify a class action without resolving ‘merits arguments’ that bear on Rule 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).” Petition for Writ of Certiorari at i, Comcast Corp. v. Behrend, __ S. Ct. __ (2012) (No. 11-864), 2012 WL 105558 (available here). This seemed a ripe issue for the Court to take up, given the tension between the traditional doctrinal separation between class certification and “merits” analysis and recent decisions mandating “rigorous analysis” that seemingly implicates a merits-based inquiry. Compare, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (“In determining whether to certify a class action, ‘the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.’”) with Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982) (district courts must engage in “rigorous analysis” to ensure that the “party seeking class certification [can] affirmatively demonstrate his compliance” with Rule 23)).

However, in agreeing to review the case, the Supreme Court took the unusual step of reframing the core issue, narrowing the scope of its review to: “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.” (emphasis added). This is likely a signal that the Court plans to resolve the debate sparked by its dicta in Dukes, where, in response to the conclusion of California Northern District Court Judge Jenkens that a full Daubert analysis is not appropriate at the certification stage, the Court stated: “We doubt that is so.” 131 S. Ct. 2541, 2554.

In an unusual procedural turn and exemplar of the virtue of persistence, this appeal was “relisted” seven times. Thus, on six prior occasions, the certiorari petition was scheduled for a vote, and each time, the vote was deferred and listed for a subsequent conference. The repeated delays likely resulted from proponents’ difficulty in securing the four votes necessary to grant a certiorari petition, which in turn could suggest that those proponents will have a similarly difficult time finding the five-vote majority necessary to promulgate their favored doctrine as to the proper expert analysis to be undertaken by courts attendant to Rule 23 class certification analysis.