Comcast v. Behrend: Supreme Court Underscores Dukes “Rigor” Requirement For Class Certification, But Declines to Impose Daubert

The U.S. Supreme Court has issued a 5-4 decision applying the Wal-Mart v. Dukes mandate, which compels federal district court judges to undertake a “rigorous” analysis of expert witness testimony when ruling on class certification motions, in the antitrust context. See Comcast v. Behrend, 569 U.S. ___ (2013) (available here).

Specifically, the Court has held that where an expert offers an antitrust damages model that incorporates three rejected theories of antitrust liability along with the lone liability theory that would have been adjudicated at trial, class certification must be denied. Slip op. at 2 (“A [damages] model that does not attempt to measure only those damages attributable to that theory cannot establish that damages are susceptible of measurement across the entire class for Rule 23(b)(3) purposes.”). Thus, the much-anticipated Comcast decision proved to be a relatively narrow application of already-established Dukes jurisprudence to the admissibility of expert testimony. As such, “the opinion breaks no new ground on the standard for certifying a class action under Federal Rule of Civil Procedure 23(b)(3).” Slip op. dissent at 3 (Ginsburg and Breyer, JJ., dissenting).

Even as a decision focused on the standard for admitting expert testimony at the class certification stage, Comcast falls well short of breaking new ground, as the Daubert criteria governing expert testimony were not applied to Rule 23 class certification motions, as had been widely speculated. Rather, the expert’s damages model was found deficient because, the plaintiff and expert conceded, “the model did not isolate damages resulting from any one theory of antitrust impact.” Slip op. at 4. Indeed, it is likely that even a pre-Dukes analysis would have found this particular expert testimony inadequate, as it consisted of regression analysis that, it was undisputed, lacked the sine qua non of regression analysis: isolating the influence of a particular independent variable.

As in Dukes, the proposed class in Comcast was unusually sprawling, even by class action standards, entailing “four theories of liability and 2 million subscribers located in 16 counties.” Slip op. at 10. The case arose in the often arcane area of antitrust law, casting further doubt on the decision’s ability to radically remake class actions. While the defense bar declared victory, it was in conspicuously muted terms, as with McDermott Will & Emery partner David L. Hanselman, Jr. who, quoted in Law360, observed merely that “[t]he court held that individualized issues of damages may preclude class certification; it did not hold that individualized issues of damages will always or necessarily preclude class certification.”