No Damages or Injury, No Predominance and No Class
By DENNIS ELLIS, KATHERINE F. MURRAY & ADAM M. REICH
The U.S. Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) is significant. The court confirmed that Federal Rule of Civil Procedure 23 requires proof that damages and injury are amenable to class treatment before a class can be certified. Id. at 1432.
In an effort to downplay the importance of Comcast, the plaintiffs’ bar has been clinging to Justice Ruth Bader Ginsburg’s commentary in dissent, that Comcast “breaks no new ground on the standard for certifying a class action under [Rule] 23(b)(3).” Id. at 1436 (Ginsburg, J. dissenting). However, this is becoming harder for plaintiffs to do each day, as more and more district courts are relying on Comcast to deny class certification.
*This article originally appeared in Law360.