Comcast Corp v Behrend and Chaos on the Ground

Comcast Corp v Behrend stands as merely one of the latest battlegrounds on which critical class action issues have been fought. The case is unique, however, insofar as it is the most prominent battleground on which critical class-certification issues will continue to be fought, owing to its ambiguity. To wit, interpreting precisely what Comcast stands for has proven a vexatious task—stumping nearly two hundred lower courts thus far. The class action mechanism plays a vital role in the American adversarial legal system—it gets litigants into the courtroom. Against this backdrop, Federal Rule of Civil Procedure 23 casts a shadow—it limits the use of the class action mechanism to ensure that judicial economies are preserved. Rule 23(b)(3)— especially its predominance requirement—is a crucial component of this limiting framework. Proposed “damages classes” filed under Rule 23(b)(3) must demonstrate that questions common to all members of a proffered class will “predominate” over individual questions. As a general rule, this inquiry has focused on issues of liability, while damages have been merely a factor to consider. Comcast, however, has cast the validity of this general rule into doubt. In denying certification of the proffered Rule 23(b)(3) class, the Supreme Court, per Justice Antonin Scalia, appeared to suggest that general class action rules governed the Court’s holding and that individualized damages presented by the class members doomed certification. Anticipating the potential sea change that this opinion could precipitate in class action jurisprudence, Justices Ruth Bader Ginsburg and Stephen Breyer jointly filed a dissent suggesting that the status quo regarding individualized damages remains unchanged. The result of the majority’s potentially novel reimagining of the general rule, and the dissent’s mitigation of that opinion, has been nothing short of interpretive chaos. Circuit splits are building on circuit splits, and district courts are even disregarding guidance set forth by their respective courts of appeals. The question that hundreds of judges, practitioners, and clerks face—What does Comcast stand for?—remains decidedly unanswered.

This Comment begins with a brief background on class actions generally, and the role of individualized damages in the Rule 23(b)(3) predominance inquiry in particular. It then addresses the post-Comcast chaos with several goals in mind. First, it aims to sort lower court interpretations of Comcast into one of four interpretive “bins.” Second, it seeks to critique each of these interpretive moves as descriptively and normatively flawed, ultimately concluding that each bin should be cast into the water. Finally, it suggests that an antitrust-centric approach to Comcast provides the most accurate and desirable reading of the opinion. In so doing, this Comment introduces a new treatment of antitrust class actions more broadly that simultaneously advances the goals of both class action and antitrust law, while preserving the general individualized-damages rule in all other contexts. Specifically, this Comment contends that, in the antitrust context, only a showing of common antitrust injury across the class satisfies the Rule 23(b)(3) predominance inquiry.