The full implications of the Supreme Court’s recent decision in Comcast v. Behrend1 are not immediately apparent. The court clearly held that whether damages could be decided on a class-wide basis was relevant to the predominance inquiry under Rule 23(b)(3). And the court reiterated the message from Wal-Mart Stores v. Dukes2 that plaintiffs must demonstrate at class certification that causation can be established for all class members in a class trial. But the Supreme Court’s decision to GVR (grant/vacate/remand) RBS Citizens v. Ross in light of its Comcast decision3 sheds some interesting light on the court’s thinking and suggests that Comcast may have a lot more to tell us than appeared at first blush.
‘Comcast’ and ‘RBS’
First, a brief recap of Comcast and RBS. Comcast involved an antitrust challenge to various practices employed by Comcast in building out its cable network. The court granted review to decide "[w]hether 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."4
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