In consumer class actions, the damages measure tends to remain undisclosed or ill-defined when plaintiffs move for class certification. Revealing as little as possible about damages allows plaintiffs to more flexibly adapt to changes in theory or proof as the action unfolds. It also deprives defendants of an early opportunity to challenge any particular damages measure. By focusing on liability issues over damages issues when assessing Federal Rule of Civil Procedure 23(b)(3)’s predominance requirement, federal courts have acquiesced in—if not encouraged—this hide-thedamages- ball strategy.

Lower-court reaction to last year’s U.S. Supreme Court opinion in Comcast Corp. v. Behrend1 is increasingly rendering this strategy untenable. Although an antitrust case, Comcast offers a fundamental Rule 23(b)(3) insight: Individual damages can overwhelm common issues, defeating predominance. As a result, a district court’s rigorous analysis must invariably assess if individual damages issues predominate, or not. Citing Comcast, district courts now require consumer plaintiffs on Rule 23(b)(3) motions to show precisely how they will measure and prove classwide damages at trial. Unsound methods do not carry this burden. Indeed, Comcast suggests consumer plaintiffs must show that the proposed measure squarely rests on proof of consumer harm. Damages issues in consumer class actions will continue to garner Rule 23(b)(3) attention as lower courts grapple with Comcast’s full implications.

Originally published in Class Action Litigation Report.