The Supreme Court’s recent opinion in Comcast Corp. v. Behrend all but invites defendants to make a number of arguments when attempting to defeat class certification. The Behrend case is therefore the latest move by the U.S. Supreme Court to limit class actions by giving defendants expanded tools to prevent class certification under Rule 23 of the Federal Rule of Civil Procedure.

Background -

Behrend was a Comcast subscriber in the Philadelphia region. He filed an antitrust suit under the Sherman Act alleging that Comcast engaged in anti-competitive practices by “swapping” its cable systems outside of the region for competitor systems within the region. Behrend sought certification of a class of subscribers under Federal Rule of Civil Procedure 23(b)(3).

In analyzing the Rule 23(b)(3) requirements for class certification, the District Court formulated the predominance requirement as requiring Behrend to show “(1) that the existence of individual injury resulting from the alleged antitrust [impact] . . . was capable of proof at trial through evidence that was common to the class . . . ; and (2) that the damages . . . were measurable on a class-wide basis through use of a common methodology.”