Presenting a live 90-minute webinar with interactive Q&A "No Injury" and "Overbroad" Class Actions After Comcast, Glazer and Butler: Implications for Certification Navigating Complex Issues of Overbreadth and Damages in Consumer Product Cases TUESDAY, APRIL 1, 2014 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Frederick S. Longer, Member, Levin Fishbein Sedran & Berman , Philadelphia Jessica D. Miller, Partner, Skadden Arps Slate Meagher & Flom , Washington, D.C. Geoffrey M. Wyatt, Counsel, Skadden Arps Slate Meagher & Flom , Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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“No Injury” & “Overbroad” Class Actions After Comcast, Butler & Glazer: Implications for Certification SPEAKERS: FRED LONGER JESSICA MILLER GEOFFREY WYATT
OVERVIEW – Significance of Comcast Corp. v. Behrend – Glazer & Butler : what they mean for products cases – Standing: is it a viable basis to challenge overbroad classes? 6
SIGNIFICANCE OF COMCAST – Comcast Corp v. Behrend , 133 S. Ct. 1426 (2013) • Class of two million cable subscribers asserted antitrust claims against Comcast • Claimed Comcast increased its share of Philadelphia cable market and engaged in anticompetitive conduct • Initially had four theories of antitrust impact • Court certified one theory • Plaintiffs sought to prove classwide damages using an expert opinion that presumed viability of all four theories • Court of appeals affirmed certification • Supreme Court held that class had to be decertified because the damages and liability theories did not match 7
COMCAST – NO MISMATCHES • Supreme Court majority reversed class certification – Plaintiffs did not present classwide damages theory that matched certified liability theory – Plaintiffs ’ damages model “failed to measure damages resulting from the particular antitrust injury on which [the defendants’] liability [was] premised” – Thus, “questions of individual damages calculations [would] inevitably overwhelm questions common to the class,” defeating predominance and rendering classwide treatment improper 8
SIGNIFICANCE OF COMCAST • Plaintiffs’ view – Certiorari limited to one question: Whether 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 – Dissent: what happened to the question on which certiorari was granted? • “The Court’s ruling is good for this day and case only” 9
COMCAST – NO MISMATCHES • First takeaway: classwide liability and damages theories must match – Plaintiffs’ view – this conclusion only applies to antitrust cases • Harris v. Comscore Inc., 292 F.R.D. 579, 589 n.9 (N.D. Ill. 2013) (“The Supreme Court’s holding came from its assumption, uncontested by the parties, that Rule 23(b)(3) requires that damages must be measurable based on a common methodology applicable to the entire class in antitrust cases. That assumption, even assuming it is applicable to privacy class actions in some way, is merely dicta and does not bind this court .”) – Defendants’ view – principle is broadly applicable • Jacob v. Duane Reade, Inc. , 293 F.R.D. 578 (S.D.N.Y. 2013) (noting that courts have “grappled” with Comcast ’s “interaction with non - antitrust class actions” and concluding that the no -mismatch rule applies broadly in cases where plaintiffs attempt to rely on purportedly common damages evidence) 10
COMCAST – NO MISMATCHES • Case study: In re Skelaxin Metaxalone Antitrust Litig. , 2014 U.S. Dist. LEXIS 11467 (E.D. Tenn. Jan. 30, 2014) – Putative antitrust class action alleging defendants colluded to delay market entry of generic alternative – Plaintiffs sought the difference between the amount they paid and the amount they would have paid for a theorized generic – The court denied both the direct and indirect purchasers’ motions for class certification • “[I]f Comcast is given its full breadth . . . the incongruity between End Payors’ description of class membership and the entities included in its impact and damages model might defeat this proposed class” • “Given Comcast ’s requirement that the damages model and the theory of liability match, [the expert’s damages] model [was] problematic” 11
COMCAST – NO MISMATCHES • Case study: Cannon v. BP Prods. N. Am. , 2013 U.S. Dist. LEXIS 142934 (S.D. Tex. Sept. 30, 2013) – Class action related to defendant’s chemical releases and emissions – Certification denied – plaintiffs could not prove classwide causation or damages – Expert’s “overarching theory of damages” could not support plaintiffs’ certification bid – it was “disconnected from Plaintiffs’ causes of action of negligence, trespass, and nuisance which [were] limited to a particular time period beginning in late 2008” • One problem: expert advanced a real estate trend analysis that was based on the “wrong class area” 12
COMCAST – SCRUTINY OF EXPERTS • Second takeaway: – Defendants’ view: courts must rigorously analyze expert evidence at class certification stage • It appears certiorari originally granted to resolve the applicability of Daubert at class certification – But no Daubert issue was preserved • Instead, the Court addressed the merits of the damages evidence under the “rigorous analysis” requirement • It rejected the notion that expert damages evidence need not be scrutinized on the merits; “[u]nder that logic, . . . any method of measurement is acceptable so long as it can be applied classwide, no matter how arbitrary the measurements may be,” which would “reduce Rule 23(b)(3)’s predominance requirement to a nullity” 13
COMCAST – SCRUTINY OF EXPERTS • Second takeaway: – Plaintiffs’ view: “Merits questions may be considered to the extent – but only to the extent – that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied” • Amgen v. Connecticut Retirement Plans & Trust , 133 S. Ct. 1184, 1195 (2013) 14
COMCAST – SCRUTINY OF EXPERTS • Case study: In re Rail Freight Fuel Surcharge Antitrust Litig. , 725 F.3d 244 (D.C. Cir. 2013) – “ It is now indisputably the role of the district court to scrutinize the evidence before granting certification, even when doing so ‘requires inquiry into the merits of the claim’” – “It is now clear [ ] that Rule 23 not only authorizes a hard look at the soundness of statistical models that purport to show predominance – the rule commands it” – “If the damages model cannot withstand this scrutiny then, that is not just a merits issue” – “No damages model, no predominance, no class certification” 15
COMCAST – SCRUTINY OF EXPERTS • Case study: In re Urethane Antitrust Litig. , 2013 WL 2097346 (D. Kan. May 15, 2013) – Defendant’s motion to decertify class action where the same expert as in Comcast had testified to antitrust impact was rejected • “There is no basis to strike Dr. McClave’s testimony or to conclude that his methodology could not provide a causal link between plaintiffs’ theory of liability and the class -wide impact” 16
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