The Supreme Court today put further burdens on class actions that have multiple theories of liability, holding that when only one of those theories survives the damages model used for certification must separately reflect that theory.  In Comcast v. Behrend, the plaintiffs brought an antitrust class action against the cable giant for acquiring a dominant position in the Philadelphia market by trading other markets for it to its Philadelphia competitors.  The resulting lack of competition, plaintiffs said, increased their cable costs.  CCL, in an amicus brief written by John Vail and filed on behalf of AAJ, Public Justice and AARP, urged the Court not to impose economic burdens that would render class actions impractical.

In ruling against the plaintiffs in this antitrust case, the Court avoided a broader rule that would affect the majority of class actions.  As the four dissenters noted, “The Court’s ruling is good for this day and case only. In the mine run of cases, it remains the ‘black letter rule’ that a class may obtain certification under Rule 23(b)(3)when liability questions common to the class predominate over damages questions unique to class members.”

The case was marked with procedural controversy, the Court having itself re-written the question presented, presumably to ask the question it wanted answered.  At oral argument it became clear that the question had been inaptly drafted.  The dissent noted that they would have ruled that review had been improvidently granted, and decried the unfairness to the plaintiffs of the court reaching a decision on a question that it had not fairly asked the parties to discuss.

The decision can be found at  http://www.supremecourt.gov/opinions/12pdf/11-864_k537.pdf.