Courts considering motions to certify a class action can't shy away from considering the merits, if doing so is necessary to determine whether the class meets the requirements of FRCP 23(a). That was the conclusion reached last week by the US Supreme Court in Comcast Corp. v. Behrend.
In Comcast, the plaintiffs sought to certify a class of Comcast cable television customers in the Philadelphia area. Plaintiffs claimed an antitrust violation arising out of Comcast's acquisition of competitor cable providers. In order to certify a class action under FRCP 23(a), plaintiffs were required to show, among other things,that damages were measurable on a classwide basis through a common methodology. In agreeing to certify the class, the Third Circuit Court of Appeals refused to entertain certain of defendant's arguments about the plaintiffs' damages model because those arguments had a bearing on the merits of plaintiffs' claim.
Justice Scalia, writing for the majority, stated that the inability of plaintiff's expert to tie the above-market prices to the alleged antitrust violations made the case improper for class certification. The Third Circuit's refusal to address that issue because it touched on the merits was improper.