A wake-up call for those addressing corporate wrongdoing
One of the most important tools for ending misdeeds and for compensating the resulting victims is litigation prosecuted on a class-wide basis. Consistent with its apparently escalating hostility toward such systemic legal action, the Supreme Court recently made it more difficult for cases to be certified as class actions. In Comcast Corp. v. Behrend, a 5-4 decision authored by Justice Antonin Scalia, the Supreme Court held that plaintiffs seeking damages for corporate wrongdoing will only be able to proceed as a class if they can establish there is a sufficient way to calculate damages on a system-wide basis.
By so ruling in Comcast, 5 Justices disregarded decades of settled precedent that a case will be certified as a class so long as common questions of liability as to the class “predominate” over individual questions of damages for particular plaintiffs. That the Justice Scalia majority disregarded time-honored precedent while purporting to be faithful to precedent is ironic, to put it mildly. Given recent politically charged pronouncements by Justice Scalia and other “conservatives” on the Supreme Court, however, such judicial activism is perhaps not surprising.
Although Comcast was an anti-trust case, it has clear and significant consequences for consumer protection matters. In fact, Comcast began because millions of consumers allegedly paid inflated cable bills due to anti-competitive behavior by the company. Importantly, the impact of Comcast will extend far beyond the anti-trust and consumer protection context. Like consumer protection cases, employment law and civil rights matters typically involve questions around the proper method for calculating damages. Thus, defendants in employment, civil rights, and consumer protection cases alike will likely be using Comcast regularly to oppose class certification going forward. Given the trickier ground that must be tread because of Comcast and other recent adverse rulings by the Supreme Court, experienced and savvy counsel should be consulted before proceeding with class claims.
