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Got it. I'm Done. Clear all searches. Use this PIN across your devices. Larry Butler, et al. Ross , No. The Court directed the lower courts to take a hard look at Rule 23 b 3 class certification motions in light of Comcast. At the time of this article, at least seven appellate decisions have come down involving class certification issues under Rule 23 b 3. These decisions demonstrate a fair amount of variability in how courts are applying or avoiding Comcast. The 6th Circuit in Whirlpool and 7th Circuit in Butler , addressing Comcast on remand, distinguished Comcast and affirmed class certification in defective products cases.
Other circuits have issued class certification decisions citing, if not examining, Comcast , with different results. The 2nd and 9th Circuits affirmed district court orders certifying classes, but the 8th and 10th Circuits vacated or reversed orders certifying classes.
In the only antitrust case among the appellate decisions thus far, the D. Circuit recently vacated an order certifying a class in a price-fixing case, In re Rail Freight Fuel Surcharge Antitrust Litigation , based on a critically flawed damages model. Whirlpool and Butler : Applying Comcast on Remand.
The circuit courts deciding the two non-settled cases that the Supreme Court remanded in the wake of Comcast — Whirlpool and Butler —ruled that the cases were distinguishable from Comcast and affirmed orders certifying the classes.
In Whirlpool , plaintiffs alleged that Whirlpool front-loading washing machines were defective, leading to the growth of mold and mildew in some of the machines. In re Whirlpool Corp. Front-Loading Washer Prods.
The district court bifurcated liability and damages under Rule 23 c 4 , certifying a class for liability under Rule 23 b 3 and leaving damages for individual determination, and the 6th Circuit affirmed. The 6th Circuit concluded that Comcast did not change its previous analysis. According to the 6th Circuit, the Comcast dissent pointed to the key distinguishing factor in Whirlpool —that damages would be deferred for individual determination.
See id. The court ruled that common questions as to liability predominated over the need for individual damages calculations that would take place in separate proceedings if there is a finding of liability.
Butler v. Sears, Roebuck and Co. Like Whirlpool , Butler was a defective product case stemming from mold and mildew building up in some front-loading washers and defective control units. As did the 6th Circuit in Whirlpool , Judge Posner pointed to the fact that the court had certified only a liability class under Rule 23 c 4 as distinguishing Butler from Comcast.
Since Comcast , appellate courts have affirmed orders certifying class actions either by distinguishing the case or citing it without lengthy analysis of its impact. In Leyva v. Medline Industries, Inc. The court reversed and remanded with an instruction that the district court enter an order certifying the class.
Pricing Litigation , No. Foodservice engaged in fraudulent billing practices with respect to tens of thousands of customers. Accordingly, the 2nd Circuit affirmed the order certifying the class. Other appellate decisions since Comcast have reversed orders certifying class actions under Rule 23 b 3.
For example, in Halvorson v. Auto-Owners Insurance Co. The plaintiffs alleged they had submitted claims for medical expenses, but received less than the claimed amounts under a third-party claim review based on a percentile formula.
Chieftain Royalty Co. XTO Energy, Inc. July 9, ; Wallace B. Roderick Revocable Living Trust v. Chieftain , U. That is encouraging for defendants in antitrust cases, where expert reports are amenable to rigorous scrutiny and therefore are susceptible to orders denying class certification under Rule 23 b 3.
The D. Circuit explained that the Supreme Court tightened the standard for class certification under Rule 23 b 3. It is now clear, however, 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. No damages model, no predominance, no class certification. The court held that the district court had not adequately scrutinized the model, and remanded for reconsideration in light of Comcast. The parties recently briefed for the district court the scope of review required by the remand order. Rail Freight makes no mention of the Comcast dissent, which as explained above tried to paint the majority opinion as imposing no new limits on Rule 23 b 3.
Merrell Dow Pharmaceuticals, Inc. And the court did just that; it conducted a very lengthy and detailed analysis of both the facts and the expert reports—in short, the court did what Comcast commands courts to do.
The court concluded that the plaintiffs satisfied Rule 23 b 3 as to the antitrust violation and damage elements, but had not done so as to class-wide impact. Therefore, the court denied the motion for class certification, while granting leave to amend in light of ongoing discovery that might bear on certification.
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