This morning we observed oral arguments in the biggest Supreme Court Rule 23 case of this term – Comcast Corp. v. Behrend, No. 11-864 (argued Nov. 5, 2012). For those who want a taste of the arguments and questioning, the transcript is here.
The SCOTUS accepted Comcast’s petition for certiorari on the issue whether a class may be certified without resolving whether plaintiff has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis. While Behrend is not an employment case, the SCOTUS’s answer to that question has enormous strategic significance for employers defending workplace class action lawsuits.
At today’s oral argument, most Justices were actively engaged in questioning counsel on whether a district court may certify a class without resolving whether there is admissible evidence, including expert testimony, to show that damages can be awarded on a class-wide basis. Comcast seeks to secure a reversal of the Third Circuit’s earlier ruling that its attacks on the methodology of an expert report has no place in a class certification proceeding. As we wrote on this blog previously, the stakes associated with this ruling are very high for defendants in the context of forcing litigants to demonstrate the Rule 23 proof prerequisites to put a company to its paces in a class action. You can read our summary of the oral argument and its implications here.
Today’s article in Business Week on Comcast Corp. v. Behrend included our comments too, and can be accessed here.