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Consumer Class Action Update: No Damages or Injury, No Predominance and No Class

The U.S. Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) was historic. In one swoop, the Court confirmed that Federal Rule of Civil Procedure (“Rule”) 23 requires proof that damages and injury are amenable to class treatment before a class can be certified. Id. at 1432. In an effort to downplay the importance of Comcast, the Plaintiffs’ bar has been clinging to Justice Ginsburg’s commentary in dissent, that Comcast “breaks no new ground on the standard for certifying a class action under [Rule] 23(b)(3).” Id. at 1436 (Ginsburg, J. dissenting). However, this is becoming harder for plaintiffs to do each day, as more and more district courts are relying on Comcast to deny class certification.

Comcast’s broad reach, however, is beginning to be felt beyond just district courts. Most recently, in In re: Rail Freight Fuel Surcharge Antitrust Litigation – MDL No. 1869, No. 12-7085, 2013 U.S. App. LEXIS 16500 (D.C. Cir. Aug. 9, 2013), the United States Court of Appeals for the District of Columbia Circuit confirmed that Comcast has established a higher standard for plaintiffs seeking to pursue a class action, requiring that plaintiffs establish not only classwide proof of damages, but also injury.


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