Applebee'sIn Roach v. T.L. Cannon Corp., No. 13-3070-cv (2d Cir. Feb. 10, 2015), the Second Circuit gave a narrow reading of the Supreme Court's ruling on class certification in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).*

The outcome does not surprise Blawgletter, who had the honor of arguing Comcast Corp. v. Behrend on behalf of class plaintiffs. In view of Comcast's provenance, it should not surprise anyone else either.

After losing in the courts below, Comcast sought review on the question of whether the Third Circuit and the district court erred by failing to grapple with the "merits", but the Court granted cert. on another issue, one that it had expressly reserved the year before (2011) in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) — whether class plaintiffs must meet the Daubert test if they rely on expert proof to establish damages.

But the Court seems not to have realized that Comcast hadn't raised the Daubert issue in the district court or the court of appeals, that Comcast had as a result "forfeited" any objection to admissibility of our damages expert's opinions, and that the case therefore "would give lower courts scant guidance . . . in the great majority of cases" involving class certification. Respondents' Br. at 19.

The mismatch between the case that the Court thought it had and the one that it actually faced became more salient during oral argument. That apparently led to an impromptu post-argument meeting of the justices and a rewrite of the Question Presented; the revision in turn prompted a dual dissent, which Justices Ginsburg and Breyer delivered on the morning of the first arguments in the Obamacare cases.

At the Court, the history of the Comcast case had the effect of barring a reversal unless the Court could conclude that the class expert's testimony in no way tended to show damages, class-wide or otherwise. The majority did reach that conclusion, but it had to determine (in our view, contrary to the district court's findings and the evidence) that the damages expert tried to link damages to specific anti-competitive conduct but failed. (The liability expert did make the causal connection, but because of how the Court had re-framed the Question Presented, the briefing and argument did not explore the sufficiency of that important part of the record, which in any event did not support the Court's reading of the evidence.)

Almost all of the courts interpreting Comcast have correctly appreciated the narrowness of the Court's holding. While Blawgletter respectfully disagrees with the majority's conclusion that class plaintiffs did not present evidence linking anti-competitive conduct with class-wide damages, the case stands for that conclusion and nothing more.

We therefore think that the Second Circuit certainly reached the right conclusion yesterday when it held just that in Roach v. T.L. Cannon Corp.


For an overview of the Second Circuit case, which involved wage and hour claims by Applebee's employees, see Alison Frankel, The Supreme Court's class action underachiever", Feb. 11, 2015, Reuters.