As we've discussed several times since March, the Supreme Court's decision this spring in Comcast Corp. v. Behrend has provided fodder for a new and dangerous argument that a damages class cannot be certified whenever the damages must be calculated individually. District court decisions have been mixed on this question, but so far the response from the circuits has been good — both the Sixth and Ninth Circuits have rejected the argument.
Now, two more encouraging signs. First, last week the Second Circuit granted a petition for leave to appeal the denial of class certification in a wage-and-hour case on behalf of workers at Applebee's restaurants in New York State; in the decision the court of appeals agreed to review, the district court squarely held based on Comcast that the need for individualized damages calculations defeats class certification. (Public Citizen is co-counsel for plaintiffs on appeal.)
Second, just yesterday the Seventh Circuit, in a forceful opinion by Judge Posner reaffirming its prior decision in favor of class certification in a design-defect case about front-loading washing machines, joined the growing chorus rejecting the defense bar's reading of Comcast. As Judge Posner colorfully explained:
It would drive a stake through the heart of the class action device, in cases in which damages were sought rather than an injunction or a declaratory judgment, to require that every member of the class have identical damages. If the issues of liability are genuinely common issues, and the damages of individual class members can be readily determined in individual hearings, in settlement negotiations, or by creation of subclasses, the fact that damages are not identical across all class members should not preclude class certification. Otherwise defendants would be able to escape liability for tortious harms of enormous aggregate magnitude but so widely distributed as not to be remediable in individual suits.