Supreme Court Opinion in Comcast Corp. v. Behrend: Another view

By Stephen Gardner

I echo what Alan White said, but have thoughts of my own. The first of which is:

Oh lordy.

This case may be the high-(low-?)water mark for Justice Scalia's willingness to manipulate reality and the Court's jurisdiction to get the result he wants.

As the dissent (quoted in part below) sets out in detail, the petitioner sought review of one question: Whether a district court may certify a class action without resolving ‘merits arguments’ that bear on 23’s prerequisites for certification.

This case comes to the Court infected by our misguided reformulation of the question presented. For that reason alone, we would dismiss the writ of certiorari as improvidently granted. 

 

Comcast sought review of the following question:“[W]hether a district court may certify a class action without resolving ‘merits arguments’ that bear on [FederalRule of Civil Procedure] 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).” Pet. for Cert. i. We granted review of a different question:“Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” 567 U. S. ___ (2012) (emphasis added). 

 

Our rephrasing shifted the focus of the dispute from the District Court’s Rule 23(b)(3) analysis to its attention (or lack thereof) to the admissibility of expert testimony. The parties, responsively, devoted much of their briefing to the question whether the standards for admissibility of expert evidence set out in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), apply in class certification proceedings. See Brief for Petitioners 35–49; Brief for Respondents 24–37. Indeed, respondents confirmed at oral argument that they understood our rewritten question to center on admissibility, not Rule 23(b)(3). See, e.g., Tr. of Oral Arg. 25.

As it turns out, our reformulated question was inapt. To preserve a claim of error in the admission of evidence, a party must timely object to or move to strike the evidence.Fed. Rule Evid. 103(a)(1). In the months preceding the District Court’s class certification order, Comcast did not object to the admission of Dr. McClave’s damages modelunder Rule 702 or Daubert. Nor did Comcast move to strike his testimony and expert report.

Consequently, Comcast forfeited any objection to the admission of Dr.McClave’s model at the certification stage. At this late date, Comcast may no longer argue that respondents’ damages evidence was inadmissible. 

 

Comcast’s forfeiture of the question on which we granted review is reason enough to dismiss the writ as improvidently granted. See Rogers v. United States, 522 U. S. 252, 259 (1998) (O’Connor, J., concurring in result) (“[W]e ought not to decide the question if it has not been cleanly presented.”); The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 183 (1959) (dismissal appropriate in light of “circumstances . . . not fully apprehended at the timecertiorari was granted” (internal quotation marks omitted)). The Court, however, elects to evaluate whether respondents “failed to show that the case is susceptible to awarding damages on a class-wide basis.” Ante, at 5, n.4 (internal quotation marks omitted). To justify this second revision of the question presented, the Court observes that Comcast “argued below, and continue[s] to argue here,that certification was improper because respondents hadfailed to establish that damages could be measured on a classwide basis.” Ibid. And so Comcast did, in addition to endeavoring to address the question on which we granted review. By treating the first part of our reformulated question as though it did not exist, the Court is hardly fair to respondents.

 

Abandoning the question we instructed the parties to brief does “not reflect well on the processes of the Court.” Redrup v. New York, 386 U. S. 767, 772 (1967) (Harlan, J., dissenting).