Third Circuit joins circuit consensus on Comcast, also reaffirms that standing need not be established for each class member

Yesterday, in a product-defect class action about Volvos with faulty sunroofs, the Third Circuit addressed two important class action questions — one arising in the wake of the Supreme Court's decision in Comcast Corp. v. Behrend, the other to be examined in the upcoming term in Tyson Foods v. Bouaphakeo.

The Comcast question, which we've discussed previously on the blog (for instance, here), is whether a class may be certified if class members' damages must be measured individually. Joining the unanimous view of the circuits to have addressed the question (the First, Second, Fifth, Sixth, Seventh, Ninth, and Tenth, by my court), the Third Circuit answered yes. On Comcast, the court explained:

Volvo relies on Comcast for the proposition that Plaintiffs must show that “‘damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3).’” Volvo Br. 44 (quoting Comcast, 133 S. Ct. at 1433). In so doing, Volvo selectively quotes from Comcast as though the Court were creating a broad-based rule applicable to Rule 23(b)(3). Yet the Supreme Court specifically noted that it was not breaking any new ground by stating at the beginning of its opinion: “This case thus turns on the straightforward application of class-certification principles.” Comcast, 133 S. Ct. at 1433. A close reading of the text above makes it clear that the predominance analysis was specific to the antitrust claim at issue. That is eminently sensible. Every question of class certification will depend on the nature of the claims and evidence presented by the plaintiffs.

The question shared in common with Bouaphakeo (pronounced "boo-uh-fuh-KAY-oh"; you can find the papers at SCOTUSBlog, here) is whether the possibility that one or more class members may not have been injured defeats standing for the class. On this issue, the Third Circuit again aligned itself with the consensus position among the federal circuits that standing for all class members need not be shown:

[A] class action is a representative action brought by a named plaintiff or plaintiffs. Named plaintiffs are the individuals who seek to invoke the court’s jurisdiction and they are held accountable for satisfying jurisdiction. Thus, a class action is permissible so long as at least one named plaintiff has standing. Requiring individual standing of all class members would eviscerate the representative nature of the class action. It would also fail to recognize that the certified class is treated as a legally distinct entity even though the outcome of such an action is binding on the class.

(Citations omitted.) The court went on to note that the Supreme Court has treated representatives' standing as sufficient in a variety of contexts.

As the Third Circuit's reasoning demonstrates, a contrary holding on the standing question would be a sweeping one that would jeopardize many class actions. Hopefully the standing challenge that the Third Circuit rejected here is one that the Supreme Court will bury once and for all in Bouaphakeo.

You can read the Third Circuit's whole decision in Neale v. Volvo Cars of North America LLC here.

[Correction: this post originally mixed up the date argued and the date decided, and as a result misindentified the date of decision as June 2 rather than July 22. The post has now been updated. Thanks to an anonymous commenter for flagging the error.]


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