For an opinion that “breaks no new ground on the standard for certifying a class,” and “turns on the straightforward application of class-certification principles,” the U.S. Supreme Court’s most recent decision on class action certification, Comcast Corp. v. Behrend, 2013 LEXIS 2544 (March 27, 2013), sure struck a nerve.
A robust dissent challenged virtually every aspect of the majority decision and predicted that the “Court’s ruling is good for this day and case only.” Indeed, Comcast doesn’t so much break new ground as it emphatically insists on adherence to common ground: class plaintiffs “must affirmatively demonstrate . . . compliance” with Rule 23. Wal-Mart Stores v. Dukes, 564 U.S. ___, 131 S. Ct. 2541, ___, 180 L.Ed. 2d 374 (2011). Insistence on an evidentiary basis for compliance with the elements of Rule 23 — as well as the timing for that showing — lies at the heart of the dispute in this case. Here’s what happened.
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