Comcast Corp. v. Behrend (11-864)

argument 11-864

Comcast Corp. v. Behrend

Supreme Court of the United States 1h 0m 7 speakers 8 chapters transcribed 4 days ago official recording ↗

▲ 0

Transcript

jump: chapters · speakers · find in transcript

Transcript

Transcript generated automatically by AI and may contain errors.

What is the Third Circuit’s rule on expert evidence for class certification?

John G. Roberts 0:01

Look your argument first this morning in case eleven eight sixty four, Comcast Corporation versus Behrend. Mr. Estrada?

Mr. Estrada 0:11

Thank you, Mr. Chief Justice, and may it please the court. The Third Circuit held in this case that the assessment of the adequacy of expert evidence offered in support of class certification is a merits question that has no place in the class certification inquiry. according to the Third Circuit and to the plaintiffs in this court. What is sufficient is for the proponents of class certification to point to some abstract methodology, such as econometrics or regression analysis, that conceivably might be applied to the problem at hand in a way in which, in the fullness of time, will evolve into admissible evidence by the time of the class trial.

Ruth Bader Ginsburg 0:53

Mr Estrana, you uh Limiting your argument to the determination of damages as I understand it.

Unknown 1:01

I think you limited my argument to the termination of damages, Justice Ginsburg.

Ruth Bader Ginsburg 1:06

Because this because the Third Circuit agreed that as far as antitrust impact Uh that could be established on a class basis.

Mr. Estrada 1:15

We we obviously as is obvious from our third p petition we do not agree with that. For purposes of inquiring into the damages question in this court, I think we have to assume that that is so. I think it doesn't change the outcome. But

Ruth Bader Ginsburg 1:30

why why not? Because generally and At least it's my impression that In class certifications If The liability question can be adjudicated on a class basis. then the damages questions May be adjudicated individually. Take a take a Title Seven case. Liability, pat pattern of practice of discrimination, therefore liability. But damages can be assessed on an individual basis. So why isn't bifurcation Possible here.

Mr. Estrada 2:13

Well, let me make two points of response to that question, Justice Ginsberg. One about what the the legal standards are and you know the second one which is as important about what the record in this case is. With respect to the first point, what the rule asks us to look at is not questions of damages versus liability, but whether the common questions predominate over those that are individual to the class members. I don't disagree and it is is not my position today um that there may be cases in which individual damages questions are consistent with class certification. But as the lower courts have recognized, it is not the case that all damages questions may may remain individual consistently with class certification.

Mr. Estrada 2:59

Indeed the nineteen sixty six advisory nodes. expressly say that questions of damages with respect to class members may or may not predominate in cases like this, i. e. antitrust class actions.

Anthony M. Kennedy 3:13

But Mr Estrada, doesn't Justice Ginsburg's question actually point out The the the law that both the district court and the circuit court used in this case was actually quite favourable to you. Unlike some courts, both the district court and the circuit court said that the plaintiffs needed to show that there was a class wide measurement of damages. And then in addition, both courts said Um uh really it was uh the burden was on the plaintiffs to demonstrate that that class wide measure of damages existed. Now I understand that you have problems with the way in which the plaintiffs met that burden. You say that they didn't meet that burden. But it seems to me that the legal standard that was used was exactly the legal standard that you wanted, that the plaintiffs had to come in and show.

Anthony M. Kennedy 4:06

uh uh by a preponderance that they had a class wide way to measure damages in this case.

Mr. Estrada 4:13

I don't think that's right, Justice Kagan. I think we can have a healthy debate about whether the district court did uh what you just finished saying. I think there can be no debate that the Court of Appeals did so because repeatedly throughout its opinion said that the questions as to the adequacy of whether they had complied with the hydrogen peroxide standard was a merits question that was for later adjudication and well look

Anthony M. Kennedy 4:38

here's what the district court said. The experts' opinions raise substantial issues of fact and credibility that we are required to resolve to decide the pending motion that is the motion for class certification.