Friday, April 12, 2013

Epstein on Comcast v. Behrend

Professor Richard Epstein (NYU) has a post on entitled The Precarious Status of Class Action Antitrust Litigation after Comcast v. Behrend. It begins:

The recent Supreme Court decision in Comcast v. Behrend is not likely to attract much popular press. The case is worlds apart from the Court's highly publicized class-action decision in Wal-Mart v. Dukes, which addressed burning issues of workplace parity between men and women. In contrast, Behrend reads like a quintessential technical case reserved for class action gurus and antitrust professionals. But on closer look, it may well turn out to be much more.


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There is no question that Comcast has heightened the pleading threshold for class certification in Rule 23(b)(3) actions.

Despite the dissent's effort to minimize the holding of Comcast to the particular facts of the case before it, the opinion of the Court goes to great lengths to (a) point out the specialness that Rule 23 is in our system of pleading, and (b) the rigorous analysis that the lower courts must engage in before certifying a class. This will empower defendants to defeat class actions at the certification stage, and equally reaffirm the role of the lower court as gate-keeper of the type of evidence that will satisfy the demanding requirements for class certification.

Posted by: Michael Lopez | May 6, 2013 10:49:00 PM

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