Your humble blogger is attending the DRI CLE seminar on class actions in our nation’s capital, organized by my pal Jeff Holmstrand and my partner Tim Congrove, outstanding class action practitioners.

The lead off speaker was Miguel Estrada, speaking on Comcast, which we have posted on before, as well as the aftermath.

He offered some interesting personal observations about this important class action decision. Key take aways: individual damage questions can be a significant barrier to class certification under Rule 23(b)(3). A district court considering class certification must look at how damages will be tried and managed if a class is certified.  Is it a mere mathematical exercise, or are there factual issues that vary by class members? And the district court must conduct a rigorous analysis of the class plaintiff’s proposed method for computing damages allegedly on a class-wide basis (which almost certainly will require a Daubert analysis in most cases).

Interesting observation: while it is unusual for a dissenting justice to read the dissent from the bench, in this case two justices did so.  One wonders whether that emphasis on the intensity of the dissent is inconsistent with the content of the dissent, which tried to argue that the decision could be limited to its facts, nothing big happened here, nothing to look at, keep moving…

Most lower courts are following and applying the Comcast decision.  E.g., Forrand, 2013 WL 1793951 (C.D. Cal.); TL Cannon, 2013 WL 1316452 (N.D.N.Y.).  see also the Martin case we posted on here.

One going the other way is Leyva in the 9th Circuit, 2013 WL 2306567, which performs gymnastics to read Comcast as stating only the proposition that a plaintiff must show the damages flow from the alleged illegal acts of the defendant.