United States: State Court Adoption Of Comcast V. Behrend

In Comcast v. Behrend, 569 U.S. 27 (2013), the United States Supreme Court clarified the requirements for establishing that classwide injury and damages predominate over individual issues for the purposes of FRCP 23(b)(3). In particular, where a party relies on a damages model to establish predominance, the model must be consistent with the theory of liability and "measure those damages attributable to that theory." Id. at 35. A defendant may challenge the damages model to show that "questions of individual damage calculation will inevitably overwhelm questions common to the class." Id. at 34. In turn, federal courts should perform a "rigorous analysis" to determine the soundness of the model, even if such inquiry will "overlap with the merits of the plaintiff's underlying claim." Id. at 34-35.

Comcast has been routinely applied by federal courts in class actions involving price fixing, anticompetitive conduct or other cases requiring complicated modeling to determine classwide impact. And where damages models are insufficient – because they cannot distinguish between liable misconduct and nonliable market factors, rest on unreliable assumptions or methodology, or are not grounded in facts – federal courts will deny certification. See In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 253 (3d Cir. 2013) (damages model led to false positives; "No damages model, no predominance, no class certification"); In re POM Wonderful LLC, 2014 WL 1225184, at *5 (C.D. Cal. March 24, 2014) (denying class certification where expert "made no attempt, let alone an attempt based upon sound methodology, to explain how Defendant's alleged misrepresentations caused any amount of damages"); and In re Domestic Drywall Anti. Litig., 2017 WL 3700999, at *14 (E.D. Pa. Aug. 24, 2017) (no predominance where damages model was "riddled with assumptions that divorce the model from the facts").

State court adoption of Comcast has been slower, with mixed results. Four states − Illinois, Montana, Pennsylvania and Texas − have adopted Comcast, noting that a Rule 23(b)(3) inquiry must be subject to rigorous scrutiny and well-grounded in facts. See Bueker v. Madison County, 61 N.E.3d 237, 252 (Ill. Ct. App. 5th Dist. Sept. 7, 2016) (adopting Comcast and noting that individualized review of property precluded class treatment of damages claims); Braun v. Wal-Mart Stores, 630 Pa. 292, 310-11 (Pa. 2013) (because classwide damages calculation was well-grounded in facts, and comported with the theory of liability, class certification was affirmed; citing favorably to Comcast); Canyon Lake Island Prop. Owners Ass'n v. Sterling/Suggs Ltd. P'ship, 2015 WL 3543125, at *7 (Tx. Ct. App. June 5, 2015) (where classwide injury and damages were not based on facts, the plaintiff did not meet its burden on predominance and class certification was denied; citing favorably to Comcast); and Ascencio v. Orion Int'l Corp., 2018 WL 2213938 (Mont. S.Ct. May 15, 2018) (where the plaintiff presented no facts supporting Rule 23(b)(3) superiority, class certification was denied; citing favorably to Comcast).

Two other states − New York and California – have refused to extend Comcast to state law procedural requirements. See Cardona v. Maramont Corp., 2014 WL 2558176, at *13 (N.Y. Sup. Ct. June 6, 2014) (holding Comcast is not controlling on New York class actions) and Ammari Electronics v. Pac Bell Directory, 2014 WL 989166, at *11 (Cal. App. Dist. 1 March 14, 2014) (Comcast requirement of significant proof of classwide damages not applicable to California procedure).

However, none of these state courts address when a damages model is necessary to establish the predominance of classwide injury or damages under Comcast. This may change with a recent case pending before the Ohio Supreme Court, Satterfield v. Ameritech Mobile Communications, Case No. 2017-0684.

In 2001, the Public Utilities Commission of Ohio found that Ameritech had engaged in rate discrimination, where a third-party reseller of cellular service paid Ameritech more for capacity than Ameritech's own retail arm.

Subsequently, the plaintiffs filed a class action claiming that Ameritech's inflated wholesale prices resulted in inflated prices for consumers. In seeking class certification, the plaintiffs only generally described their theory of common injury and damages, and did not provide a classwide damages model. The plaintiffs asserted that a model describing classwide injury and related damages is not a prerequisite under Rule 23, and that such a model would be developed after certification and fact discovery.

The trial court certified the class and the appellate court affirmed. The lower courts held that requiring a damages model during class certification would "delve too deeply into the merits." See, e.g., Satterfield v. Ameritech Mobile Comm'ns, Inc., 86 N.E.2d 830, 842-43 (Ohio Ct. App. 2017).

In seeking discretionary review before the Ohio Supreme Court, Ameritech argued that under Comcast, a court should scrutinize whether classwide injury and damages predominate over individual issues. In pricing and anti-competition cases, this requires review of a model connecting theories of liability with classwide damages. According to Ameritech, a damages model was particularly important in Satterfield because consumer pricing depended on many individual factors, such as length of contract, type of phone, and the underlying wholesale price. The Ohio Supreme Court accepted the appeal.

If the Ohio Supreme Court adopts Comcast, Ohio courts will be required to perform rigorous, fact-based scrutiny to confirm that damages issues predominate over individual issues. Where the question of predominance requires a model, such as in anti-competition and pricing cases, the model must be based on facts and assumptions aligning with the plaintiff's theory of the case. Promises to develop the model post-discovery, or development of a model that is not grounded in facts or the theory of liability, are unlikely to satisfy the predominance prong under Ohio's Rule 23(B).

Briefing in Satterfield will complete over the summer, with oral argument likely to be held later this year.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions