The Retail Litigation Center (RLC) has submitted an amicus curiae brief to the
Supreme Court of the United States asking the Court to overturn the decision by
the United States Court of Appeals for the Third Circuit Court in Comcast v. Behrend.
The case is scheduled for oral argument on November 5.
Comcast v. Behrend addresses
a fundamental issue regarding certification of class actions: “Whether a
district court may certify a class action without resolving whether the
plaintiff class has introduced admissible evidence, including expert testimony,
to show that the case is susceptible to awarding damages on a class-wide
basis.” In practical terms, the case turns on whether plaintiffs may
obtain certification without first producing hard evidence to show that the
case is truly suited for class adjudication. The Third Circuit
specifically held that expert testimony submitted at the certification stage
need not meet the Daubert reliability threshold.
RLC’s brief, authored by Mark
Stancil of the Washington, D.C., firm Robbins Russell, argues that the Third
Circuit’s desire to defer such questions beyond the certification stage ignores
the practical reality that certification often coerces settlements due to the
complexity, cost, and unpredictability of class actions. Large retailers
face a constant stream of such lawsuits, which sometimes rely on questionable
theories in pursuit of class-action status. By severely diluting the
showing necessary for class certification, the lower court decision will likely
embolden those inclined to file dubious claims in hopes of extracting financial
The brief also argues that the
decision below ignores crucial aspects of the Supreme Court’s recent decision
in Wal-Mart Stores, Inc. v. Dukes. According to the brief:
“[T]he decision [in Comcast v.
Behrend] and Dukes read like two ships passing in the night.
The former set an improbably low standard for evidence necessary to achieve
class certification, rejecting the need for admissible expert evidence under Daubert
and dismissing basic logical defects as irrelevant. The latter not only
suggested that Daubert should apply, but also subjected plaintiffs’
evidence to detailed scrutiny. This Court should reaffirm the rigorous
analysis required in Dukes and expressly hold that admissibility is a
necessary precondition for evidence submitted in support of class
The full brief can be found here.
The Retail Litigation Center is a public policy organization that
identifies and engages in legal proceedings which affect the retail
industry. The RLC, whose members include some of the country’s largest
retailers, was formed to provide courts with retail industry perspectives on
significant legal issues, and highlight the potential industry-wide
consequences of legal principles that may be determined in pending cases.