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Complex Litigation | MONDAY, MAY 23, 2016 | S5

priate for class treatment, bifurcation can rend, 133 S. Ct. 1426 (2013); Wal-Mart Stores trust injury pursuant to four distinct theories. of damages is suficient to meet the “rigor-

facilitate the trial of liability on a class-wide v. Dukes, 131 S. Ct. 2541 (2011).
Comcast, 133 S. Ct. at 1430-32. In certifying ous analysis” of predominance described by
basis and cabin those issues that require more Although decided on Rule 23(a)(2) com- the class, the district court accepted only one Scalia.3 Most relevant for present purposes
individualized treatment in a subsequent trial monality grounds—and not Rule 23(b)(3) of the four theories of injury but accepted a are the numerous courts that have effectively
of damages—in effect, rescuing the plain- predominance grounds—Wal-Mart shifted damages model premised on the success of side-stepped Comcast by bifurcating liability
tiff’s claims from being abandoned or never the class-action landscape by casting doubt all four theories. Id. The Court of Appeals for and damages and thus reducing or eliminating
brought in the irst place. For a defendant, on the extent to which individual evidence the Third Circuit afirmed. Id.
the plaintiffs’ burden of showing the required
bifurcation can help to ensure Due Process can be extrapolated or used to prove ele- In a 5-4 opinion authored by Justice Anto- congruence and proof of class damages.4
by allowing a defendant to raise nuanced ments of a class’s claim or its damages. The nin Scalia, the U.S. Supreme Court reversed Against this somewhat opaque backdrop,
challenges to the evidence at the damages Wal-Mart court reversed the certiication of a the class certiication order as improperly the Supreme Court’s recent opinion in Tyson

phase that might otherwise be overwhelmed class of 1.5 million current and former female granted under Rule 23(b)(3). The majority Foods has clariied Wal-Mart and Comcast for
by or subsumed in the consideration of employees at Wal-Mart who alleged gender decision rested speciically on the failure of class-action practitioners and connected the
liability.
discrimination in pay and promotions. The the plaintiffs’ damages model to measure sole- dots between the predominance inquiry and
Bifurcation has been in use for many years, plaintiffs’ theory of commonality was that ly the damages lowing from the single theory bifurcation in critical ways.
albeit quietly, but recent Supreme Court case Wal-Mart employed a “strong and uniform of injury accepted by the district court. Id. at
law addressing commonality and predomi- ‘corporate culture’” of gender bias. Wal-Mart, 1432-33. Requiring a “rigorous analysis” of the ‘Tyson Foods’
nance under Rules 23(a) and 23(b)(3) sug- 131 S. Ct. at 2548. To support this theory, the named plaintiffs’ proposed proof at class cer-
gests that practitioners must focus anew on plaintiffs relied in part on evidence extrapo- tiication, Scalia found the plaintiffs’ damages Issued on March 22nd, Tyson Foods further

the beneits and pitfalls of this device.
lated from a random sample of class mem- model incapable of measuring damages on a deines the role of representative evidence
bers. The court rejected this approach. Id. at class-wide basis because of this incongruence as a means of establishing predominance. It
‘Wal-Mart’, ‘Comcast’, and Predominance
2561. It explained that a “Trial by Formula” to between the accepted liability theory and also demonstrates the risks and rewards of
satisfy Rule 23 would deprive the defendant the expert’s damages model. Id. at 1433. As bifurcating liability and damages phases in a
Rule 23(b)(3) allows for class certiication of an opportunity to litigate individualized a result, individualized damages determina- Rule 23(b)(3) class action, perhaps inviting
if “the court inds that the questions of law or defenses, thereby modifying substantive tions would be required and predominance future defendants to seek bifurcation more
fact common to class members predominate rights in a manner that is prohibited by the could not be demonstrated.
readily to avoid a class-wide damages award.
over any questions affecting only individual Rules Enabling Act. Id.
Comcast has caused a considerable amount In Tyson Foods, plaintiff-workers at an Iowa
members, and that the class action is supe- The Supreme Court’s subsequent decision of confusion in the lower courts. Certain pork processing plant brought a federal col-

rior to other available methods for fairly and in Comcast further addressed the use of statis- courts have cited Justice Scalia’s expansive lective action under the Fair Labor Standards
eficiently adjudicating the controversy.” Fed. tical evidence to establish class certiication, language to require uniform, class-wide proof Act and a Rule 23 class action alleging viola-
R. Civ. P. 23(b)(3). The Supreme Court’s deci- this time interpreting Rule 23(b)(3)’s predomi- of damages at the certiication stage.2 Oth- tion of Iowa state law. The plaintiffs alleged
sions in Wal-Mart and Comcast, respectively nance requirement. Comcast involved allega- ers have interpreted Comcast more narrowly that Tyson failed to pay them for time spent
in 2011 and 2013, seemingly raised the bar for tions of anticompetitive conduct by Comcast such that a congruence between the plaintiffs’ “donning and dofing” protective equipment.
establishing predominance. Comcast v. Beh-
in the Philadelphia area and of common anti-
theory of damages and their proposed proof
Because Tyson had not kept » Page S10

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