According to Justice Thomas, who (along with Justice Alito) dissented in Tyson Foods v. Bouaphakeo, 555 U.S. ___ (2016), the answer is ‘yes’:
The majority begins by redefining the predominance standard. According to the majority, if some “‘central issues’” present common questions, “ ‘the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.’ ” Ante, at 9 (quoting, 7AA C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure §1778, pp. 123–124 (3d ed. 2005; footnotes omitted)). We recently—and correctly—held the opposite. In Comcast, we deemed the lack of a common methodology for proving damages fatal to predominance because “[q]uestions of individual damage calculations will inevitably overwhelm questions common to the class.” 569 U. S., at ___ (slip op., at 7).
Slip op. at 8-9 (Thomas, J., dissenting). To drive this point home, Justice Thomas observes in a footnote that “[t]he majority relies on the same treatise citations that the Comcast dissent invoked to argue that individualized damages calculations should never defeat predominance. 569 U. S., at ___–___ (slip op., at 3–4) (opinion of Breyer, J.).” Id. at 9 n. 2.
Perhaps it is Justice Thomas who is mistaken about what Comcast held. A close reading of Comcast suggests it was not the watershed decision Justice Thomas makes it out to be. In fact, most lower courts have not read Comcast as “deem[ing] the lack of a common methodology for proving damages fatal to predominance”–a point my law partner Dave and I have made on this blog.
Today’s ruling in Tyson confirms the correctness of those lower court rulings and lays to rest any argument that damages must be shown through class-wide evidence for common liability issues to predominate.