Yesterday, we wrote about the ruling in Moore v. Ulta Salon, Cosmetics & Fragrance, in which Central District of California Judge Fernando M. Olguin concluded (correctly) that “the [Comcast] Court did not hold that damages must be shown through classwide evidence for common liability issues to predominate.” (emphasis added). Judge Olguin’s conclusion jives with several post-Comcast rulings by the Ninth Circuit.
Today, we note that another court in the same district reached the opposite conclusion, stating that “to certify a class under Federal Rule of Civil Procedure 23(b)(3)” plaintiffs must show that “damages are capable of measurement on a classwide basis.” In re NJOY, Inc. Consumer Class Action Litig., 2016 WL 787415 (C.D. Cal. Feb. 2, 2016). The continuing divergent results on this issue will likely require the Ninth Circuit to take up the issue yet again.
In the Seventh Circuit, on the other hand, there appears to be less uncertainty about interpreting Comcast. Judge Barabara B. Crabb of the Western District of Wisconsin issued a ruling quite similar in tone to Judge Olguin’s. See Eggen v. Westconsin Credit Union, 2016 WL 797614 (W.D. Wisc. Feb. 26, 2016). Like Judge Olguin, Judge Crabb was compelled to note that the defendant had ignored circuit court precedent on Comcast, instead arguing that certification was inappropriate due to individualized damages issues. Judge Crabb held:
The Court of Appeals for the Seventh Circuit has rejected the view that Comcast requires the plaintiffs to show that their claimed damages are not disparate. Rather, Comcast holds that a damages suit cannot be certified to proceed as a class action unless the damages sought are the result of the class-wide injury that the suit alleges. Again, that test is satisfied in this case because plaintiffs allege that all class members suffered the same injury, public disclosure of their personal information. … In the unlikely event that damages determinations become too difficult to manage, the class may be decertified after determining liability to allow the plaintiffs to pursue individual damage claims.
(quotations omitted and emphasis added).