In previous posts, we’ve noted that some district courts have continued to grapple with Comcast v. Behrend, even though the Ninth Circuit has repeatedly clarified that Rule 23(b)(3) does not require classwide proof of damage. Given the inconsistent district court holdings, it is not surprising that defendants sometimes avoid mentioning the Ninth Circuit’s holdings. But in a recent opinion, Judge Fernando M. Olguin dealt with the failure harshly, writing that defense counsel had “misstate[d] the standard set forth in Comcast.” See Moore v. Ulta Salon, Cosmetics & Fragrance, 311 F.R.D. 590 (C.D. Cal. 2015).
In Moore, defendant argued that regardless of whether common questions predominate in the liability context, plaintiff cannot satisfy the predominance requirement unless she also “show[s] that damages can be proven on a class-wide basis.” Judge Olguin began by noting that the argument hinged on a “failure to address applicable Ninth Circuit precedent.” Id. at 607. He continued:
defendant misstates the standard set forth in Comcast. … The [Comcast] Court did not hold that damages must be shown through classwide evidence for common liability issues to predominate.… Here, if the class prevails on its liability claims … only then will the court determine how many hours of pay each plaintiff is entitled to, how many meal and/or rest breaks each plaintiff was denied, and the resulting penalties that defendant must pay.
Id. at 621 (emphasis added) (citing Leyva v. Medline Indus. Inc., 716 F.3d 510, 513 (9th Cir. 2013)).
Finally, the court emphasized that a precise damages plan could wait until later in the litigation:
Finally, plaintiff need not know precisely how she will prove damages at this time. If calculation of individualized damages is complex, the court has numerous efficient means to resolve such issues, including questionnaires, surveys, representative testimony, the use of a special master and other aggregate analysis.