AAI Urges Supreme Court to Tread Carefully in Ruling on Rule 23 Predominance Requirement in Antitrust Class Actions (Comcast v. Behrend)

The AAI filed an amicus brief in the Supreme Court urging the Court in Comcast v. Behrend not to disturb settled doctrine regarding an antitrust class action plaintiff’s burden in proving the amount of its damages, in contrast to the fact of its damages, in the course of ruling on the evidentiary showing necessary to satisfy the predominance requirement of Rule 23(b)(3) of the Federal Rules of Civil Procedure. In particular, AAI warned the Court to take care that what a plaintiff must show does not become inadvertently bound up in how a plaintiff must show it if the Court is to issue a categorical ruling on what is necessary to demonstrate that a case is “susceptible to awarding damages on a class-wide basis.” AAI also wrote to provide a balanced policy backdrop for the Court in assessing the utility and sensibility of altering traditional class certification standards in the context of antitrust cases.

The brief was written by University of San Francisco Law Professor and AAI Senior Fellow Josh Davis, with assistance from AAI Senior Counsel Randy Stutz and AAI Special Counsel Sandeep Vaheesan. It was joined by the American Independent Business Alliance (AMIBA), a national nonprofit organization that supports approximately 25,000 independent locally-owned businesses through a network of more than 80 affiliated community organizations.