Antitrust and Consumer Protection
Competition: 2016, Vol 25, No. 2
Content
- Biometric Privacy Litigation: Is Unique Personally Identifying Information Obtained From a Photograph Biometric Information?
- California Online Privacy Laws: the Battle For Personal Data
- Chair's Column
- "Clear and Conspicuous" Disclosures Between Celebrity Endorsers and Advertisers On Social Media Websites
- Comments On Proposed Update On Intellectual Property Licensing Guidelines
- Dispatches From the West Coast: Federalism, Competition, and Comments On the United States' Proposed Update To the Antitrust Guidelines For Licensing Intellectual Property
- Editor's Column
- Exceptions To the Rule: Considering the Impact of Non-practicing Entities and Cooperative Regulatory Processes In the Update To the Antitrust Guidelines For the Licensing of Intellectual Property
- Ftc Privacy and Data Security Enforcement and Guidance Under Section 5
- Home Run or Strikeout? the Unsettled Relationship Between the Sports Broadcasting Act and Cable Programming
- Masthead
- The Rapidly Changing Landscape of Private Global Antitrust Litigation: Increasingly Serious Implications For U.S. Practitioners
- Never Say Never: the Ninth Circuit's Misguided Categorical Approach To Individual Damages Questions When Assessing Rule 23(B)(3) Predominance
NEVER SAY NEVER: THE NINTH CIRCUIT’S MISGUIDED CATEGORICAL APPROACH TO INDIVIDUAL DAMAGES QUESTIONS WHEN ASSESSING RULE 23(B)(3) PREDOMINANCE
By John M. Landry1
I. INTRODUCTION
To qualify for class treatment under Federal Rule of Civil Procedure 23(b)(3), damages (or restitution) claims must present common questions that "predominate over any questions affecting only individual class members."2 Yet, calculating each class member’s damages inherently entails some degree of individual inquiry and proof. As a result, what role individual damages questions should properly play in a predominance inquiry is a source of controversy.
When questions concerning liability are entirely common, however, various courts of appeals accept that individual damages questions do not predominate. But these courts express this rule as a general—not categorical—one, recognizing that, in certain instances, individual damages questions can reach a level of magnitude and complexity sufficient to overwhelm common questions.