Antitrust and Unfair Competition Law

Competition: 2016, Vol 25, No. 2


By John M. Landry1


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 generalā€”not categoricalā€”one, recognizing that, in certain instances, individual damages questions can reach a level of magnitude and complexity sufficient to overwhelm common questions.

Like other circuit courts, the Ninth Circuit initially adopted what appeared to be the general rule. In Blackie v. Barrack,3 a Ninth Circuit panel stated that the "amount of damages is invariably an individual question and does not defeat class action treatment."4 The panel then went on to consider the nature of the damages proof in that case. It supported its affirmance of the district court’s class certification order by observing that computing damages for each class member would be "virtually a mechanical task."5

But, in a series of recent panel decisions, the Ninth Circuit has now unmistakably rejected any rule other than an absolute, categorical one: individual damages questions alone never, ever defeat class certification.6 Hence, once a district court perceives liability as posing entirely common questions, its predominance inquiry ends there, and individual damages questions, whatever their nature or complexity, become instantly irrelevant. Although these panel opinions purport to adhere to earlier circuit precedent, their strict, categorical approach arguably constitutes a change in Ninth Circuit law. Certainly, if it is a change, it is a nontrivial one because when applied the rule truncates the district court’s Rule 23(b)(3) predominance analysis. And its application is likely to be frequent given, for example, the number of California false advertising cases litigated under California’s Unfair Competition Law ("UCL") in the Ninth Circuit, cases the Ninth Circuit insists present no individualized liability determinations and so would automatically qualify for categorical treatment.

The Ninth Circuit’s "categorical rule" that never permits individual damages questions alone to defeat class certification is a misstep. First, the rule’s seeming departure from previous panel precedent suggests a violation of intra-circuit stare decisis. Second, the rule conflicts with the U.S. Supreme Court’s decision in Comcast Corp. v. Behrend,7 which rests on the notion that individual damages may overwhelm common liability questions and defeat class certification. Indeed, the Ninth Circuit’s own reading of Comcast, i.e., that a plaintiff show its damages method matches the liability case, makes no sense as a Rule 23 predominance requirement when applied in cases where the categorical rule also applies because the categorical rule, by definition, would obviate the need for any further predominance showing. Lastly, the Ninth Circuit’s categorical approach, by ignoring damages issues altogether, effectively certifies issue-only, liability classes under Federal Rule of Civil Procedure 23(c)(4) without addressing whether a liability-only class actually advances the lawsuit’s disposition.

This article discusses Rule 23(b)(3)’s predominance requirement, the general rule on the effect of individual damages questions on predominance, the Ninth Circuit’s initial approach, and the genesis of the Ninth Circuit’s present categorical rule. It then explains why the categorical rule should be abandoned.


Plaintiffs purporting to assert monetary claims (damages or restitution) on behalf of a consumer or other purchaser class in federal court must proceed via Rule 23(b)(3). Unlike traditional class actions authorized under Rule 23(b)(1) or (b)(2), in which claimants tap the same limited fund or secure indivisible injunctive relief, Rule 23(b)(3) aggregates claims seeking divisible, individualized amounts of money.8 The justification for this is judicial economy, provided judicial economy is even achievable due to some cohesiveness present. The test for cohesiveness finds expression in Rule 23(b)(3)’s predominance element which asks whether "questions of law or fact common to the class predominate over any questions affecting only individual members."9 Only if the answer is yes can aggregation yield the desired efficiencies.

The predominance test is hard to pin down as the term "predominate" is imprecise. The Supreme Court’s recent statement that common questions predominate when they are "more prevalent or important," lends no greater precision.10 Moreover, although Rule 23(b)(3) itself makes no distinction between questions going to liability versus those going to damages, courts tend to treat liability-related questions as more important and thus more determinative of predominance. This is observable, for example, in antitrust cases where predominance largely turns on whether there is class-wide proof of "fact of injury" (or impact), an element of the claim itself.11 Hence, in cases where liability questions will, to some degree, vary by individual class member, common-question predominance is less likely. In such cases, individual damages questions are relevant in determining if individual questions (either liability or damages) predominate.12 But when liability questions are entirely common, the question is whether individual damages questions alone may predominate.


Awarding damages to class members invariably requires some degree of individualized proof. As Professor Rubenstein points out, "[i]n most any damage class action, each class member is likely to be entitled to a specific amount of damages pertinent to the harm she suffered."13 He offers securities class actions as an example where "each shareholder’s damage will depend on the quantity of shares that she owned." Indeed, from the outset, it was recognized that the mere need for individual damages determinations should not automatically bar Rule 23(b)(3) class certification. The advisory committee to Rule 23 used this example:

The court is required to find . . . that the questions common to the class predominate over the questions affecting individual members . . . . In this view, a fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liability is found, for separate determination of the damages suffered by individuals within the class.14

As the advisory committee’s note indicates, individual damages questions mayā€”or may notā€”predominate over common liability questions. But, when liability questions are entirely common, a rule has developed. Simply stated, individual damages questions do not preclude class certification. This rule, however, is widely understood to be only a general rule, not a categorical one, and various circuit courts have expressed it in distinctly non-categorical terms.15

The First Circuit, in Smilow v. Southwest Bell Mobile Systems, Inc.,16 after surveying the various circuits, observed: "Where, as here, common questions predominate regarding liability, the courts generally find the predominance requirement to be satisfied even if individual damages remain."17 Likewise, the leading treatise on class actions summarizes the law as follows: "individual damage calculations generally do not defeat a finding that common issues predominate."18 Some courts of appeals state this same rule by recognizing that individual damages questions may, even if only infrequently, predominate over common liability questions.19 Cases from the Third, Fourth, Fifth, and Eleventh Circuits, provide actual examples of individual damages questions alone predominating over common liability questions.20

Several observations are possible from the case law. Individual damages questions are most likely to predominate when calculations are particularly non-formulaic or "labyrinthine."21 Such calculations may defeat predominance unless a proposed class-wide methodā€”some database, formula or expert’s modelā€”overcomes the complexity or dissimilitude, rendering the computations a less individualized or more mechanical task. For example, the Fifth Circuit has recognized that "[c]lass treatment . . . may not be suitable where the calculation of damages is not susceptible to a mathematical or formulaic calculation, or where the formula by which the parties propose to calculate individual damages is clearly inadequate."22 Absent a satisfactory class-wide method, the concern is that individual damages will require "separate mini-trials" and thereby overwhelm any common questions.

Although individual damages decisions alone rarely defeat class certification, the general, non-categorical nature of the rule remains and shapes the scope of a district court’s Rule 23(b)(3) inquiry. Hence, even when liability issues are common, a general, non-categorical approach has important practical effects. District courts must still consider all potential individual issues, whether liability or damages, and understand the nature of the damages proof. Plaintiffs, even when a district court is likely to view liability issues as entirely common, must disclose how they intend to prove each class member’s damages, frequently by submitting an expert’s proposed formula or model to advance a more simplified, class-wide approach.


The Ninth Circuit’s approach to individual damages questions appears to have begun with a non-categorical rule that, like that articulated in other circuits, did not invariably find the requisite predominance whenever liability presented only common questions.

A. Blackie v. Barrack

The Ninth Circuit first addressed the effect, if any, the need for individual damages calculations might have on Rule 23(b)(3)’s predominance element in Blackie, a securities fraud case. In affirming the district court’s class certification order, the panel endorsed a fraud-on-the-market presumption of individual reliance that allowed for a class-wide liability determination.23 Defendants, however, contended that individual damages amounts would still vary by class member and so predominate over the common questions. The panel cited to several district court decisions certifying securities fraud cases as Rule 23(b)(3) class actions and stated: "The amount of damages is invariably an individual question and does not defeat class action treatment."24 The panel then found that, "should the class prevail, the amount of price inflation during the period can be charted and the process of computing individual damages will be virtually a mechanical task."25 Hence, the court looked but saw no evidence suggesting that computing individual damages would entail more than the normal level of complexity typically encountered in securities fraud cases, given the availability of price-inflation studies.

Blackie, by all indications, established only a general rule that individual damages questions do not defeat class certification. It did not state that individual damages questions could never predominate over common liability questions. In stressing the particular mechanical nature of the securities-fraud damages computations at issue, Blackie signaled that the outcome might have been different had those computations presented more complexity.

Two years after Blackie, the Ninth Circuit again spoke to the issue of individual damages in another securities fraud case and, relying on Blackie, upheld the district court’s class certification order "because these damage issues do not, as a rule, defeat class certification in cases such as these."26 Tellingly, other courts of appeal read Blackie as positing only a general rule, one that leaves open the possibility that damages questions might predominate in certain instances.27

B. Yokoyama v. Midland National Life Insurance Co.

Thirty-five years after Blackie, a Ninth Circuit panel applied Blackie to decide whether individual damages questions defeated class certification in a consumer fraud case. In Yokoyama v. Midland National Life Insurance Co.,28 plaintiffs sued an insurance company claiming it deceptively sold annuity products in violation of Hawaii law. The district court denied plaintiffs’ motion to certify a Rule 23(b)(3) class because it believed Hawaii law required proof of each purchaser’s subjective reliance. It also ruled that damages would involve "highly individualized and fact specific determinations," explaining:

the amount of damage sustained by a single class member would depend on factors such as the financial circumstances and objectives of each class member; their ages; the [annuity] selected; any changes in the fixed interest rate for that particular [annuity]; the performance of the selected index; any changes in the index margin for that particular [annuity]; any cap on the indexed interest; the length of the surrender periods; whether the individual had undertaken or wanted to undertake an early withdrawal of funds; any benefit the individual policy holder derived from the form of the annuity itself, including the tax-deferral of credited interest; and the actual rate of return on the [annuity].29

The panel reversed because it found the district court plainly erred in applying Hawaii law.30 The statute imposed an objective not subjective reliance test, obviating the need to examine the circumstances of each annuity’s purchase. The panel surmised that the same error likely affected the district court’s views on damages, and so doubted that damages would involve anything close to the complex, hyper-individualized analyses the district court had feared.31 Although individual damages calculations of some sort would need to be made, the panel cited Blackie and stated: "In this Circuit, . . . damage calculations alone cannot defeat certification."32

Hence, Yokoyama purported to follow Blackie and articulated the rule in a manner similar to Blackie, expressing no departure from Blackie. Further, Yokoyama undoubtedly viewed Blackie as embracing a non-categorical rule similar to that expressed in Smilow v. Southwest Bell Mobile Systems, Inc.33 because Yokoyama specifically cited Smilow as "in accord" with Blackie.34 As noted above, the First Circuit in Smilow recognized a non-categorical approach, observing merely that courts "have usually certified Rule 23(b) (3) classes" when common issues otherwise predominated.35 Smilow did not hold that individual damages questions can never predominate over common liability questions, and that has never been the rule in the First Circuit. Hence, as of Yokoyama, the Ninth Circuit, by most indications, took the same general, non-categorical approach to individualized damages questions as other circuits.


In a series of recent panel decisions, the Ninth Circuit’s approach to individual damages questions under Rule 23(b)(3) seems to have suddenly become absolute.

A. Leyva v. Medline Industries, Inc.

Any non-categorical approach in the Ninth Circuit abruptly ended beginning with Leyva v. Medline Indus. Inc.,36 a wage-and-hour case. There, the district court denied class certification on the ground that issues regarding "the amount of pay owed" predominated over common liability questions. A Ninth Circuit panel reversed, holding that "damage calculations alone cannot defeat certification."37 It added: "In deciding otherwise, the district court . . . appl[ied] the wrong legal standard."38 Later in the opinion, the panel noted that defendant’s own time-keeping database would "feasibly and efficiently" permit accurate damages calculations once common liability questions were adjudicated.39 But it purported to note this to show that damages in the case would measure only the lost wages resulting from the unlawful practicesā€”a Rule 23(b)(3) requirement that Leyva believed Comcast now imposed, i.e., that damages stem from only those actions that created the liability.

The Leyva panel purported to rely on Yokoyama despite the fact that the rule Leyva applied was categorical. Indeed, under Leyva, any district court ruling that individual damages predominate over common liability questions constitutes instant error via the district court’s application of"the wrong legal standard"40 Yet, Yokoyama did not necessarily suggest a categorical application, particularly as it cited Smilow with approval. Accordingly, a strict, categorical approach is not one that the Ninth Circuit necessarily embraced before Leyva.41

B. Pulaski & Middleman, LLC v. Google, Inc.

Two years later, in Pulaski & Middleman, LLC v. Google, Inc. ("Pulaski"),42 a Ninth Circuit panel, purporting to apply Yokoyama, confirmed that individualized damages (or, here, restitution) calculations can never alone defeat Rule 23(b)(3)’s predominance element. Plaintiffs were internet advertisers who had purchased Google’s ad-placement service known as AdWords. They alleged Google falsely touted the service, causing plaintiffs to unwittingly pay for advertising placed on less valuable "parked domain and/or error page websites."43 Plaintiffs alleged they would not have paid for this advertising (or not paid as much) had they known the truth and sought restitution.44

The district court denied plaintiffs’ class certification motion on the ground that common questions did not predominate. Among other things, it found that Google’s use of a non-uniform auction process to sell, price and place ads would cause the calculation of each class members restitution award to require an exceedingly high degree of individualized analysis and proof.45 Moreover, none of plaintiffs’ proposed methods for measuring restitution, even if valid, adequately addressed and reduced the enormous complexity of the task.46 The district court, interpreting Yokoyama‘s rule (i.e., damage calculations alone do not defeat class certification) as non-categorical, held that it did not apply in this instance because of the intensely individualized nature of the calculations and the absence of any proposed method to render them sufficiently formulaic.47

The Ninth Circuit panel reversed. Without discussion, it treated Yokoyama as espousing a categorical rule, one applicable in all cases regardless of the degree of individualized computations required.48 Thus, it found that the district court erred in concluding the rule in Yokoyama did not apply. The panel also rejected Google’s argument that the Supreme Court’s decision in Comcast placed in doubt the use of the categorical rule. The panel, as the panel in Leyva had done previously, treated Comcast as requiring only that any proposed class damages method align with the case’s theory of liability, and declared that "Yokoyama [which pre-dated Comcast] remains the law of this court, even after Comcast."49

C. Vaquero v. Ashley Furniture Industries, Inc.

Most recently, in Vaquero v. Ashley Furniture Indus., Inc.,50 a putative wage-and-hour-class action, a Ninth Circuit panel upheld a district court’s class certification order despite the need for individualized damages calculations. It cited Blackie, Yokoyama, Leyva, and Pulaski as all uniformly adhering to the categorical rule that the presence of individual damages cannot, by itself, defeat class certification under Rule 23(b)(3).51


The categorical rule identified above has arguably emerged in the Ninth Circuit just recently. Moreover, as also demonstrated above, the rule appears to depart from the rule articulated and applied in Blackie and in Yokoyamaā€”a rule which did not necessarily foreclose the possibility that individual damages questions may, in certain circumstances, overwhelm common liability issues.

If the categorical rule is new, then Leyva, Pulaski and Vaquero’s portrayal of Blackie and Yokoyama is revisionist. The panels in those more recent cases simply imprinted on to Blackie and Yokoyama a categorical approach that was not there.52 This is problematic. One circuit panel cannot alter the rule of another. Changes in intra-circuit precedent require en banc reviewā€”the normal mechanism by which intra-circuit precedent evolves.53

The predominance element at issue here deserved a more-studied, less-revisionist assessment of Ninth Circuit precedents. The categorical rule, once triggered, eliminates any need to examine how a plaintiff intends to prove individualized damages, and so truncates the scope of the district court’s Rule 23(b)(3) examination. Any change in law that, as here, reduces the requisite showing of predominance is significant. Nor will it necessarily be difficult or rare for putative consumer class plaintiffs to trigger the categorical rule. For example, Pulaski itself, to pave the way for its application of the categorical rule, noted that claims under California’s UCL and similar statutes do not require individualized proof to establish liability.54 Hence, simply by alleging certain claims, a plaintiff can invoke the categorical rule and satisfy Rule 23 (b)(3) predominance. Given the issue’s importance and the uncertain circuit precedent surrounding it, the issue, when next addressed by a Ninth Circuit panel, would be appropriate for subsequent en banc review.


The categorical rule contradicts the key, underlying premise on which the Supreme Court’s majority opinion in Comcast rests. The Comcast facts are well known. There, cable subscribers brought antitrust claims based on four competition-injury theories and, to support class certification, submitted a class-wide damages model measuring their aggregate effect.55 The district court granted class certification even though only one of the four theories could be adjudicated as a class action and the proposed damages model failed to isolate and measure just the harm from that one theory, and the court of appeals affirmed.56 The Supreme Court, however, reversed.57

On its surface, Comcast held that the plaintiffs’ damages model in that case did not isolate and measure the harm caused by the plaintiffs’ only operative liability theory, and so was invalid.58 But this narrow ruling was fatal to class certification only because the parties conceded that individual damages issues would predominate absent a damages model that could serve as a class-wide method of proof.59 It is impossible to imagine the Court undertaking its analysis if the main underlying and conceded premiseā€”that individual damages issues alone may predominateā€”had no basis in fact or law. Indeed, the majority opinion treated the parties’ concession as well founded, noting that, even if plaintiffs’ damages model had been limited to a single injury theory, it would have still failed to show predominance if it could not adequately account for and overcome significant geographic variations in the damages proof.60

Interestingly, the minority opinion in Comcast took no issue with the central premise that individual damages issues alone could predominate. Rather, it was concerned that the majority opinion might be read to suggest that a class-wide method of proving damages was always necessary for class certification.61 The Ninth Circuit’s categorical rule, perhaps in reaction to Comcast, goes too far the other way.62

The categorical rule also conflicts with the Ninth Circuit’s own reading of Comcast. According to Leyva, Comcast requires that plaintiffs "show that their damages stemmed from the defendant’s action creating the liability."63 Yet, the Ninth Circuit’s categorical rule, when it is triggered, terminates the predominance inquiry at that point, rendering individual damages questions (along with any proposed method, formula or model for showing individual damages on a class-wide basis) irrelevant. This means that, when the rule applies, a plaintiff is not required to do anything further on the predominance issue. And if a plaintiff (for whatever reason) still chooses to disclose her damages method at the class certification stage, Ninth Circuit courts have no basis to scrutinize the method under Comcast as Comcast was entirely grounded on the predominance element of Rule 23(b)(3).64 Thus, for example, in Pulaski, after applying the categorical rule to find that common questions predominated, the panel had no basis under Comcast to then assess, as it did, plaintiffs’ proposed class-wide restitution method to determine if it aligned with plaintiffs’ liability cases. Further analysis under Comcast was superfluous.


In the end, the Ninth Circuit, by adopting a categorical rule that applies even in cases where individualized damages issues will breakdown into "mini-trials," is, without explicitly saying so, advancing the concept of a liability-only class akin to an "issues class" permitted under Rule 23(c)(4), which authorizes "a class action with respect to particular issues."65 The Ninth Circuit recently came close to admitting as much in Jimenez v. Allstate Insurance Co. The panel in Jimenez relied on Leyva to reject an argument that class certification violated defendant’s due process right to assert individualized affirmative defenses at trial.66 It viewed Leyva as authorizing the bifurcation of liability and damages. It also cited "as consistent with . . . Leyva", cases from other circuits that have certified liability-only classes.67

A liability-only class leaves damages determinations for separate non-class proceedings. But a district court’s sua sponte use of a liability-only class is controversial as it can be used to "manufacture predominance" where it might otherwise not exist.68 Ordinarily, a district court also would need to conclude that the proposed issue-class "materially advanced the disposition of the litigation as a whole."69 This is something the courts in Leyva, Pulaski and Vaquero did not address.

The Ninth Circuit’s official position on the use of issue-only classes under Rule 23(c)(4) is uncertain.70 But, by its categorical rule, the Ninth Circuit is essentially making liability-only classes a default option to allow district courts to certify Rule 23(b)(3) classes without regard to how damages will be decided. Wherever the Ninth Circuit stands on liability-only classes, the categorical approach is an abridgment of Rule 23(b) (3)’s predominance test.


The categorical rule that individual damages issues alone never defeat class certification likely reflects the Ninth Circuit’s departure from earlier circuit precedent and conflicts with Comcast. The rule also allows de facto use of liability-only classes to ensure common-question predominance that might not otherwise exist. The rule should be discarded for the general rule that individual damages issues may alone defeat class certification.



1. John M. Landry is a special counsel in the Los Angeles office of Shepard Mullin Richter & Hampton LLP. A member of the firm’s Business Trial Practice Group, Mr. Landry practices in a broad spectrum of subject areas with emphasis on class action defense, antitrust, and securities litigation. This article reflects his views alone.

2. Fed. R. Civ. P. 23(b)(3).

3. Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975).

4. Id. at 905.

5. Id.

6. See, e.g., Pulaski & Middleman, LLC v. Google Inc., 802 F.3d 979, 987-88 (9th Cir. 2015), cert. denied, 136 S. Ct. 2410 (2016).

7. 133 S. Ct. 1426 (2013).

8. As the U.S. Supreme Court has confirmed, "individualized monetary claims belong in Rule 23(b)(3)." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2558 (2011).

9. Fed. R. Civ. P. 23(b)(3). In addition, subdivision (b)(3) requires that class treatment be superior to other available adjudication methods.

10. See Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016). The Ninth Circuit has used similar language. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (stating predominance exists "[w]hen common questions present a significant aspect of the case") (internal quotation marks omitted).

11. See 8 Julian O. von Kalinowski, et al., Antitrust Laws and Trade Regulation § 166.03[3][a] [i] (2d ed. 1997).

12. See Klay v. Humana, Inc., 382 F.3d 1241, 1260 (11th Cir. 2004) ("It is primarily when . . . significant individualized questions going to liability exist that the need for individualized assessments of damages is enough to preclude 23(b)(3) certification.").

13. 2 William B. Rubenstein, Newberg on Class Actions § 4.54 (jth ed. 2015).

14. Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment (emphasis added).

15. See, e.g., In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 139 (2d Cir. 2001) ("Common issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues.") (emphasis added); Tardiff v. Knox County, 365 F.3d 1, 6 (1st Cir. 2004) (stating "the need for individualized damage decisions does not ordinarily defeat predominance where there are still disputed common issues as to liability") (emphasis added).

16. 323 F.3d 32 (1st Cir. 2003).

17. Id. at 40.

18. Rubenstein, supra note 11.

19. See Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213, 1220 (10th Cir. 2013) (stating "although individualized monetary claims belong in Rule 23(b)(3), predominance may be destroyed if individualized [damages] issues will overwhelm those questions common to the class") (internal citations and quotation marks omitted); Klay v. Humana, Inc., 382 F.3d at 1260 ("Of course, there are also extreme cases in which computation of each individual’s damages will be so complex, fact-specific, and difficult that the burden on the court system would be simply intolerable.").

20. See Chiang v. Veneman, 385 F.3d 256, 273 (3d Cir. 2004) (denying class certification and stating "there are cases where the question of damages is so central that it can, in some sense, overtake the question of liability"), abrogated on other grounds by In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 318 n.18 (3d Cir. 2008); Lienhart v. Dryvit Systems, Inc., 255 F.3d 138, 149 (4th Cir. 2001) (finding no common questions predominated where damages determinations would require the "functional equivalent of a full-blown trial on damages causation for each putative class member"); Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294, 303-04 (5th Cir. 2003) (affirming denial of certification because "any adequate estimation of actual damages" would require "individualized inquiries" overwhelming common issue); Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1308 (11th Cir. 2012) (affirming district court’s ruling that "variation in individual damages render[ed] the class unsuitable for certification on predominance grounds").

21. See Comcast, 133 S. Ct. at 1431 (noting that court of appeals below had required that plaintiffs’ model "assure [it]" that damages "will not require labyrinthine individual calculations.").

22. Bell Atl. , 339 F.3d at 307.

23. Blackie, 524 F.2d at 906.

24. Id. at 905.

25. Id.

26. Arthur Young & Co. v. U.S. Dist. Ct., 549 F.2d 686, 696 (9th Cir. 1977) (emphasis added).

27. See, e.g., Windham v. American Brands, Inc., 565 F.2d 59, 67-68 (4th Cir. 1977).

28. 594 F.3d 1087 (9th Cir. 2010).

29. Id. at 1093-94.

30. Id. at 1092.

31. Id. at 1094.

32. Id.

33. 323 F.3d 32, 40 (1st Cir. 2003).

34. Yokoyama, 594 F.3d at 1089.

35. Smilow, 323 F.3d at 39 (emphasis added).

36. 716 F.3d 510 (9th Cir. 2013).

37. Id. at 513 (quoting Yokoyama, 594 F.3d at 1074).

38. Id. at 514.

39. Id.

40. Id.

41. Shortly after Leyva, in Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014), an appeal challenging class certification on due process grounds, a Ninth Circuit panel identified Leyva as stating a rule consistent with that in Yokoyama. See 765 F.3d at 1167.

42. 802 F.3d 979 (9th Cir. 2015).

43. Id. at 983.

44. In re Google Adwords Litig., 2012 U.S. Dist. LEXIS 1216, at *26 (N.D. Cal. Jan. 5, 2012).

45. Id. at *46.

46. Id. at *49.

47. Id. at *46 n.13.

48. Pulaski, 802 F.3d at 987-88.

49. Id. at 988.

50. 824 F.3d 1150 (9th Cir. 2016).

51. Id. at 1155.

52. See, e.g., Pulaski, 802 F.3d at 988.

53. See Hart v. Massanari, 266 F.3d 1155, 1171-72 (9th Cir. 2001).

54. Pulaski, 802 F.2d at 986.

55. Comcast, 133 S. Ct. at 1431.

56. Id.

57. Id. at 1434-35.

58. Id. at 1435.

59. Id. at 1430.

60. Id. at 1435 n.6.

61. See id. at 1436.

62. Just this last Term, the Supreme Court, in discussing Rule 23(b)(3) predominance, used non-categorical language from a treatise to describe situations when common questions may predominate despite the need to adjudicate "other important matters" separately, such as damages. See Tyson Foods, 136 S. Ct. at 1045.

63. Leyva, 716 F.3d at 514.

64. If the Comcast-based requirement that "damages stem[ ] from the defendant’s action creating the liability" only applies if a plaintiff chooses to disclose a damages model at the Rule 23 stage, then the requirement is an incentive for non-disclosure.

65. Fed. R. Civ. P. 23(c)(4).

66. See Jimenez, 765 F.3d at 1168.

67. See id. at 1167-68 (citing among other cases In re Whirlpool Corp. Frontloading Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013) and Butler v. Sears, Roebuck and Co., 727 F.3d 796 (7th Cir. 2013)).

68. Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996).

69. Manual for Complex Litigation (Fourth) § 21.24 (2004).

70. See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996) (suggesting in dicta the possibility of certifying an issue-only class under Rule 23(c)(4) when predominance element might not permit class certification of the entire action).

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