13-3070-cv Roach v. T.L. Cannon Corp.
1 In the 2 United States Court of Appeals 3 For the Second Circuit 4 5 August Term, 2014 6 No. 13-3070-cv
7 MATTHEW ROACH, MELISSA LONGO, GARRETT TICHEN, 8 CHRISTINA APPLE, 9 Plaintiffs-Appellants,
10 v.
11 T.L. CANNON CORP., d/b/a Applebees, T.L. CANNON MANAGEMENT 12 CORP., TLC WEST, LLC, TLC CENTRAL, LLC, TLC UTICA, LLC, TLC 13 EAST, LLC, TLC NORTH, LLC, DAVID A. STEIN, individually and as 14 Owner and Chairman of T.L. Cannon Corp. and as Director and 15 Chairman of T.L. Cannon Management Corp., MATTHEW J. 16 FAIRBARN, individually and as Owner and President of T.L. Cannon 17 Corp. and as Director and Chief Executive Officer of T.L. Cannon 18 Management Corp., JOHN A. PERRY, individually and as Vice- 19 President and Director of Operations of T.L. Cannon Corp. and as 20 President of T.L. Cannon Management Corp., 21 Defendants-Appellees. 22
23 Appeal from the United States District Court 24 for the Northern District of New York. 25 No. 10-cv-591 ― Thomas J. McAvoy, Judge. 26 27 ROACH V. T.L. CANNON CORP.
1 ARGUED: SEPTEMBER 8, 2014 2 DECIDED: FEBRUARY 10, 2015 3 4 5 Before: JACOBS and DRONEY, Circuit Judges; KAPLAN, District Judge.* 1 6 7 8 Appeal from an order of the United States District Court for 9 the Northern District of New York (McAvoy, Judge) denying class 10 certification under Rule 23(b)(3) of the Federal Rules of Civil 11 Procedure. We hold that Comcast Corp. v. Behrend, 133 S. Ct. 1426 12 (2013), does not require that damages be measurable on a classwide 13 basis for certification under Rule 23(b)(3). Since the district court 14 denied class certification solely because it believed damages were 15 not measurable on a classwide basis, we VACATE and REMAND. 16 17 18 SCOTT MICHELMAN, Public Citizen Litigation 19 Group, Washington, DC, (J. Nelson Thomas, 20 Michael J. Lingle, and Annette Gifford, Thomas & 21 Solomon, LLP, Rochester, NY, Frank S. Gattuso 22 and‖ Dennis‖ G.‖ O’Hara,‖ O’Hara,‖ O’Connell & 23 Ciotoli, Fayetteville, NY, Michael T. Kirkpatrick, 24 Public Citizen Litigation Group, Washington, DC, 25 on the brief), for Plaintiffs-Appellants.
26 CRAIG R. BENSON, Littler Mendelson, P.C. 27 (Andrew P. Marks, Elena Paraskevas-Thadani, 28 and Erin W. Smith, on the brief), New York, NY, 29 for Defendants-Appellees.
* The Honorable Lewis A. Kaplan, United States District Judge for the Southern District of New York, sitting by designation.
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1 Jamie G. Sypulski, Law Office of Jamie Golden 2 Sypulski, and Douglas M. Werman, Werman Law 3 Office, P.C., Chicago, IL, for the National 4 Employment Lawyers Association as amicus curiae 5 in support of Plaintiffs-Appellants.
6 7 8 DRONEY, Circuit Judge:
9 This appeal presents the question of whether the Supreme
10 Court’s‖ decision‖ in‖ Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013),
11 overruled the law of this Circuit that class certification pursuant to
12 Rule 23(b)(3) of the Federal Rules of Civil Procedure cannot be
13 denied merely because damages have to be ascertained on an
14 individual basis. The United States District Court for the Northern
15 District of New York (McAvoy, J.) concluded that Comcast permits
16 certification under Rule 23(b)(3) only when damages are measurable
17 on a classwide basis, and denied Plaintiffs-Appellants’‖ motion‖ for‖
18 class certification.
19 We hold that Comcast does not mandate that certification
20 pursuant to Rule 23(b)(3) requires a finding that damages are
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1 capable of measurement on a classwide basis. Accordingly, we
2 VACATE the order of the district court denying class certification,
3 and REMAND.
4 BACKGROUND
5 Plaintiffs-Appellants (‚Plaintiffs‛), four former employees at
6 certain Applebee’s‖restaurants‖owned‖and‖operated‖in upstate New
7 York by‖T.L.‖Cannon‖Corp.‖(‚Cannon‛),‖filed‖suit against Cannon in
8 the United States District Court for the Northern District of New
9 York.1 The amended complaint alleged a collective action for
10 violation of the Fair Labor Standards Act and a putative class action
11 for violations of the New York Labor Law. Plaintiffs alleged that
12 Cannon had a policy of not paying hourly employees an extra hour
13 of pay when working a ten-hour work day as was then required by
14 N.Y. Comp. Codes R. & Regs. tit. 12, § 137-1.7‖(the‖‚spread-of-hours‛‖
1 Defendants also included corporate affiliates of Cannon and officers of the Cannon entities.
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1 claim).2 Plaintiffs also alleged that Cannon required its managerial
2 staff to subtract pay for statutorily-mandated rest breaks that the
3 employees did not actually take‖(the‖‚rest-break‛‖claim).3
4 Following discovery, Plaintiffs moved to certify subclasses
5 corresponding to each New York Labor Law claim pursuant to Rule
6 23(b)(1) and Rule 23(b)(3) of the Federal Rules of Civil Procedure.
7 With respect to Rule 23(b)(3), Plaintiffs argued that issues common
8 to the question of liability predominated over any individual
9 questions relating to damages. The district court referred Plaintiffs’
2 Effective January 1, 2011, N.Y. Comp. Codes R. & Regs. tit. 12, § 137-1.7 was repealed and its substantive provisions re-promulgated at N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.6. See 32 N.Y. Reg. 26 (Dec. 29, 2010).
3 The New York Labor Law requires that employees be provided with meal breaks of specified lengths based on the times and durations of their shifts. See N.Y. Lab. Law § 162.
Plaintiffs also alleged that Cannon had a policy of not reimbursing its employees for uniforms and not paying its employees laundry fees as was then required by N.Y. Comp. Codes R. & Regs. tit. 12, § 137-1.8. Those New York Labor Law claims, as well as the collective action claims brought under the Fair Labor Standards Act, are not at issue on appeal.
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1 motion to Magistrate Judge David E. Peebles, who issued a report
2 and recommendation on March 5, 2013.
3 With respect to Plaintiffs’ spread-of-hours claim, Magistrate
4 Judge Peebles recommended that Plaintiffs’ motion be granted in
5 part. Magistrate Judge Peebles found that Plaintiffs had satisfied the
6 Rule 23(a) prerequisites to class certification, but only with respect to
7 minimum-wage employees employed between April 2005 and
8 August 2010. Magistrate Judge Peebles also found that the common
9 question of whether Cannon had a policy of depriving minimum-
10 wage employees the extra hour of pay was subject to generalized
11 proof that predominated over individual questions, thus warranting
12 class certification under Rule 23(b)(3).
13 With respect to the rest-break claim, Magistrate Judge Peebles
14 recommended that Plaintiffs’ motion be denied. Magistrate Judge
15 Peebles found that Plaintiffs had satisfied the commonality and
16 typicality requirements of Rule 23(a), but that Plaintiffs could not
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1 satisfy the adequacy of representation requirement because three of
2 the four Plaintiffs, when serving in a managerial capacity, had
3 revised employee timecards to deduct pay for untaken rest breaks.
4 Because Plaintiffs could not satisfy the prerequisites to class
5 certification under Rule 23(a), Magistrate Judge Peebles did not
6 consider whether their rest-break claim warranted class certification
7 under Rule 23(b).
8 Plaintiffs filed timely objections to‖Magistrate‖Judge‖Peebles’s‖
9 report and recommendation. With respect to Plaintiffs’ spread-of-
10 hours claim, Plaintiffs argued that the class should be certified for all
11 claims arising after May 2004, when the statute of limitations first
12 began to run. With respect to their rest-break claim, Plaintiffs
13 argued that they were adequate representatives for a rest-break class
14 because they were not ‚employers‛‖within‖the‖meaning‖of‖the‖New‖
15 York Labor Law who could be subject to liability for revising
16 employee timecards. Moreover, Plaintiffs argued, Roach never
-7- ROACH V. T.L. CANNON CORP.
1 worked in a managerial capacity and therefore was an adequate
2 representative of the class.
3 On March 29, 2013, the district court issued a decision and
4 order in response to Plaintiffs’‖ objections,‖ denying‖ certification‖ on‖
5 both Plaintiffs’ spread-of-hour and rest-break claims. See Roach v.
6 T.L. Cannon Corp., No. 3:10-CV-0591 (TJM/DEP), 2013 WL 1316452
7 (N.D.N.Y. Mar. 29, 2013). The district court noted that the Supreme
8 Court’s‖ decision‖ in‖ Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013),
9 had‖ issued‖ after‖ Magistrate‖ Judge‖ Peebles’s‖ report‖ and
10 recommendation, and that, in light of Comcast, class certification was
11 inappropriate. Roach, 2013 WL 1316452, at *3.
12 The district court construed Comcast as holding that‖ ‚*t+he‖
13 failure of the proponent of the class to offer a damages model that
14 [is] ‘susceptible of measurement across the entire class for purposes
15 of Rule 23(b)(3)’ *is+‖fatal‖to‖the‖certification‖question.‛‖‖Id. (quoting
16 Comcast, 133 S. Ct. at 1433). Plaintiffs’‖ view that the presence of
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1 individualized damages was not fatal to the predominance inquiry,
2 the district court concluded, was therefore contrary to Comcast. Id.
3 Having so construed Comcast, the district court analyzed
4 whether either the spread-of-hours or rest-break claim merited
5 certification. Without considering whether there existed any
6 common questions of law or fact with respect to Plaintiffs’ spread-
7 of-hours‖ claim,‖ the‖ district‖ court‖ explained‖ that‖ ‚damages‖ in‖ this‖
8 putative‖class‖are‖.‖.‖.‖highly‖individualized.‛‖‖Id. Because Plaintiffs
9 did‖ not‖ offer‖ a‖ ‚model‖ of damages‖ susceptible‖ of‖ measurement‛‖
10 across the putative class, the district court concluded that ‚Rule‖ 23‖
11 certification must be denied for Plaintiffs’‖ failure to satisfy their
12 requirements under Rule‖ 23(b)(3).‛‖ ‖ Id. (citing Comcast). Given its
13 exclusive reliance on Comcast, the district court did not address
14 Plaintiffs’ objections‖ to‖ Magistrate‖ Judge‖ Peebles’s‖ report‖ and‖
15 recommendation. Id. at *4.
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1 The‖ district‖ court’s‖ resolution of Plaintiffs’ rest-break claim
2 was substantially identical. Without considering whether there
3 existed any common questions of law or fact, the district court
4 concluded‖ that‖ ‚proof‖ of‖ damages‖ on‖ this‖ claim‖ is‖ highly‖
5 individualized‛‖ and‖ ‚*q+uestions‖ of‖ individual‖damage‖calculations‖
6 will inevitably overwhelm‖ questions‖ common‖ to‖ this‖ class.‛‖ ‖ Id. at
7 *4-5. Again, citing Comcast,‖ the‖ district‖ court‖ concluded‖ that‖ ‚class‖
8 certification‖ of‖ this‖ claim‖ fails‖ under‖ Rule‖ 23(b)(3).‛‖ Id. at *5. As
9 with the spread-of-hours claim, the district court relied exclusively
10 on Comcast and did not address Plaintiffs’‖ objections‖ to‖ the report
11 and recommendation. Id. at *4.
12 Plaintiffs sought leave to file this interlocutory appeal
13 pursuant to 28 U.S.C. § 1292(e) and Rule 23(f) of the Federal Rules of
14 Civil Procedure, which motion we granted.
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1 DISCUSSION
2 Plaintiffs argue that the district court erred in holding that,
3 after Comcast, class certification pursuant to Rule 23(b)(3) requires a
4 finding that damages are measurable on a classwide basis. We
5 review a district‖court’s‖class‖certification‖determination‖for‖abuse‖of‖
6 discretion,‖ applying‖ a‖ ‚noticeably‖ less‖ deferential‛ standard when
7 the district court has denied class certification. Augustin v. Jablonsky
8 (In re Nassau Cnty. Strip Search Cases), 461 F.3d 219, 224-25 (2d Cir.
9 2006) (quoting Parker v. Time Warner Entm’t Co., 331 F.3d 13, 18 (2d
10 Cir. 2003)) (internal quotation mark omitted). While we review the
11 district‖court’s‖construction‖of‖legal‖standards‖de novo, we review the
12 district‖court’s‖application‖of‖those‖standards‖for whether the district
13 court’s‖ decision‖ falls‖ within‖ the‖ range‖ of‖ permissible‖ decisions.‖‖
14 Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010).
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1 I
2 A class may be certified only if, ‚after‖a‖rigorous‖analysis,‛‖the‖
3 district court is satisfied that the prerequisites of Rule 23(a) of the
4 Federal Rules of Civil Procedure are met. Comcast Corp. v. Behrend,
5 133 S. Ct. 1426, 1432 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes,
6 131 S. Ct. 2541, 2551 (2011)). Those prerequisites require showing
7 that: (1) ‚the class is so numerous that joinder of all members is
8 impracticable‛; (2) ‚there are questions of law and fact common to
9 the class‛; (3) ‚the claims or defenses of the representative parties
10 are typical‛ of those of the class; and (4) ‚the representative parties
11 will fairly and adequately protect the interests of the class.‛ Fed. R.
12 Civ. P. 23(a).
13 In addition, the district court must be satisfied that
14 certification is appropriate under Rule 23(b). Comcast, 133 S. Ct. at
15 1432. One of the bases for certification under Rule 23(b), at issue
16 here, allows for certification if both (1) ‚questions‖ of‖ law‖ or‖ fact‖
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1 common to class members predominate over any questions affecting
2 only individual members,‛ and‖ (2)‖ ‚a‖ class‖ action‖ is‖ superior‖ to‖
3 other available methods for fairly and efficiently adjudicating the
4 controversy.‛ Fed.‖R.‖Civ.‖P.‖23(b)(3).‖‖Predominance‖is‖satisfied‖‚if‖
5 resolution of some of the legal or factual questions that qualify each
6 class member’s‖ case‖ as a genuine controversy can be achieved
7 through generalized proof, and if these particular issues are more
8 substantial‖ than‖ the‖ issues‖ subject‖ only‖ to‖ individualized‖ proof.‛‖‖
9 Catholic Healthcare W. v. US Foodservice Inc. (In re U.S. Foodservice Inc.
10 Pricing Litig.), 729 F.3d 108, 118 (2d Cir. 2013) (quoting UFCW Local
11 1776 v. Eli Lilly & Co., 620 F.3d 121, 131 (2d Cir. 2010)) (internal
12 quotation marks omitted).
13 Prior‖to‖the‖Supreme‖Court’s‖decision‖in‖Comcast,‖it‖was‖‚well-
14 established‛‖in‖this‖Circuit‖that‖‚the‖fact‖that‖damages‖may‖have‖to‖
15 be ascertained on an individual basis is not sufficient to defeat class
16 certification‛‖under‖Rule‖23(b)(3).‖‖Seijas v. Republic of Argentina, 606
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1 F.3d 53, 58 (2d Cir. 2010); see McLaughlin v. Am. Tobacco Co., 522 F.3d
2 215, 231 (2d Cir. 2008), abrogated in part on other grounds by Bridge v.
3 Phx. Bond & Indem. Co., 553 U.S. 639 (2008); see also Dukes, 131 S. Ct.
4 at 2558‖ (‚*I+ndividualized‖ monetary‖ claims‖ belong‖ in‖ Rule‖
5 23(b)(3).‛). ‚*T+he‖fact‖that‖damages‖may have to be ascertained on
6 an individual basis‛‖ was‖ simply one ‚factor that we [had to]
7 consider in deciding whether issues susceptible to generalized proof
8 ‘outweigh’‖ individual‖ issues‛ when certifying the case as a whole.
9 McLaughlin, 522 F.3d at 231.
10 We do not read Comcast as overruling these decisions.
11 II
12 In Comcast, the plaintiffs filed a class-action antitrust suit
13 claiming‖ that‖ Comcast’s‖ acquisition‖ of‖ competitor‖ cable television
14 providers in sixteen counties clustered around Philadelphia violated
15 the Sherman Act. 133 S. Ct. at 1430. Comcast’s‖ clustering‖ strategy‖
16 had increased its market share in that geographical area from
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1 around twenty to seventy percent. Id. The plaintiffs sought to
2 certify the class of Comcast subscribers in that geographical area
3 under Rule 23(b)(3), claiming that questions of law and fact common
4 to the class predominated over any questions affecting individual
5 members. Id. The district court held, and neither the plaintiffs nor
6 defendants contested on appeal, that in order to meet the
7 predominance requirement, the plaintiffs had to show that: (1) the
8 injury‖ suffered‖ by‖ the‖ class‖ was‖ ‚capable‖ of‖ proof‖ at‖ trial‖ through‖
9 evidence that [was] common to the class rather than individual to its
10 members‛;‖ and‖ (2)‖ ‚the‖ damages‖ resulting‖ from‖ *the‖
11 anticompetitive] injury were measurable on a class-wide basis
12 through‖ use‖ of‖ a‖ common‖ methodology.‛‖ ‖ Id. (first alteration in
13 original) (quoting Behrend v. Comcast Corp., 264 F.R.D. 150, 154 (E.D.
14 Pa. 2010)) (internal quotation marks omitted).
15 The plaintiffs offered four theories of antitrust injury or
16 impact, only one of which the district court concluded was
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1 susceptible of classwide proof:‖ Comcast’s‖ clustering around
2 Philadelphia reduced competition from ‚overbuilders,‛ competitors
3 who build competing cable networks where there exists an
4 incumbent cable provider.4 Id. at 1430-31. To prove that the
5 damages resulting from the anticompetitive injury were measurable
6 on a classwide basis, the plaintiffs offered expert testimony that
7 modeled the class damages based on all four theories of antitrust
8 injury; the model did not isolate damages resulting from the
9 ‚overbuilder‛‖ theory.‖ ‖ Id. at 1431. Nevertheless, both the district
10 court and the United States Court of Appeals for the Third Circuit
11 concluded that the expert testimony was sufficient to establish that
12 damages resulting from the ‚overbuilder‛‖ theory‖ of‖ injury were
13 measurable on a classwide basis. Id. Rejecting the notion that the
4 The other three theories of injury were that‖ Comcast’s‖ clustering: (1) permitted it to withhold local sports programming from satellite competitors, thereby reducing competitor market penetration; (2) ‚reduced the level of ‘benchmark’ competition on which cable customers rely to compare [provider] prices‛; and (3) ‚increased‖ Comcast’s‖ bargaining‖ power‖ relative‖ to content providers.‛ Comcast, 133 S. Ct. at 1430-31.
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1 plaintiffs were required to offer a model of classwide damages that
2 attributed damages only to the ‚overbuilder‛ theory of injury, the
3 Court of Appeals explained that the plaintiffs were required merely
4 to provide assurance that, ‚if they can prove antitrust impact, the
5 resulting damages are capable of measurement and will not require
6 labyrinthine‖individual‖calculations.‛‖‖Id. at 1431 (quoting Behrend v.
7 Comcast Corp., 655 F.3d 182, 206 (3d Cir. 2011)) (internal quotation
8 mark omitted). A more rigorous analysis, the Court of Appeals
9 concluded,‖ would‖ constitute‖ an‖ ‚attac*k+‖ on‖ the‖ merits‖ of‖ the‖
10 methodology [that] [had+‖no‖place‖in‖the‖class‖certification‖inquiry.‛‖‖
11 Id. (first and third alterations in original) (quoting Behrend, 655 F.3d
12 at 207) (internal quotation marks omitted).
13 The Supreme Court granted certiorari. After noting that
14 neither‖ party‖ had‖ contested‖ the‖ district‖ court’s‖ holding‖ that‖ Rule
15 23(b)(3) predominance required a showing that damages resulting
16 from the anticompetitive injury were measurable on a classwide
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1 basis, id. at 1430, the Court identified the question presented as
2 whether‖the‖plaintiffs‖‚had‖.‖.‖.‖establish*ed+‖that‖damages‖could‖be‖
3 measured‖on‖a‖classwide‖basis,‛‖id. at 1431 n.4. The Court reversed,
4 holding that the plaintiffs’‖ expert‖ testimony‖ failed‖ to‖ carry‖ that‖
5 burden. Id. at 1432-33.
6 The Court began by noting that it had recently held that
7 establishing the Rule 23(a) prerequisites to class certification
8 required‖ a‖ ‚rigorous‖ analysis,‛‖ which‖ would‖ ‚frequently entail
9 ‘overlap with the merits of the plaintiff’s underlying claim.’‛ Id. at
10 1432 (quoting Dukes, 131 S. Ct. at 2551).‖ ‖ Those‖ ‚same‖ analytical‖
11 principles,‛‖the‖Court‖explained,‖govern‖the‖Rule‖23(b)‖inquiry.‖‖Id.
12 The Court then held that the‖ plaintiffs’‖ expert‖ testimony‖ did‖
13 not withstand the ‚rigorous‖ analysis‛ for the Rule 23(b)(3)
14 predominance test. The Court explained that the plaintiffs would be
15 entitled only to damages resulting from their theory of injury. Id. at
16 1433. Thus,‖ ‚a‖ model purporting to serve as evidence of damages
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1 . . .‖ must‖ measure‖ only‖ those‖ damages‖ attributable‖ to‖ that‖ theory.‛‖‖
2 Id. ‚If‖ the‖ model‖ does‖ not‖ even‖ attempt‖ to‖ do‖ that,‛‖ the‖ Court‖
3 explained,‖‚it‖cannot‖possibly‖establish‖that‖damages‖are‖susceptible‖
4 of measurement across the entire class for purposes of Rule
5 23(b)(3).‛‖ ‖ Id. Because‖ there‖ was‖ ‚no‖ question‛‖ that‖ the‖ damages‖
6 model‖was‖not‖based‖solely‖upon‖the‖‚overbuilder‛‖theory‖of‖injury
7 certified by the district court, but also included calculations
8 accounting for the three other theories of injury, id. at 1433-34, the
9 Court‖concluded‖that‖‚Rule‖23(b)(3)‖cannot‖authorize‖treating‖*cable+‖
10 subscribers within the Philadelphia cluster as members of a single
11 class,‛‖id. at 1435.
12 Comcast, then, did not hold that a class cannot be certified
13 under Rule 23(b)(3) simply because damages cannot be measured on
14 a classwide basis. See id. at 1430 (noting that the requirement of a
15 classwide‖ damages‖ model‖ ‚is‖ uncontested‖ here‛);‖ id. at 1436
16 (Ginsburg and Breyer, JJ., dissenting) (‚*T+he‖decision‖should‖not‖be‖
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1 read to require, as a prerequisite to certification, that damages
2 attributable‖ to‖ a‖ classwide‖ injury‖ be‖ measurable‖ ‘on‖ a‖ class-wide
3 basis.’‛).‖ ‖ Comcast’s‖ holding‖ was narrower. Comcast held that a
4 model for determining classwide damages relied upon to certify a
5 class under Rule 23(b)(3) must actually measure damages that result
6 from‖the‖class’s‖asserted‖theory‖of‖injury; but the Court did not hold
7 that proponents of class certification must rely upon a classwide
8 damages model to demonstrate predominance. See id. at 1433; see
9 also In re Deepwater Horizon, 739 F.3d 790, 817 (5th Cir. 2014)
10 (construing‖ the‖ ‚principal‖ holding‖ of‖ Comcast [as being] that a
11 ‘model‖ purporting‖ to‖ serve as evidence of damages . . . must
12 measure‖only‖those‖damages‖attributable‖to‖th*e+‖theory’‖of‖liability‖
13 on‖which‖the‖class‖action‖is‖premised‛ (ellipsis and second alteration
14 in original) (quoting Comcast, 133 S. Ct. at 1433)); Butler v. Sears,
15 Roebuck & Co., 727 F.3d 796, 799 (7th Cir. 2013) (construing Comcast
16 as‖holding‖only‖‚that‖a‖damages suit cannot be certified to proceed
-20- ROACH V. T.L. CANNON CORP.
1 as a class action unless the damages sought are the result of the
2 class-wide injury that‖the‖suit‖alleges‛ (emphasis in original)); Leyva
3 v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013) (interpreting
4 Comcast to hold that class-action‖ plaintiffs‖ ‚must‖ be‖ able‖ to‖ show‖
5 that their damages stemmed from the‖ defendant’s‖ actions‖ that‖
6 created the legal liability‛); accord Catholic Healthcare W. v. US
7 Foodservice Inc. (In re U.S. Foodservice Inc. Pricing Litig.), 729 F.3d 108,
8 123 n.8 (2d Cir. 2013) (‚Plaintiffs’ proposed measure for damages is
9 thus directly linked with their underlying theory of classwide
10 liability . . . and is therefore in accord with the Supreme Court’s
11 recent decision in Comcast .‖.‖.‖.‛). Indeed, as the Court explained, if
12 all four types of anticompetitive injury had been approved for
13 certification by the district court, the‖ plaintiff’s‖ damages
14 methodology ‚might have been sound, and might have produced
15 commonality‖of‖damages.‛ Comcast, 133 S. Ct. at 1434.
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1 To be sure, Comcast reiterated that damages questions should
2 be considered at the certification stage when weighing
3 predominance issues, but this requirement is entirely consistent with
4 our‖ prior‖ holding‖ that‖ ‚the‖ fact‖ that‖ damages‖ may‖ have‖ to‖ be‖
5 ascertained on an individual basis is . . . a factor that we must
6 consider in deciding whether issues susceptible to generalized proof
7 ‘outweigh’‖ individual‖ issues.‛‖ McLaughlin, 522 F.3d at 231. The
8 Supreme Court did not foreclose the possibility of class certification
9 under Rule 23(b)(3) in cases involving individualized damages
10 calculations.
11 Our reading of Comcast is consistent with the‖Supreme‖Court’s‖
12 statement in Comcast that its decision turned‖ upon‖ ‚the‖
13 straightforward application of class-certification‖ principles.‛‖ ‖ 133‖ S.‖
14 Ct. at 1433. Our reading is also consistent with the interpretation of
15 those Circuits that have had the opportunity to apply Comcast. See
16 AstraZeneca AB v. United Food & Commercial Workers Unions & Emp’rs
-22- ROACH V. T.L. CANNON CORP.
1 Midwest Health Benefits Fund (In re Nexium Antitrust Litig.), No. 14-
2 1521, 2015 WL 265548, at *8, *10 (1st Cir. Jan. 21, 2015) (explaining
3 that Comcast ‚simply‛‖requires that a damages calculation reflect the
4 associated theory of liability, and discussing the‖ ‚well-established‛‖
5 principle that individualized damages do not automatically defeat
6 Rule 23(b)(3) certification); Dow Chem. Co. v. Seegott Holdings, Inc. (In
7 re Urethane Antitrust Litig.), 768 F.3d 1245, 1257-58 (10th Cir. 2014)
8 (‚Comcast did not rest on the ability to measure damages on a class-
9 wide‖basis.‛); In re Deepwater Horizon, 739 F.3d at 817 (rejecting, post-
10 Comcast,‖ the‖ argument‖ ‚that‖ certification under Rule 23(b)(3)
11 requires a reliable, common methodology for measuring classwide
12 damages‛ (internal quotation marks omitted)); Butler, 727 F.3d at 801
13 (holding,‖upon‖the‖Supreme‖Court’s‖grant‖of‖certiorari,‖vacatur, and
14 remand in light of Comcast,‖ that‖ ‚the‖ fact‖ that‖ damages‖ are‖ not‖
15 identical across all class members should not preclude class
16 certification‛);‖ Glazer v. Whirlpool Corp. (In re Whirlpool Corp. Front-
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1 Loading Washer Prods. Liab. Litig.), 722 F.3d 838, 860-61 (6th Cir. 2013)
2 (noting that Comcast was‖ ‚premised‖ on‖ existing‖ class-action
3 jurisprudence‛‖and‖that‖‚it‖remains‖the‖‘black‖letter‖rule’‖that‖a‖class‖
4 may obtain certification under Rule 23(b)(3) when liability questions
5 common to the class predominate over damages questions unique to
6 class‖ members‛);‖ Leyva, 716 F.3d at 513 (reiterating Ninth Circuit
7 precedent, post-Comcast,‖ that‖ ‚damage‖ calculations‖ alone‖ cannot‖
8 defeat‖certification‛ (quoting Yokoyama v. Midland Nat’l Life Ins. Co.,
9 594 F.3d 1087, 1094 (9th Cir. 2010)) (internal quotation mark
10 omitted)).
11 III
12 Cannon does not argue that Comcast precludes certification
13 whenever damages are not measurable on a classwide basis. Rather,
14 Cannon maintains that the district court denied class certification
15 because Plaintiffs had failed to establish that any common issues of
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1 law and fact predominated over the individualized nature of the
2 damages inquiry.
3 But in considering whether to certify Plaintiffs’‖ spread-of-
4 hours and rest-break claims under Rule 23(b)(3), the district court
5 did not evaluate whether the individualized damages questions
6 predominate over the common questions of liability identified by
7 Magistrate Judge Peebles. The district court also did not consider
8 that Magistrate Judge Peebles had identified such common
9 questions. Rather,‖ the‖ district‖ court’s‖ reasoning‖ was limited to an
10 analysis of whether Plaintiffs’‖ damages would be capable of
11 measurement on a classwide basis. Because the district court
12 concluded damages were not capable of measurement on a
13 classwide basis—and only because the district court concluded
14 damages were not capable of measurement on a classwide basis—
15 the district court refused to certify Plaintiffs’ spread-of-hours and
16 rest-break claims. That holding was not required by Comcast, was
-25- ROACH V. T.L. CANNON CORP.
1 contrary to the law of this Circuit—left undisturbed by Comcast—
2 that individualized damages determinations alone cannot preclude
3 certification under Rule 23(b)(3), see Seijas v. Republic of Argentina,
4 606 F.3d 53, 58 (2d Cir. 2010), and cannot support the district‖court’s‖
5 denial of Plaintiffs’‖motion‖for‖certification.
6 Accordingly, because we do not read Comcast as precluding
7 class certification where damages are not capable of measurement
8 on‖ a‖ classwide‖ basis,‖ we‖ reject‖ the‖ district‖ court’s‖ sole‖ reason for
9 denying Plaintiffs’‖motion for class certification.
10 CONCLUSION
11 For the foregoing reasons, we VACATE the order of the
12 district court denying class certification, and REMAND.5
5 We decline Plaintiffs’‖invitation‖to‖order‖class‖certification‖on‖the‖present‖ record. Whether to certify a class is within the discretion of the district court, largely because it is the district court that has the ‚inherent power to manage and control pending litigation.‛ Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010) (quoting Maldonado v. Ochsner Clinic Found., 493 F.3d 521, 523 (5th Cir. 2007)) (internal quotation mark omitted). We cannot hold, on this record, that an order denying certification upon consideration of the Rule 23(b)(3) standards would be outside the range of permissible decisions upon the proper application of Comcast. See id.
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