Scalia’s Comcast legacy is at stake in Google Adwords case

May 3, 2016

The best test of the future of class action litigation at the U.S. Supreme Court may be the justices’ disposition of Google’s petition for certiorari in a case involving claims that the company deceived hundreds of thousands of California advertisers about the placement of Adwords ads.

Google contends that the 9th U.S. Circuit Court of Appeals disregarded two of Justice Antonin Scalia‘s landmark class action opinions – 2011’s Wal-Mart v. Dukes and, even more flagrantly, 2013’s Comcast v. Behrend – when it certified a class despite Google’s assertion that individual issues predominate because every advertiser’s supposed damages must be calculated separately. The 9th Circuit said individualized damages cannot, alone, defeat class certification. Google’s Supreme Court counsel from Hogan Lovells argued that the 9th Circuit’s position conflicts with Justice Scalia’s opinion in Comcast and with (mostly pre-Comcast) holdings from five federal appellate circuits.

The lead plaintiffs in the case, including the personal injury firm Pulaski & Middleman, filed their opposition brief on Monday, arguing that there’s actually no controversy over Comcast’s impact. According to class lawyers from Schubert Jonckheer & Kolbe, the Supreme Court itself said in its recent decision in Tyson Foods v. Bouaphakeo that individualized damages don’t preclude class certification “when one or more of the central issues in the action are common to the class and can be said to predominate.”

Nor are the lower courts divided on how to interpret Comcast, according to the opposition brief. Defendants tried to read a broad rule into Justice Scalia’s admonition in Comcast that damages must be “susceptible of measurement across the entire class” in order for a class to be certified. But the opposition brief, quoting “Newberg on Class Actions,” said the federal circuits have uniformly rejected the defense theory that Comcast bars class certification unless damages can be decided on a classwide basis. (I’ve said the same thing.)

Since Justice Scalia’s death, as you know, the Supreme Court has not granted review of any class action challenge. (It also postponed oral arguments in the one major class action case on its docket, Microsoft’s procedural protest of a plaintiffs’ lawyer tactic to resurrect class actions after the denial of class certification.) Petitioners for certiorari have baited the justices with big class action questions like the constitutional standing of uninjured plaintiffs and a clear circuit split over what evidence may be used to establish class membership. The court has so far not bitten.

But four justices – Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Anthony Kennedy – joined Scalia in the Comcast majority opinion. If Google and its Hogan counsel of record, Neal Katyal, are right that federal appellate judges have misread Comcast, you’d think those four justices would want to set lower courts straight.

Conversely, if the court declines to take up the Google case, it’s a pretty clear signal that the Supreme Court’s era of class action reformation is over. (And that class counsel of record Noah Schubert wrote a good opposition brief.)

Google has two weeks to reply to the class filing.

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