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The Supreme Court heard oral arguments this past Monday in Comcast v. Behrend, No. 11-864, a widely-watched antitrust monopolization case in which the Court is expected to clarify the extent to which district courts may be required to examine the admissibility at trial of expert evidence when deciding class certification motions under Rule 23 of the Federal Rules of Civil Procedure. 

Under Rule 23, a proposed class must satisfy certain prerequisites to be certified before the case may proceed to the stage where the merits of the claim are litigated on a class-wide basis.  Last year, in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Court explained that district courts must undertake a “rigorous analysis” of the evidence and arguments to ensure that the proponent of class certification satisfies the requirements of Rule 23; the Court observed that “frequently [the] rigorous analysis will entail some overlap with the merits of the plaintiffs’ underlying claim.”  131 S. Ct. at 2551.  The question in the wake of Wal-Mart Stores is to what extent the merits can and must be considered at the class certification stage. 

In particular, in Comcast, the Court will review whether a district court may certify a class without deciding whether the expert evidence presented in support of class certification would be admissible under the Federal Rules of Evidence at trial.