     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.


                                          -2-
                            ROACH V. T.L. CANNON CORP.

 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


                                         -3-
                           ROACH V. T.L. CANNON CORP.

 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.


                                          -4-
                           ROACH V. T.L. CANNON CORP.

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.


                                          -5-
                         ROACH V. T.L. CANNON CORP.

 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




                                        -6-
                         ROACH V. T.L. CANNON CORP.

 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




                                        -8-
                          ROACH V. T.L. CANNON CORP.

 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.




                                         -9-
                          ROACH V. T.L. CANNON CORP.

 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.




                                         -10-
                         ROACH V. T.L. CANNON CORP.

 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).




                                       -11-
                         ROACH V. T.L. CANNON CORP.

 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‖




                                       -12-
                          ROACH V. T.L. CANNON CORP.

 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




                                        -13-
                         ROACH V. T.L. CANNON CORP.

 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




                                       -14-
                           ROACH V. T.L. CANNON CORP.

 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




                                           -15-
                           ROACH V. T.L. CANNON CORP.

 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.


                                          -16-
                          ROACH V. T.L. CANNON CORP.

 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




                                        -17-
                         ROACH V. T.L. CANNON CORP.

 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




                                       -18-
                            ROACH V. T.L. CANNON CORP.

 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‖




                                         -19-
                          ROACH V. T.L. CANNON CORP.

 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.




                                           -21-
                          ROACH V. T.L. CANNON CORP.

 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-




                                       -23-
                         ROACH V. T.L. CANNON CORP.

 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




                                       -24-
                         ROACH V. T.L. CANNON CORP.

 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.


                                             -26-
