Whether a class action can be certified under Rule 23(b)(3) when plaintiffs' proposed method of proving classwide injury is merely 'colorable' or 'reasonable' without rigorously excluding uninjured class members

No question identified. : extended, the time for filing a petition for a writ of certiorari will expire on December 26, 2023. The jurisdiction of this Court would be invoked under 28 U.S.C. 1254(1). 1. This case presents the question of whether a class may be certified under Federal Rule of Civil Procedure 23(b) (3) as long as plaintiffs’ proposed method of proving classwide injury 7 can be deemed “colorable,” “reasonable,” and “well-established.” This Court has long maintained that predominance under Rule 23(b) (3) is a “stringent requirement[],” American Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 234 (2013), and a plaintiff’s burden is “demanding,” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623-624 (1997), requiring a “close look” and “rigorous analysis” from the courts, Comcast Corp. v. Behrend, 569 U.S. 27, 34-35 (2013). Accordingly, the extent to which the predominance analysis overlaps with the merits simply “cannot be helped.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 363 (2011). Because “Rule 23’s requirements must be interpreted in keeping with Article III constraints,” Amchem, 521 U.S. at 612-613, that “rigorous analysis” requires courts to find that plaintiffs’ model “establish[es] that damages are susceptible of measurement across the entire class,” Comcast, 569 U.S. at 35 (emphasis added). It would “reduce Rule 23(b) (3)’s predominance requirement to a nullity” to take the view that, “at the class-certification stage[,] any method of measurement is acceptable so long as it can be applied classwide, no matter how arbitrary the measurements may be.” Id. at 36. 2. Applicants own and operate networks that allow consumers to withdraw cash from their bank accounts using automatic teller machines (ATMs). App., infra, 3a. Respondents are two groups of individual cardholders who paid surcharges for certain ATM transactions, and one group of several non-bank, independent ATM operators. Ibid. To withdraw cash from an ATM, a consumer may use an ATM terminal operated by an entity other than the bank that issued the consumer’s payment card. Id. at 3a-4a. In those so-called “foreign” transactions, the ATM terminal communicates with the issuing bank of the consumer’s payment card through an ATM network. Id. at 4a. The ATM network establishes operating rules and default fees that apply to the transaction. Id. at 3a-4a. Most ATM networks have rules prohibiting ATM operators from imposing surcharges on transactions routed over their networks that are higher than the surcharges applied to transactions routed over competing networks -so called rules. Id. at 4a. 3. In 2011, respondents filed three separate class actions alleging that applicants’ non-discrimination rules violate Section 1 of the Sherman Act. App., infra, Sa. According to the complaints, in the absence of applicants’ network rules, bank and independent ATM operators would have lowered surcharges paid by consumers on transactions processed over ATM networks with higher fees. Ibid. All of the complaints sought treble damages -which, according to plaintiffs, total approximately $9 billion -and injunctions barring enforcement of the challenged rules. Id. at Ta. The district court certified respondents’ putative classes. National ATM Council, Inc. v. Visa Inc., Civ. No. 11-1803, 2021 WL 4099451 (D.D.C. Aug. 4, 2021). Writing that “plaintiffs, at this stage in the proceedings, need only demonstrate a colorable method 7 by which they intend to prove class-wide impact,” the court determined that plaintiffs had offered “colorable” and “reasonable” methods by which they “intend[ed] to prove” classwide injury and that no stricter standard was appropriate. Id. at *6. The court acknowledged applicants’ argument that the methodologies plaintiffs offered to prove classwide injury were “hopelessly flawed” because of their failure to identify and winnow out substantial numbers of uninjured class members. Ibid. But the court did not address that critique or t