Over the past two weeks, the United States Supreme Court has repeatedly underscored the importance of having common questions that are susceptible to common answers in cases where plaintiffs are seeking class certification. Most recently, the Court clarified that this requirement, which has now been considered in both antitrust and employment cases, applies with respect to both merits and damages issues. As discussed below, this clarification presents employers with a potent new tool in the defense of class action wage-and-hour cases.

On March 27, 2013, the Court issued its decision in Comcast Corporation v. Behrend, a putative antitrust class action brought on behalf of 2 million cable subscribers in 649 franchise areas alleging overcharging through an alleged attempted monopoly. In considering whether the class should be certified, the Court held that the need for individualized inquiries with respect to damages issues precluded class certification. (Opinion available here.) Moreover, the Court stressed that lower courts must perform a probing analysis when deciding whether to certify a class in order to ensure the existence of common answers to common questions.