We recently reported on the Supreme Court’s GVR (grant, vacate, and remand) of Arlington Video Productions v. Fifth Third Bancorp. In the prior post, we said it would be interesting to see what impact, if any, the Sixth Circuit concludes Comcast has on the class certification analysis on how the Sixth Circuit interpreted the GVR. Earlier this week, the Sixth Circuit provided the answers in an unpublished opinion. The Sixth Circuit answered the latter question fairly succinctly in its opinion stating that “the GVR order does not necessarily imply that Supreme Court has in mind a different result in this appeal.” On the first question, the impact of Comcast and related recent Supreme Court cases, the Sixth Circuit effectively punted to the district court on these issues. The Court noted that the district court’s decision preceded the Supreme Court’s trilogy of decisions in Walmart v. Dukes, Amgen Inc. v. Connecticut Retirement Plans, and Comcast Corp. v. Behrend. The Court also noted that “this Court has issued numerous class action decisions since late 2010.” Although the prior opinion in Arlington Video detailed the reasons why the plaintiff may be able to satisfy the class action prerequisites under Rule 23, the Court clarified that it was not intending to certify the class for the first time on appeal, but rather “to provide guidance to the district court in making its decision on remand.” This week’s opinion, therefore, does not engage in any lengthy or substantive analysis of the Rule 23 requirements as the prior (vacated) panel decision did. Instead, it remands the case to the district court to determine the first instance where the certification was appropriate. There are several cases percolating at the Sixth Circuit involving class action issues such as the impact of Comcast and the related recent Supreme Court precedent. However, it looks like we will have to wait another day for further guidance from the Court.
