Yesterday, in an unpublished opinion, the Sixth Circuit refused Rule 23(f) certification of an antitrust class action. In re VHS of Michigan, Inc.

The Sixth Circuit had previously remanded this case for the district court to revisit its class certification decision in the wake of the Supreme Court’s decision in Comcast. The district court, however, determined that Comcast did not change its initial class certification decision, and recertified the class. This prompted the defendants to seek Rule 23(f) certification, arguing that the district court abused its discretion in applying Comcast.

The Sixth Circuit was not persuaded, interpreting Comcast to apply when multiple theories exist and the combined effects can result in aggregated damages. In this case, by contrast, the district court determined that the two liability theories were mutually exclusive, minimizing any risk of aggregated damages. Applying the Sixth Circuit’s Rule 23(f) standard, the Court determined that the defendants had not made a showing that they were likely to establish an abuse of discretion. After making that decision, the Court cursorily noted that the other Rule 23(f) standards were not satisfied either.

As a practice pointer, the Sixth circuit denied defendants’ motion for leave to file a reply in support of their petition for review “because the pertinent rule does not permit the filing of a reply.” The Court cited FRAP 5 in this respect, but other panels of the Court have not recognized Rule 5 as a barrier to a reply (although they may have disregarded or stricken a reply for other reasons). Since the order is unpublished, it remains to be seen whether the Court was intending to establish a going-forward rule that would completely prohibit replies in these circumstances. The Court also seems to, more often than not, issue unpublished orders when ruling on Rule 23(f) petitions. This leaves the body of binding precedent on this topic somewhat thin, but may be explained if most of the Rule 23(f) petitions are fact-dependent.