The Supreme Court granted certiorari in Comcast Corp. v. Behrend, No. 11-864 (docket) to decide the following question, as reformulated by the Court: “[w]hether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” (For more background on this case, see my June 26, 2012 blog post.)  The Court heard oral argument in this case earlier this week, on November 5th.  Here are a few highlights from the transcript: 

• Justices Kagan and Ginsburg questioned whether, with respect to the question presented as reformulated, Comcast had waived its rights by not filing a Daubert motion below and expressly challenging the admissibility of the expert report.  (Transcript, at 17-18.)  Justice Sotomayor suggested that, setting aside Daubert, an expert report would have to be probative and persuasive in order to form the basis for certification of a class.  (Id. at 22, 26-27.)  Justices Alito and Scalia then suggested that there may be no difference between determining probative value and a Daubert determination, and Justice Kagan also suggested that “it’s always true, isn’t it, that evidence that is inadequately probative is inadmissible?” (Id. at 27-30.)  Chief Justice Roberts suggested that the Court could simply answer the question presented and then remand the case for resolution of the waiver issue.  (Id. at 30-31.)  Justice Sotomayor later pointed out that Daubert may be unnecessary where evidence is not probative or reliable, and Justice Scalia appeared to agree with that.  (Id. at 48, 50.)  This suggests that the Court might not be concerned with the waiver issue. 
• Justice Kagan stated that she was struggling with whether there was a question of law in dispute between the parties, given the plaintiff’s apparent agreement that Daubert applies at class certification (when properly invoked), and that the plaintiff has the burden of proving by a preponderance of the evidence that damages can be measured on a class-wide basis with common proof.  Plaintiff’s counsel indicated that there was agreement on the legal standard.  (Id. at 38-39.)  The absence of a disagreement on the legal standard might suggest the possibility that the Court could find that certiorari was improvidently granted.  However, in a colloquy with Justice Sotomayor and Chief Justice Roberts, Plaintiff’s counsel suggested that the standard should be whether it is more likely than not that the evidence can be used at trial.  (Id. at 44-45.)  This appears to suggest that there is a disagreement between the parties – it appears that Comcast’s position is that the ultimate admissibility (or probity) of the evidence must be decided at the class certification stage, not merely whether it is more likely than not that the evidence can be used.  That might put the question presented in greater focus. 
• Justice Kennedy suggested that perhaps the Daubert standard should apply differently where the judge is the finder of fact (as is the case at class certification, and would be at trial in Behrend). (Id. at 41.)