Class Actions Brief Blog

The Fourth Circuit recently sent a strong statement reinforcing the “rigorous analysis” required by Rule 23 in damages class actions. The message was blunt: class certification orders “are not participation trophies that are handed out to everyone on the tee ball team.” State of Rhode Island Office of the General Treasurer v. The Boeing Co., 182 F.4th 422, 447 (4th Cir. 2026) (“Boeing”). Instead, under long-standing Supreme Court precedent, plaintiffs seeking certification of a damages class must offer a reliable method of proving class-wide damages that fits their theory of the case.

More than 10 years ago, in Comcast Corp. v. Behrend, 569 U.S. 27 (2013), the Supreme Court held that plaintiffs seeking class certification must offer evidentiary proof of a methodology under which damages can be calculated on a class-wide basis. Under Comcast, a plaintiff who lacks a class-wide damages model that fits its theory of liability cannot satisfy Rule 23(b)(3)’s requirement that common questions predominate over individual questions.

Although its importance is undeniable, Comcast has not achieved uniform acceptance or application. Some lower courts have adopted a lenient interpretation, holding that Comcast did not materially change the predominance analysis. These courts may be satisfied if there is any link between the plaintiff’s damages methodology and theory of liability. See 2 Newberg & Rubenstein on Class Actions § 4:54 n.19 (6th ed. 2026). Other courts have taken the strict view that Comcast substantially raised the bar for class certification, and that predominance fails when the plaintiff cannot show a substantial connection between the liability theory and the damages methodology. Id. n.23. A third group of courts has adopted a middle ground under which, if there is not a sufficient nexus between the liability theory and the damages methodology, the court can certify the class for liability purposes only. Id. n.25.

To the extent the application of Comcast in the Fourth Circuit was cloudy, that fog has now lifted. In its July 2026 ruling in Boeing, the Fourth Circuit issued a forceful reminder that Comcast still plays a central role in the Rule 23(b)(3) predominance analysis.

Boeing concerned an appeal from an order granting class certification. The plaintiffs in that case were Boeing shareholders who alleged the company made misstatements about its emphasis on safety, giving rise to liability for securities fraud. In support of their damages theory, the plaintiffs relied on an expert who opined that damages could be determined on a class-wide basis using the “out of pocket” methodology.

The Fourth Circuit reversed the class certification order because plaintiffs failed to meet the high bar set by Comcast. The plaintiffs’ damages expert provided only a general explanation of what securities fraud damages are without explaining how those damages would be calculated. The expert offered a menu of options for calculating damages but never committed to a specific method. The plaintiffs also failed to articulate their theory of liability and thus could not sufficiently connect any damages methodology to a theory of liability. In rejecting the expert’s analysis under Comcast and reversing the class certification order, the Fourth Circuit laid down several key principles that will govern the damages and predominance analysis going forward:

(1) Plaintiffs must explain how damages will be measured in their specific case. “A menu of options that the party will decide on later is not a damages methodology.” Boeing, 182 F.4th at 440.

(2) Plaintiffs must explain how damages will be calculated on a class-wide basis. Without sufficient explanation, the court cannot evaluate whether individual issues will predominate over common issues.

(3) The damages model must be consistent with the plaintiff’s liability theory. This means plaintiffs must commit to a liability theory at the class certification stage and craft a damages model that matches it.

(4) The damages model must allow “‘a just and reasonable inference’ of damages.” Id. at 441 (quoting Comcast, 569 U.S. at 33). In other words, speculation about damages will not suffice.

The Fourth Circuit’s ruling in Boeing may spur change in other circuits, too. In another Boeing investor case pending in the Seventh Circuit, Boeing and several amici recently filed briefs urging the Seventh Circuit to adopt the Fourth Circuit’s strict approach and reverse certification of a class based on the plaintiffs’ failure to comply with Comcast. The issue is also currently before the Sixth Circuit in a similar investor suit. It remains to be seen, however, whether other circuits will follow the Fourth Circuit’s lead.

In the Fourth Circuit, though, there is no doubt that Comcast is alive and well after Boeing. Litigants seeking class certification in the region should expect the district courts to scrutinize their damages models and certainly should not expect any “participation trophies.”