On April 15, the U.S. Supreme Court declined a request by Visa and Mastercard to review a D.C. Circuit decision that appeared to add to a circuit split about how lower courts are to determine whether common issues predominate under Federal Rule of Civil Procedure 23(b)(3). 

The case, Visa Inc. v. Nat’l ATM Council, Inc., Case No. 23-814, was part of a long-running dispute between the card companies and ATM operators about ATM fees.  In July, the D.C. Circuit upheld the certification of three different Plaintiff classes over the card companies’ argument that the district court had failed to perform a “rigorous analysis” about whether class-wide issues predominated.  Nat’l ATM Council, Inc. v. Visa Inc., 2023 WL 4743013 (D.C. Cir. 2023).  Although it noted that the district court’s analysis was “notably terse,” the D.C. Circuit found no error in the lower court’s holding that Plaintiffs need only demonstrate a “colorable” method of proving class-wide injury and that the Plaintiffs’ evidence satisfied that test.  Rejecting the card companies’ argument that Plaintiffs’ class-wide injury methodology failed to weed out uninjured class members, the court observed that “Defendants’ contention that their model showing unharmed members is more accurate and credible than Plaintiffs’ different models showing that all members were harmed is … precisely the kind of material factual dispute” that should be resolved at the merits, not class certification, stage.  Id. at *11.    

In seeking certiorari, Visa and Mastercard argued that the D.C. Circuit failed to ensure that the district court performed the requisite “rigorous analysis” in evaluating predominance.  According to the card companies, the D.C. Circuit had joined the Eighth and Ninth Circuits in adopting a “far too porous” standard that “do[es] not require a court to make findings to resolve disputes relevant to the predominance requirement as long as the plaintiffs’ proposed method is plausible[.]”  On the other hand, the companies said, the Second, Third, Fifth, and Eleventh Circuits “require[] careful consideration of [whether] . . . plaintiffs have met their burden of proving predominance … and the resolution of any factual or legal dispute relevant to the predominance inquiry.”  Had the D.C. Circuit followed the rule in these four circuits, “it would have had to vacate the order certifying the classes in this case, because certification cannot be based merely on a colorable method of proving of classwide injury (with material factual disputes over the reliability of plaintiffs’ proposed method deferred to the merits stage).”  This apparent circuit split, the companies argued, warranted Supreme Court intervention.  But, at least on this occasion, the Supreme Court disagreed.  

This case serves as a reminder that class certification arguments that may be accepted in one circuit may be rejected in another.  The Supreme Court may eventually weigh in again on the depth of analysis a court must perform at the class certification stage, but it chose not to do so in this case.