To do otherwise, Justice Elena Kagan said, might subject plaintiffs to an even "higher burden" of proof than they have to show at trial.
But Justice Antonin Scalia said he thinks it is proper to settle such questions early on in the suit. "The reason is the enormous pressure to settle once the class is certified," Scalia said.
Justice Stephen Breyer initially was out of the Amgen case, presumably because his 2011 financial disclosure report showed he owned $15,000 to $50,000 worth of Amgen stock. But the court said in June that Breyer would take part in the case, indicating he had sold his Amgen holdings.
In the Comcast case, the justices also faced the issue of whether to require plaintiffs to prove more of their case earlier in the process. The Comcast subscribers argue that doing so would lead to even more limits on class actions.
The court should decide both cases by June.
The cases are Comcast v. Behrend, 11-864, and Amgen v. Connecticut Retirement Plans and Trust Funds, 11-1085.