Supreme Court to Review Comcast Class Action Lawsuit from Third Circuit
On November 5, 2012, the U.S. Supreme Court heard oral arguments in the class action case Behrend v. Comcast, No. 10-2865 (3rd Cir. 2011), regarding the standards the lower courts apply to class certification.
Plaintiffs are Comcast customers who alleged the defendant engaged in anticompetitive conduction in violation of Section 1 of the Sherman Act. The district court found the class met all four prima facie elements of Rule 23(a): numerosity, commonality, typicality and adequacy, as well as the predominance and superiority requirements of 23(b). The district court later reviewed defendant’s motion to reconsider after the Third Circuit handed down an appeal regarding the predominance requirement as related to the antitrust impact and methodology of damages.
The district court agreed with the plaintiff expert witness who testified as to a methodology to calculate the potential damages. The expert testified that Comcast’s practices of clustering reduced competition and had a direct impact on cable prices the plaintiff-consumers paid.
Comcast argued that the Supreme Court case of Wal-Mart v. Dukes supported the inadequacy of the expert witness’ damages model. The Third Circuit found this unpersuasive, as the discrimination claims in Dukes were factually different than the present case. The Third Circuit held that there must only be a common methodology available to quantify damages, and that the expert satisfied this requirement. The court also reminded defendants that for class certification, it would not inquire as to the merits of the lawsuit. It only requires a showing that it is possible to have a common methodology for damages. However, whether this showing will be sufficient to satisfy the Supreme Court, who has been delivering damning blows to class action cases over the last year, is yet to be seen.
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