Comcast v. Behrend

PETITIONER: Comcast Corp., et al.
RESPONDENT: Caroline Behrend, et al.
LOCATION: United States District Court for the Eastern District of Pennsylvania

DOCKET NO.: 11-864
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 569 US (2013)
GRANTED: Jun 25, 2012
ARGUED: Nov 05, 2012
DECIDED: Mar 27, 2013

Barry Barnett - for the respondents
Miguel A. Estrada - for the petitioners

Facts of the case

In 2003, Caroline Behrend, along with Stanford Glaberson, Joan Evanchuk-Kind, and Eric Brislawn, brought an antitrust class action suit against Comcast Corporation. The petitioners were all Comcast cable customers, alleging that the company obtained a monopoly on the cable market in violation of the Sherman Antitrust Act. By contracting with competitors to swap customers and subsume the regional cable markets, the company excluded and prevented competition amongst cable providers in the Philadelphia area. The proposed class of plaintiffs included all cable television customers in the Philadelphia area who subscribe or subscribed to Comcast's video programming services since December 1999.

In May 2007, the US District Court for the Eastern District of Pennsylvania certified the class, allowing the case to move forward. In light of a new antitrust decision in 2008 on class certification from the U.S. Court of Appeals for the Third Circuit, the District Court reconsidered its certification decision. The court held evidentiary hearings in October 2009, which consisted of dozens of expert testimonies and depositions. Following the hearings, the District Court recertified the class, finding sufficient evidence of a common impact amongst class members and a common methodology available to measure damages on a class-wide basis. Comcast subsequently appealed and the Court of Appeals affirmed the lower court decision.


Is a district court allowed to certify a class without adequate admissible evidence that damages may be measured and quantified on a class-wide basis?

Media for Comcast v. Behrend

Audio Transcription for Opinion Announcement - March 27, 2013 (Part 3) in Comcast v. Behrend
Audio Transcription for Opinion Announcement - March 27, 2013 (Part 1) in Comcast v. Behrend
Audio Transcription for Oral Argument - November 05, 2012 in Comcast v. Behrend

Audio Transcription for Opinion Announcement - March 27, 2013 (Part 2) in Comcast v. Behrend

Ruth Bader Ginsburg:

As you have just heard, Justice Breyer and I joined by Justices Sotomayor and Kagan think this case is not fit for the Court's review.

We would dismiss the writ as in providently granted.

We dissent on grounds both procedural and substantive.

I will note the procedural slips, Justice Breyer, the substantive fault.

First, the Court wrote its own question presented.

Comcast question concerned Rule 23's prerequisites for cross-action certification.

The revised question instead of focusing on Rule 23 as whether the plaintiff's class had introduced admissible evidence including expert testimony showing the damages could be proved on a class-wide basis.

In fact, Comcast raised no objection to the admission of the damages model designed by plaintiff's expert, so no question of admissibility was preserved.

Realizing that the question it framed was in inept, the Court addressed a different question.

“Did plaintiff fail to show the damages could be awarded on a class-wide basis?”

The Court settled on that question, however, after briefing an argument ended.

Understandably, plaintiffs followed the Court's instruction and trained their written and oral arguments on admissibility, not Rule 23 requirements.

Thus, the plaintiffs had no unclouded opportunity to be brief and argue with precision the issue the Court decides against them today and that's not rigid.

Second, the Court's ruling is good for this day in case only for it depends on an oddity, the plaintiff's failure to oppose the need to prove damages on a class-wide basis through a common methodology.

In the mine run of cases, class-certification under Rule 23 (b)(3) is proper when liability questions come into the class predominate even if damages are not provable in the aggregate.

That is black letter law and nothing in the Court's opinion today disturbs the legions of federal court decisions that have treated liability on the class basis, damages in smaller units or individually.