Comcast v. Behrend
This case involves an antitrust action alleging that Comcast’s acquisitions and “swap agreements” with competing cable providers were anti-competitive and led to monopolization by Comcast of the Philadelphia market. Comcast was selling off cable systems in other areas, and purchasing more in the Philadelphia market, so that it would have enough market power to raise its prices without fear of serious competition. The district court held a lengthy evidentiary hearing, including substantial expert testimony introduced by the plaintiffs (there was dispute as to whether that evidence would qualify under the Daubert standards, but Comcast alleged that the testimony was not adequately scrutinized), and ultimately certified the class in a lengthy decision. The Third Circuit affirmed, holding that class certification hearings need not become full-blown trials in which all factual disputes are actually resolved. In early October 2012, the Supreme Court heard Comcast’s challenge to the district court’s certification of the class. Comcast argued that the district court erred by not requiring the plaintiffs to prove through admissible evidence that the element of damages could be proven on a class-wide basis before certifying the class. The Supreme Court stated the Question Presented as follows: “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” Public Justice, the American Association for Justice and AARP filed a joint amicus brief in support of plaintiffs with the Supreme Court. The brief — which was written by John Vail of the Center for Constitutional Litigation with input from Public Justice’s Arthur Bryant and Paul Bland — argues that issues such as this are better addressed through the rule making process, which is better adapted to weighing empirical data about the impact of changes to the burdens and methods of proof in litigation. The brief also (1) refutes the notion that class actions should be disfavored (because the fear of any case that is certified forces innocent corporations into settlements), and (2) refutes the notion that the Court should create a one-size fits all rule for proving damages in class actions.