Good for this day only? The odd circumstances and potential consequences of the Supreme Court’s decision in Comcast
by Leah Nicholls, Kazan-Budd Attorney
Last week, amid the hustle and bustle of oral argument in the gay marriage cases, the Supreme Court issued its latest class action decision: Comcast Corp. v. Behrend. The Court, 5-4, reversed class certification in the antitrust case brought on behalf of Philadelphia-area Comcast subscribers. The case alleged that Comcast had illegally created a monopoly in the area by buying the local franchises of competing cable providers — a monopoly that allowed Comcast to jack up its prices. This is the type of claim that class actions were meant to deal with: Each Comcast customer’s damages are modest enough that it wouldn’t make sense for them to bring a costly antitrust suit individually, but collectively, they could hold Comcast accountable for its illegal practices — illegal practices that have netted Comcast millions of dollars annually.
The Court, in an opinion written by Justice Scalia, held that the proposed class failed to meet Rule 23’s commonality requirement because, in the Court’s opinion, the expert report the plaintiffs presented as evidencing the classwide calculation of damages was not sufficiently tied to the plaintiffs’ one surviving theory of liability. At this point, it’s unclear whether Comcast will impact how courts around the country assess motions for class certification or whether, as the dissent explains, “[t]he Court’s ruling is good for this day and case only.”
Comcast is an odd case for several reasons, but, as the dissent points out, it’s supremely odd because the Court rewrote the question presented not once, but twice. Normally, the party bringing the case to the Supreme Court articulates the question it would like the Court to answer, the Courts grants review on that question, the parties brief and argue that question, and then the Court decides it.
Not so here. First, the Court declined to grant review of the question on which Comcast sought review. Instead, the Court granted review on the question whether the district court could certify a class action without deciding whether the expert report about classwide damages was admissible evidence. This was the issue briefed by the parties, but, as it turns out, Comcast had waived its ability to challenge admissibility, so a decision on that issue wasn’t going to impact the outcome of the case (thus, the dissent says the Court ought to have dismissed the case as improvidently granted). Instead, without the benefit of briefing on the issue, the Court decided whether the expert report actually addressed the question whether classwide damages could be calculated as to the remaining theory of liability. This is quite problematic because it means that the losing side — here, the plaintiff class — had no opportunity to brief the question the Court decided. Not only does this strike me as unfair, but it also strikes me as overreaching.
Although Comcast exhibits a willingness of the Court to go beyond the scope of the appeal, it might not have much impact. First, not every class action will involve the issue of classwide damages at the class certification stage — a point raised by the dissent. Second, at its core, this is a decision about the Court’s view as to how closely a single piece of evidence (the expert report) applies to the specific theory of a particular case at one stage of its proceeding.
My concern, however, is that lower courts might see this as a signal that they should more heavily scrutinize evidence at the certification stage, that the certification stage ought to look more like the merits stage. The first chance to see what other courts do with Comcast is in the Whirlpool Corp. v. Glazer case; following Comcast, the Court granted the petition in Whirlpool, vacated the decision below, and remanded it to the Sixth Circuit for reconsideration in light of Comcast. Whirlpool involves claims by a class of washing machine purchasers that the washers have a design defect that allows mold to grow in the washers. The dispute is, more or less, over how much the class has to prove about the uniformity of the plaintiffs’ claims to get certified. The Sixth Circuit had held that the class could proceed because all the washers were subject to the same design defect (of which Whirlpool was allegedly well aware, but sold the washers anyway), even though some class members had not yet experienced mold problems. On remand, the Sixth Circuit could decide that Comcast was about a particular piece of evidence and does not impact its decision — that Comcast was a decision for one day and one case only. Or, it could carefully reexamine the evidence and apply a more searching analysis. Definitely something to keep an eye on!
Along with AAJ and AARP, Public Justice filed an amicus brief in Comcast in support of the plaintiff class.